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CASE NUMBER: 583533 NYC: 235254
FINDINGS OF FACT AND DECISION
Student’s Name: REDACTED
Service District: REDACTED
Impartial Hearing Officer: Ginger James
Date of Filing: September 8, 2022
Hearing Requested by: Parent
Date of Hearing: April 19, 2023
Record Close Date: May 21, 2023
Date of Decision: June 23, 2023
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 15, 2022
Impartial Hearing Officer #1:
REDACTED, Esq.
For the Student:
REDACTED, Esq., Parent’s Attorney #1
For the Department of Education:
REDACTED, District Representative #1
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 16, 2023
Impartial Hearing Officer #1:
REDACTED, Esq.
For the Student:
REDACTED, Esq., Parent’s Attorney #1
For the Department of Education:
REDACTED, District Representative #1
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 30, 2023
For the Student:
REDACTED, Esq., Parent’s Attorney #2
For the Department of Education:
REDACTED, District Representative #1
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 19, 2023
For the Student:
REDACTED, Esq., Parent’s Attorney #2
REDACTED, Program Supervisor of Special Education Services at Provider Agency For the New York City Department of Education: REDACTED, District Representative #2 REDACTED, DOE School Psychologist
BACKGROUND AND POSITIONS OF THE PARTIES
Parent,[1] through counsel, filed a Due Process Complaint (“DPC”) on or about September 8, 2022.
Parent alleges that the Department of Education (“DOE” or “District”) failed to provide Student a free appropriate public education (“FAPE”) on an equitable basis for the 2022-2023 school year. On July 28, 2020, the Committee on Pre-School Education (“CPSE”) drafted an Individualized Education Program (“IEP”) which recommended the following services: Special Education Itinerant Teacher (“SEIT”) Services five hours per week to be administered in a group of two in REDACTED; Speech Language Therapy (“SLT”) as an individual service, two times per week, for 30 minutes, to be administered in REDACTED and one time per week in a group of two for 30 minutes, to be administered in REDACTED; and Occupational Therapy as an individual service, two times per week for 30 minutes, to be administered in English (“the July 2020 IEP”) (Ex. A-2).[2] Parent alleges that for the 2022-2023 school year, the District, through the Committee on Special Education (“CSE”), failed to recommend an appropriate placement for Student when it reduced the prior recommendation of five periods of SEIT services, which had been provided on a 2:1 basis, to three periods of Special Education Teacher Support Services (“SETSS”), to be provided as a group service (Ex. A-2-3; Tr. #3 21, 30).[3] Parent further asserts that because the District failed to provide a proper placement, Parent had to “implement the SEIT program independently and seek reimbursement” (Ex. A-3). [4] Regarding relief, Parent seeks: 1) a finding that the March 2022 IESP constitutes a denial of a FAPE; 2) a finding that the District’s failure to recommend the continuation of the SEIT program is a denial of a FAPE; 3) a finding that the District’s failure to recommend an appropriate placement is a denial of a FAPE; 4) an order that the recommendations contained in the July 2020 IEP continue for the 2022-2023 school year; 5) an order requiring the district to fund compensatory education for any services not provided; 6) an award of attorneys’ fees and expenses; 7) and any other relief that may be just and proper (Ex. A-3-4; Tr. #3 21-22, 31-32). [5], [6]
As a threshold matter, the District seeks dismissal of the DPC based upon Parent’s failure to request special education and related services on or before June 1, 2022, and because N.Y. Educ. Law § 4404 does not allow parents to seek a due process hearing (“DPH”) for the implementation of equitable services (Tr. #3 28-29). Regarding the merits of the case, District Representative #2 asserts that the CSE properly determined that Student was entitled to SETSS and not SEIT services and that a reduction in the frequency of special education services was warranted (Tr. #3 28-29, 74-75). District Representative #2 contends that the CSE made appropriate recommendations for SLT and that Student is not entitled to compensatory SLT (Tr. #3 75-76). The Representative further claims that Parent has not met their burden to prove the appropriateness of the services (Tr. #3 29).
Parent’s Attorney #2 maintains that the District should be time-barred from raising the June 1st issue for the first time at the hearing (Tr #3 30-31), and also argues that the District waived June 1st notice in this matter (Tr. #3 31). on an equitable basis for the 2022-2023 school year. I decline to order SEIT services, but have determined that Student is entitled to five hours of SETSS per week. Additionally, I find that Parent has not properly raised issues regarding SLT, and thus, decline to increase Student’s SLT. I further find that the program Parent selected is appropriate and that equities lie in Parent’s favor. Accordingly, I am ordering the District to fund SETSS and OT at a “reasonable market rate” not to exceed $195 per hour. I am also ordering that the District fund a bank of compensatory services to account for the District’s failure to provide Student with SLT as recommended on the March 2022 IESP. I am basing the hours on a 36-week school year instead of the 40 weeks as requested. I decline to award attorneys’ fees and expenses.
PROCEDURAL HISTORY
As of September 8, 2022, the date of the filing of the DPC, Student was attending “Private School” for their kindergarten year (Ex. I-1, 4). [7]
After the filing, the Resolution Period began. It ended on October 8, 2022, with no resolution reached.
On October 19, 2022, Impartial Hearing Officer (“IHO”) #1 was appointed to this case. That appointment was rescinded, and on March 6, 2023, I was appointed IHO to preside over this matter.
No Pre-Hearing Conference (“PHC”) was held.
On December 15, 2022, Parent’s Attorney #1 and District Representative #1 appeared before IHO #1. IHO #1 granted a joint request to extend the compliance date so that Parent’s Attorney #1 could continue exploring settlement with the District, and adjourned the matter to January 25, 2023 (Tr. #1 4-5). On February 16, 2023, Parent’s Attorney #1 and District Representative #1 appeared before IHO #1. IHO #1 informed the attorney and the representative that the IHO would seek their positions on pendency by email. [8]
On March 6, 2023, IHO #1 issued an Order on Pendency (IHO Ex. II; Tr. #2 10-11; Tr. #3 19-20).
On March 30, 2023, Parent’s Attorney #2 and District Representative #1 appeared before me virtually for the DPH. Due to an unexpected scheduling issue, I rescheduled the DPH for April 17, 2023, with a backup date of April 19, 2023 (Tr. #2 11-12, 14). I granted the Parties’ request to extend the compliance date (Tr. #2 12-14).
On April 19, 2023, Parent’s Attorney #2 and District Representative #2 (“the Parties”) appeared before me virtually for the DPH. District Representative #2 proffered Exhibits 1 through 6, including a document containing the proposed direct testimony of DOE School Psychologist (Tr. #3 22-23). Parent’s Attorney #2 had no objection to their introduction, and I admitted Exhibits 1 to 5 into evidence (Tr. #3 24).[9] I admitted Exhibit 6, the direct testimony, after the witness swore to or affirmed the contents of the document (Tr. #3 32-33). Parent’s Attorney #2 submitted Exhibits A through J, which included affidavits by Parent (Ex. E), Program Supervisor of Special Education Services at Provider Agency (“Program Supervisor”) (Ex. F), and Financial Officer at Provider Agency (“Financial Officer”) (Ex. G) (Tr. #3 24-26). District Representative #2 had no objection to the introduction of any of the exhibits, and I admitted all into evidence (Tr. #3 25-26). District Representative #2 presented an opening statement (Tr. #3 28-29), followed by Parent’s Attorney #2 (Tr. #3 30-32). DOE School Psychologist testified through an affidavit and live direct testimony (Ex. 6; Tr. #3 34-36), as well as through cross-examination and additional questioning (Tr. #3 36-48, 48-49; 49-53). District Representative #2 declined to cross-examine Financial Officer (Tr. #3 55) and Parent (Tr. #3 72-73). Program Supervisor testified through affidavit, cross-examination and additional questioning (Ex. F; Tr. #3 58-64, 64-70, 71-72, 72). District Representative #2 presented a closing statement (Tr. #3 74-76), followed by Parent’s Attorney #2 (Tr. #3 76-78).
FINDINGS OF FACT
After a full review of the record generated at the hearing, I make the following findings of fact and determinations. Unless otherwise noted, I found all witnesses credible.
Student has been identified as a Student with Speech or Language Impairment (Ex. D-1). Student experiences difficulties in many academic and social emotional areas, and requires a lot of extra assistance (Ex. E-1). For example, Student exhibits cognitive weaknesses, poor language skills, attentional struggles, deficient fine motor skills, limited coordination and sensory integration difficulties (Ex. D-1, 2). Student is making progress with SETSS and OT and requires the supports they provide to continue improving and to remain in a “mainstream placement” (Ex. E-1; Ex. F-4).
Student and Parent reside in New York City and Student is attending Private School for the 2022-2023 school year (Ex. A). Private School is located within the geographic boundaries of the DOE.
The July 2020 IEP
On July 28, 2020, the CPSE convened to determine Student’s eligibility for services through the CPSE and to develop an IEP for the 2020-2021 school year (Ex. B-1, 2). At the time, Student was redacted years old (Ex. B-1, 3). The CPSE relied upon various assessments and observations to develop Student’s IEP. Assessments revealed that Student’s cognitive ability was in the “borderline delayed” range and their adaptive behavior composite score, which included communication, daily living and socialization skills, was assessed in the “moderately low range” (Ex. B-2, 3). Student tested in the “well below average” range in numbers, letters and words subtests and in the “below average” range in various other areas (Ex. B-3). Student’s receptive and expressive language skills were each assessed in the “severely delayed range” (Ex. B-3). Student demonstrated weaknesses and delays in all nonverbal/visual motor skill tasks and in some of the verbal skills tasks (Ex. B-4).
Additionally, assessments revealed “significant delay of at least 33%” in Student’s gross motor, fine motor, visual motor and sensory processing skills (Ex. B-3, 6, 7). Student displayed decreased tone and strength in hands, generalized upper extremity weakness, limited coordination, poor bilateral coordination skills, disorganized motor planning, and pressure modulation issues (Ex. B-6, 7). Student also exhibited poor attending and focusing skills, distractibility, and excessive fidgeting, which required constant redirection, prompting, direct eye contact and “constant individual instruction” (Ex. B-4, 5, 6).
The CPSE classified Student as a “Preschool Student with a Disability,” and developed an IEP recommending: SEIT services to be provided five hours per week in a group of two to be administered in REDACTED; SLT to be provided individually two times per week and in a group of two one time per week each for 30 minutes to be administered in REDACTED; and OT to be provided individually two times per week for 30 minutes to be administered in English (Ex. B-1, 13; Ex. E-1; Ex. A-2). The projected date of annual review was July 27, 2021 (Ex. B-2).
The March 2022 IESP
Prior to March 21, 2022, DOE School Psychologist was assigned to the CSE Team responsible for conducting Student’s “Turning 5” meeting (Tr. #3 38-39).[10] DOE School Psychologist has been employed by the DOE as a school psychologist since 2014, and from 2018 through 2022, was employed through CSE REDACTED (Ex. 6-1; Tr. #3 36-37). During the period from 2018 to 2022, they were responsible for attending the IEP/IESP meetings of every student they worked with, and therefore, conducted hundreds of meetings (Tr. #3 37-38). They are familiar with all of the special education services provided by the DOE (Ex. 6-1). Part of their duties include creating IEPs and IESPs, holding IEP and IESP meetings, and conducting evaluations and assessments (Ex. 6-1). To prepare for the March 2022 meeting, DOE School Psychologist reviewed all relevant pre-school evaluations and documentation provided to the DOE, including progress reports (Tr. #3 49). DOE School Psychologist never observed Student or spoke with Student’s SEIT providers (Tr. #3 39), and only spoke with Parent at the IEP meeting and to schedule it (Tr. #3 47).
On March 21, 2022, approximately three days before Student’s 5th birthday, the CSE convened to determine Student’s eligibility for services through the CSE and to develop an IESP for the 10-month 2022-2023 school year (Ex. D-1, 8; Ex. E-2; Tr. #3 38-39). Parent, DOE Special Education Teacher and DOE School Psychologist attended the meeting (Ex. 6-1, 2; Tr. #3 34; Ex. D-9).
The CSE determined that Student’s full scale IQ is “borderline delayed” and that Student exhibits weaknesses in cognitive abilities (Ex. D-1). For example, Student lacks basic number concepts and counting skills, could not follow commands without gestural cues, could not understand verbs in context, and did not understand simple spatial concepts (Ex. D-1). Student could sort items and divide them into two, count 1:1 correspondence up to three items and identify small numbers and understood the basic numeric value of one (Ex. 6-2).
Student could not place pictures in a sequence, understand the schedule of the day, identify photographs or label familiar objects, discriminate between letters and non-letters, or identify letters they already learned (Ex. 6-2). Student had a limited understanding of the concepts of amounts, could not identify quantities and could not recognize differing sizes (Ex. 6-2). The CSE described Student’s language skills as “poor” (Ex. D-1).
Student displayed various deficiencies in motor skills and presented with sensory integration difficulties (Ex. D-2). Student also exhibited poor attending and focusing skills, distractibility, and excessive fidgeting (Ex. D-1, 2).
Parent explained that Student is a visual learner and that although Student has made “good progress,” Student continues to experience delays and “is still working on preacademic skills” (Ex. D-1). Parent also raised that Student has some toileting skills issues, plays well with others and is “typically developing” (Ex. D-2).
As a result, the CSE classified Student as a Student with Speech or Language Impairment and developed an IESP recommending: SETSS to be provided in a group three periods per week to be administered in REDACTED; SLT to be provided individually two times per week for 30 minutes to be administered in REDACTED; and OT to be provided individually two times per week for 30 minutes to be administered in English (Ex. D-6; Ex. E-2; Ex. A-2).[11] The CSE also recommended various management needs, including: use of visuals; repetition of phrases or paraphrasing directions; language model[ing]; use of retell and prediction activities; prompting; restating; and using gestures (Ex. D-2). The CSE created six goals for Student to address various needs (Ex. D-3-5). Services were to begin on September 8, 2022 (Ex. D-1).
The CSE’s recommendations resulted in a change from SEIT services to SETSS and a decrease by two sessions per week compared with the CPSE’s recommendations (compare Ex. B-1, 13 with Ex. D-6; Ex. E-2). The CSE’s recommendations also reflected the elimination of SLT as a group service one time per week (compare Ex. B-1, 13 with Ex. D-6).
Events Since the Creation of the March 2022 IESP, Including the Provision of Services
On August 25, 2022, Parent, through Parent’s Attorney #1, sent the District a Ten Day Notice (“TDN”) (Ex. C; Ex. E-2).[12] Pursuant to the TDN, Parent was “very concerned that the IEP Team removed the SEIT Program and replaced it with so few periods of SETSS” (Ex. C-2). Parent asserted that it appeared that the CSE “had already made up its mind before the meeting to remove the SEIT program which was being serviced on a two to one basis” (Ex. C-2). Parent “rejecte[ed] the most recent reduced recommendations,” and concluded that they would place Student in Private School and seek reimbursement or direct funding for the “prior recommended services” (Ex. C-2). The District did not respond (Ex. E-2).
The District did not implement any services for Student, and Parent contacted Provider Agency (Ex. E-2). Provider Agency has been administering, and is able to continue providing, five hours of “Special Education services” per week and OT two times per week for 30 minutes to Student for the 2022-2023 school year (Ex. E-2; Ex. F-2; Ex. G-1). Provider Agency is unable to provide SLT to Student this year (Tr. #3 67). Student’s services are given at Private School (Ex. F-3).
Student’s SETSS services are administered by Direct Providers #1 and #2 (Ex. F-3). Direct Provider #2 serves as the Educational Supervisor overseeing the providers’ work and assists with “identifying interventions and goals to address a student’s weaknesses and promote independence” in their areas of difficulty (Ex. F-3). Student’s OT is provided by Occupational Therapist (Ex. F-3). In addition to providing 1:1 service for Student, Direct Providers #1 and #2 and Occupational Therapist prepare for sessions, create goals, write progress reports and meet with teachers and parents (Ex. F-3; Tr. #3 62). Progress Reports are provided in advance of every IESP meeting (Tr. #3 62).
Student’s progress is measured through quarterly assessments, meetings between providers and staff, direct observations and daily session notes (Ex. F-3). Student is making progress with these services (Ex. F-4; Ex. I-1). Program Supervisor believes Student requires the continuation of the five periods of SETSS on an individual basis and the two sessions per week of OT given the difficulties Student still encounters (Ex. F-4; Ex. I-2, 3, 4, 5).
Provider Agency classifies SEIT services and SETSS generally as “special education services” (Tr. #3 59). To determine the appropriate service for each Student, they look at the student’s academic and social-emotional needs (Tr. #3 60). Preschool students tend to learn more through play (Tr. #3 60). SEIT services focus on social emotional development, pre-readiness skills and academics (Tr. #3 60, 65). By contrast, school-age children learn more through direct instruction (Tr. #3 60). SETSS focuses on the academics and how the social emotional component affects the academics (Tr. #3 65). Provider Agency determined that Student requires a hybrid of both because although Student is in kindergarten, Student needs to learn the “foundational skills of learning” (Tr. #3 65), but is learning the academics through play (Tr. #3 65-66).
Although Student was recommended to receive group SEIT services pursuant to the July 2020 IEP and group SETSS pursuant to the March 2022 IESP, Provider Agency is providing SETSS in a 1:1 format because Provider Agency does not offer group SETSS services (Ex. F-2; Tr. #3 66-67). [13] Provider Agency further determined that Student requires special education services to be taught mainly as a pull-out (Tr. #3 60-61). Direct Providers teach Student discreet skills, but work in the classroom as needed and collaborate with the teacher (Tr. #3 61).
On June 23, 2022, Parent signed a contract obligating Parent to seek direct payment from the DOE to Provider Agency for services rendered (Ex. E-2; Ex. H). The contract further provides that Parent “is fully and completely” responsible to pay for any hours of services not paid for by the DOE (Ex. E-2; Ex. H). The contract states that Provider Agency will administer “Intensive 1:1 Special Services” to Student, with the amount of services to be determined by “the therapist, [Provider Agency], and the parents of the child and approved by the Special Services program director” from September 1, 2022 through June 30, 2023 (Ex. H). The contract does not list any specific services to be provided to Student (Ex. H). Parent is being charged $195 per hour for all services (Ex. H).[14] A portion of these rates funds: 1:1 supervision; educational resources and support; professional development and materials; employment taxes; administrative costs; and overhead costs (Ex. G-1). Parent requires direct funding because it would be an “extreme financial hardship” for them to pay for the services, requiring them to seek “outside financial assistance” to pay for the services (Ex. E-3).
“MOTION TO DISMISS”
Raising of the June 1st Issue The District seeks dismissal of the DPC based upon Parent’s failure to request special education and related services on or before June 1, 2022 (Tr. #3 28-29). During their opening statement, District Representative #2 asserted that students who are parentally placed are not entitled to services automatically each year, and that their parents must request services by June 1st of the preceding school year (Tr. #3 28). Parent’s Attorney #2 countered that the District should be timebarred from raising this issue for the first time at the hearing (Tr #3 30-31). Parent’s Attorney #2 further asserts that the IEP meeting conducted on March 21, 2022 resulted in the creation of an IESP with an implementation date of September 8, 2022, and therefore, Parent did not need to notify the District prior to June 1st of their request for services (Tr. #3 31). Finally, the District failed to follow its own “guidebook” to issue a letter to the parents reminding them of the statutory responsibility (Tr. #3 31).
Analysis- General Overview of The Statute New York State Education Law § 3602-c states, “[b]oards of education of all school districts of the state shall furnish services to student who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent or person in parental relation of any such student.” Regarding students with disabilities, barring certain exceptions, “such a request shall be filed with the trustees or board of education of the school district of location on or before the first of June preceding the school year for which the request is made . . .” N.Y. Educ. Law § 3602-c (2)(a) (emphasis supplied).
Analysis- The District’s Failure to Prove the Affirmative Defense of June 1st Notice District Representative #2 waited until their opening statement to first raise the June 1st issue. Although District Representative #2 asserted that Parent was required to request equitable services in advance of June 1, 2022, the Representative failed to appreciate that they carried the burden to prove that Parent had not timely requested the services. I find the District failed to meet its burden to prove that Parent did not file a request for services prior to June 1, 2022. The DOE’s argument raises an affirmative defense, as it contains new facts to be established (elements of notice and of a date certain) that would have the intended effect of denying the Parent’s claims. See, e.g., Carter v. Eighth Ward Bank, 33 Misc. 128 (Sup. Ct. N.Y. Cty 1900) (“an affirmative defense can . . . consist only of new matters constituting a defence [sic], i.e., new matter which, assuming the complaint to be true, constitutes a defence [sic] to it”). Further, under the IDEA and the NY State Education Law, school districts have the burden of proof that a FAPE has been provided to the student, except that where tuition reimbursement is sought, the parent has the burden of proof with respect to the appropriateness of the parent’s chosen educational placement. See Education Law § 4404(1)(c); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012).
I find that despite the fact that Parent filed this matter on September 8, 2022, that IHO #1 was appointed on October 19, 2022, and that I was appointed on March 6, 2023, District Representative #1 never raised this issue with either IHO. More than that, as already noted, District Representative #1 and Parent’s Attorney #2 appeared before me on March 30, 2023 to commence the DPH, but due to a scheduling issue, I rescheduled the hearing for April. The District did not raise the June 1st issue then. Instead, the District waited until the hearing formally commenced, and waited until their opening statement, to first make this argument, thereby depriving Parent of any notice of their intent to seek dismissal of this matter. I also find that it is undisputed that on August 25, 2022, Parent sent the District a TDN explaining, inter alia, their concerns with the IESP that had been drafted and that they would implement the services and seek direct funding or reimbursement (Ex. C-2-3; E-2). The District failed to respond (Ex. E-2), including to inform Parent that Student was not entitled to receive services because they had not been requested in a timely manner. Regardless, none of the District’s exhibits or testimony demonstrated whether Parent provided notice in advance of June 1, 2022, whether a search was made of such notice, or even how June 1st notices are received from parents. By failing to do so, the District failed to prove the affirmative defense that Parent did not provide June 1st notice. Therefore, I reject the District’s argument for this reason alone. Additional Analysis- Exception to the June 1st Statutory Provision- The Statutes Although I am denying the District’s motion on that basis, I find the District’s narrow interpretation is not entirely supported by the law and that the idea of potentially denying Student all special education and related services pursuant to N.Y.S. Educ. Law § 3602-c for the entirety of the 2022-2023 school year runs counter to the spirit of the IDEA and New York’s statutes and regulations related to the provision of special education and related services, particularly in light of equitable considerations. Accordingly, even if the District had properly asserted and proved the affirmative defense, I would still find, as a matter of law, that the June 1st requirement did not pertain to the Student under the circumstances of this case.
Educ. Law § 3602-c(2) provides, inter alia: a. 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 or person in parental relation of any such student. Such a request for career education or services to gifted students shall be filed with the board of education of the school district in which the parent or person in parental relation of the student resides on or before the first day of June preceding the school year for which the request is made. In the case of education for students with disabilities, such a request shall be filed with the trustees or board of education of the school district of location on or before the first of June preceding the school year for which the request is made . . . provided that where a student is first identified as a student with a disability after the first day of June preceding the school year for which the request is made . . . and prior to the first day of April of such current school year, such request shall be submitted within thirty days after such student is first identified. For students first identified after March first of the current school year, any such request for education for students with disabilities in the current school year that is submitted on or after April first of such current school year, shall be deemed a timely request for such services in the following school year.
b. (1) For the purpose of obtaining education for students with disabilities, as defined in paragraph d of subdivision one of this section, such request shall be reviewed by the committee on special education of the school district of location, which shall develop an individualized education service program for the student based on the student's individual needs in the same manner and with the same contents as an individualized education program. The committee on special education shall 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.
Review of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter.
(Emphasis added.)
As the statute states, the June 1st notice applies to all students, specifying and separating requests for gifted students, career education, and students with disabilities.[15] Notably, only with respect to students with disabilities – education and services must be administered on an “equitable basis” – meaning fairly – but also “as compared to” students with disabilities in public schools, and other NPS students,[16] within the same district. This clearly signals a level of parity between services rendered to dual enrollment NPS students and services for public school students with disabilities, who must receive a FAPE under the IDEA.
The District’s argument necessarily relies upon two assumptions. First, that providing notice is an annual obligation and second, that failing to provide a written notice by the June 1st preceding the school year at issue precludes any recovery. I am cognizant of the fact that a “plain reading” of the statute suggests that June 1st notice is an absolute, unambiguous obligation, which is consistent with the doctrine that legal text must be given effect, to the extent possible, as it was written by the Legislature.[17] However, nothing in § 3602-c(2) explicitly states that the request must be made every preceding June 1st. There is also nothing in the law that explicitly describes a complete bar to any services as the only consequence for failing to provide the notice.
Regardless of which reading is applied, the June 1st clause should not be applied without weighing its relationship to the “equitable basis, as compared to” clause, because provisions within the same statute that pertain to the same subject matter are to be read in conjunction with each other. Here, the “services” that parents must request by June 1st are the very same special education and services that are to be administered “on an equitable basis” when “compared to” students with disabilities in public schools. Application of the June 1st requirement should thus reflect a consideration of its effect on the obligation to ensure that NPS students with disabilities receive services “on an equitable basis” to their public school counterparts.
The District’s narrow interpretation of the June 1st notice and the complete deprivation of special education services that ensue from such a narrow interpretation also fails to ensure that NPS students with disabilities receive services on an equitable basis as compared to their public school counterparts because public school students with disabilities are not subject to such harsh outcomes. The IDEA’s primary notice provision for parents is the filing of a TDN, and the law expressly allows for discretionary reduction or denial of payment when that requirement is violated,[18] not the automatic and complete bar to any recovery, resulting from the Department’s reading of the June 1st provision. This exposes an obvious tension between the two clauses: if NPS students with disabilities are to receive services comparably to FAPE-eligible students in public schools, then separating out NPS students whose parents did not file a June 1st notice means that those students would no longer receive services on an “equitable basis” with public school students. Nothing in the law mandates that only some NPS students receive services on an equitable basis, and nothing suggests that students with disabilities must be split into two populations – those who notify by June 1st and those who do not – with the result that students who clearly require services are rejected from any recovery simply because a writing was not submitted. This would be especially egregious when, as discussed more fully below, the district is already aware of those students and their needs.
“[W]hen . . . statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used.” People v. Jones, 26 NY3d 730, 733 (2016). Where, however, “an ambiguity exists in a statute, it becomes th[e interpreter]'s duty to construe the statute, as best [one] can, to effectuate the Legislature's intent.” Jericho Water Dist. v. One Call Users Council Inc., 37 A.D.3d 136, 140 (2d Dept. 2006) citing McKinney’s Cons Laws of NY, Book 1, Statutes § 92(a); and Matter of Tompkins County Support Collection Unit v. Chamberlin, 99 N.Y.2d 328, 335 (2003). Adjudicators construing the meaning of legislation are “governed by the principle that we must interpret a statute so as to avoid an unreasonable or absurd application of the law” Matter of NY State Assn. of Criminal Defense Lawyers v. Kaye, 96 NY2d 512, 519 (2002) citing People v. Garson, 6 N.Y.3d 604, 614 (2006) (internal citation and quotation marks omitted), and we must “avoid ascribing a meaning to [a] term that is inconsistent with the statute’s underlying purpose[.]” Jericho Water Dist. v. One Call Users Council Inc., 37 A.D.3d at 142 citing McKinney’s Cons Laws of NY, Book 1, Statutes §§ 96 and 143; and Matter of Tompkins County Support Collection Unit v. Chamberlin, 99 N.Y.2d at 335. In this circumstance, the plain reading of the statute leads to absurd results, thereby necessitating an analysis of the purpose of each of the two statutory clauses. Education Law § 3602-c was originally enacted in 1963, with no amendment regarding students with disabilities until 2005, in response to amendment of the IDEA itself, thereby ensuring that “the state and its local educational agencies will comply with the IDEA.” N.Y. Legislative Service, 2005 N.Y.S.N. 8936, Ch. 352, §§ 1 and 22. The Governor’s memorandum approving the bill acknowledges that the then-new law was “designed to assure access for all high school students in this State to . . . educational programs for students with disabilities[,]” noting that “[m]any public school districts have long been able to offer a variety of . . . special education programs” while “[n]on-public schools, with smaller enrollments and more limited facilities and fiscal resources, have generally been unable to provide such specialized offerings[.]” Governor’s Mem. of Approval, 974 McKinney’s Session Laws of NY, at 2102; 1974 NY Legis. Ann., at 109 (quoted in Bd. of Educ. v. Wieder, 72 N.Y.2d 174 [1988]). The “bill [thus] enable[d] non-public school students to join with our public school students in sharing the benefits from such public programs.” Id.
Subsection 2 of § 3602-c and the two clauses at issue have remained intact since 2005, and despite being labelled “temporary,” the section has been extended eight times. N.Y. Legislative Service, 2021 N.Y.A.B. 7120, Ch. 253, § 1. The broader purpose of § 3602-c, which itself furthers the goals of the IDEA, is reflected in the first part of subsection (2): “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 or person in parental relation of any such student.” Id. (emphasis added).[19] These “services” include “education for students with disabilities,” id., the definition of which incorporates Educ. Law § 4401, see id. at § 3602-c(1)(d), which itself defines a student with a disability as “a person under the age of twenty-one who is entitled to attend public schools . . . and who, because of mental, physical or emotional reasons can only receive appropriate education opportunities from a program of special education.” Educ. Law § 4401(1); see also 8 NYCRR § 200.1(zz). Any interpretation of § 3602-c therefore must reflect the recognition that students with disabilities must receive “a program of special education” in order for their education to be “appropriate.”
The text of § 3602-c also expressly references the IDEA in two places, the first being the proportionate share of IDEA Part B funds expended with respect to NPS students, see Educ. Law § 3602-c(2-a) and (10), and the second being invocation of New York’s IDEA hearing procedures found at § 4404. See Educ. Law § 3602-c(2)(b)(1). The breadth of the definitions, the connections to the IDEA and its purposes, and the phrase “equitable basis” utilized with respect to services, are all factors supporting an understanding that the Legislature envisioned a more generous application of § 3602-c(2), at least on par with services that must be provided to public school students receiving a FAPE under the IDEA, who face no June 1st constraint.
Additional Analysis- Exception to the June 1st Statutory Provision- Other Documents Viewing the “equitable basis” clause through a wider lens does not mean that the June 1st provision has no scope. Indeed, “[i]n the construction of statutes, each word or phrase in the enactment must be given its appropriate meaning.” See Colon v. Martin, 170 A.D.3d 1109, 1111 (2d Dept. 2019) (citing McKinney’s Cons. Laws of NY, Book 1, Statutes § 301).
The requirement that parents of NPS students provide notice serves at least two important purposes: avoiding unfair surprise and resulting prejudice to the District, and ensuring that the District has sufficient information to calculate the expenditure of funds for the following school year. A reconciliation with the “equitable basis” clause must consider these factors.
The degree to which the Department may claim prejudice or surprise has been addressed in at least two documents published by the DOE. When § 3602-c was amended in 2005, the DOE published a guidance memorandum describing its intended application of the law. See 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 (Memorandum from James P. DeLorenzo to education stakeholders and Attachment 1, September 2007).[20] The memorandum recognized that “Section 3602-c . . . was amended to comply with section 612(a)(10) of IDEA . . . to require the public school district where the nonpublic school is located to provide students with disabilities enrolled in nonpublic elementary and secondary schools by their parents with special education services.”
Id. at pp. 1-2 (emphasis removed). Among the school district’s obligations listed in the memorandum are that the school district of location: must consult with nonpublic school representatives regarding special education and related services throughout the school year to ensure that parentally placed nonpublic school students identified through the child find process can meaningfully participate in the special education and related services; must meet their child find obligations; and must conduct a reevaluation at least once every three years of each eligible parentally placed nonpublic school student with a disability. Id. at Attachment 1, pp. 1-3. Additionally, “[t]he CSE of the district of location must develop an IESP for students with disabilities who are NYS residents and who are enrolled by their parents in nonpublic elementary and secondary schools . . . The IESP must be reviewed . . . not less than annually.” Id. at Attachment 1, p. 4 (emphasis added).
Given the level of required contact and the substance of that contact between the school district and the NPS and the parents or guardians of students with disabilities, it is difficult to imagine how the District would be prejudiced by not being notified by June 1st of each year, especially by the parent of a student who has received services previously. In particular, the District retains child find, evaluation, and annual IESP review obligations for each NPS student. If the Department fails to meet these obligations, they should not be rewarded by claiming lack of notice for students whom it should have had awareness. [21] The second DOE document is the Standard Operating Procedures Manual (“SOPM”). Per the SOPM, “[t]he CSE is to send a Request for Special Education Services form to parents of students with IESPs by April 1 every year.” See New York City Department of Education Special Education Standard Operating Procedures Manual.[22] The SOPM continues, “[p]arents of students with IESPs must request special education services for the upcoming school year in writing to the CSE by June 1, and may do so by signing and returning the Request for Special Education Services form.” Id. I do not find that the SOPM supersedes the statute at issue. However, the District itself has publicly suggested a procedure by which they will ensure that parents know about the deadline and will provide a streamlined method for parents to request the services.[23] Interestingly, the District did not address this in any manner nor provide proof that it had supplied the notice they said they would provide. Regardless, I do find that the District’s actions in putting this information into the SOPM supports that the law was not intended to deny services to students of parents or guardians who had no knowledge of the June 1st provision.
Additional Analysis- Exception to the June 1st Statutory Provision- Court of Appeals Finally, the New York State Court of Appeals has weighed in on the scope of the word “shall” as used in § 3602-c. In Bd. of Educ. v. Wieder, 72 N.Y.2d 174 (1988), the Court considered another provision within the same law, § 3602-c(9), which states
Pupils enrolled in nonpublic schools for whom services are provided pursuant to the provisions of this section shall receive such services in regular classes of the public school and shall not be provided such services separately from pupils regularly attending the public schools.
Id. at 184.
The school district in the case argued that (c)(9) “must be read literally as the exclusive vehicle for providing special services to” NPS students with disabilities, and that such services could be provided “only in regular public school classes and programs, and not elsewhere.” Id. at 184. The Court disagreed, finding that “this is not a statute that can be read without consideration of its history and context” as well as without a comparison to other laws. Id. 183-184. The Court then held that the “section does not mandate that a board can provide special services to private school [disabled] children only in regular classes and programs of the public schools, and not elsewhere.”
Id. at 183.
In reviewing the State’s statutory and regulatory approach to equitable special education and services, the Court offered three observations. “First, the paramount principle . . . is concern for a [disabled] child’s educational needs, whether in public or private school . . . in a manner that enables them to participate in regular education services when appropriate.” Id. at 186 citing Educ. Law §§ 4401-a and 4402(2)(a), and 8 NYCRR §§ 200.01 and 200.6. “Second, the statutes and regulations vest in State educational authorities broad responsibility for tailoring programs to a child’s individual needs in the least restrictive environment, considering the appropriateness of the resources of the regular education program.” Id. at 186 citing Educ. Law §§ 4401-a, 4402 and
4403. “Third, to this end, the authorities have a wide choice of programs and services, including home instruction, itinerant teachers, and counseling and psychological services.” Id. at 186 citing Educ. Law §§ 4401(2)(a) and 4401 (2)(k).
Relying upon these factors, the Court endorsed a most generous reading of the entirety of § 3602c, not just the subsection at issue: “Education Law § 3602-c . . . as part of the Education Law article pertaining to apportionment of moneys . . . was plainly designed to increase benefits afforded to [disabled] children in public schools – not to limit them – by offering these students access to all of the special programs provided for public school students and by integrating them generally with public school students.” Id. at 184-185. On this finding, the Court rejected the narrow interpretation of the procedural rule proffered by the district, holding instead that § 3602-c should be applied so as to ensure students receive services more broadly (e.g., allowing services at locations other than at public schools) notwithstanding a limiting use of the word “shall” (in “shall receive such services in . . . the public school”).
Using the Court of Appeal’s analysis in Wieder, any interpretation of § 3602-c(2) must be resolved in favor of “increasing benefits afforded to [NPS] children . . . not to limit them – by offering these students access to all of the special programs provided for public school students[.]” Id. The effect of the June 1st clause therefore must give way, but only to the extent necessary to ensure that NPS students the district has reason to know of (and especially those for whom the district had made recommendations) will receive those services similarly to public school students who are entitled to a FAPE.[24] This interpretation is also consistent with the definition of “children with disabilities” in the Education Law, i.e., those “who, because of mental, physical or emotional reasons can only receive appropriate education opportunities from a program of special education[,]” Educ. Law § 4401(1) (as incorporated into § 3602-c[1][d]) (emphasis added) as well as with the DOE’s own guidance memorandum, which states that “parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program.” See 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 3602c, supra, at Attachment 1, p. 11 (emphasis added).
Adopting the District’s narrow reading of just one clause of the statute ignores the interrelationship between the two clauses, and frustrates the Legislature’s intent to secure services for disabled NPS students by imposing a hurdle on their parents and guardians that carries the potentially dire consequence of denying services to children who, according to the Legislature, can “only receive appropriate education opportunities from a program of special education.” Educ. Law § 4401(1) (as incorporated into § 3602-c[1][d]) (emphasis added). I find that the June 1st notice requirement does not apply to students the District already had learned about and/or agreed to provide services for previously, or where the parents or guardians requested services in a previous year and the Department was under a continuing obligation to review the student and their IESP annually, or at the very least, for students where the District recommended services that it thereafter did not implement. This interpretation both resolves the ambiguity inherent between the notice clause and the equitable basis clause, and comports with the 2004 IDEA amendments that required public school districts to “provide students with disabilities enrolled in nonpublic elementary and secondary schools by their parents with special education services.” See 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, supra, at Attachment 1, pp. 1-2.
Applying the above to the case before me, I find that Parent’s claim should not be denied. Even if the District had proven that Parent failed to submit a written request for services by the June 1st preceding the school year in question, as described in further detail below, there is no dispute that the District failed to implement the services it recommended in the IESP, either directly by the District or through a contract the District entered into with a provider.
Waiver The third reason the Department’s notice argument must fail is because the IESP it developed, per its obligations, had the effect of implicitly waiving any notification by June 1, 2022 in this case. The SRO has considered the effect of the doctrine of implied waiver on the June 1st requirement in § 3602-c(2), as that doctrine was relied upon in the Second Circuit decision of N.L.R.B. v. New York Tele. Co., 930 F.2d 1009 (2d Cir. 1991), which “held that a waiver will not be implied unless ‘it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them.’” Application of the Board of the Lewiston-Porter Centr. Sch. Dist., Appeal No. 18-088 (August 31, 2018), at pg. 8. The SRO found that, even when the parties “do not dispute that the parents failed to request special education services by June 1[,]” it was still the case that “the district prepared an IESP for the student and began providing [the] services . . . to the student at the nonpublic school. Thus, by making the conscious choice to proceed after the June 1 deadline by providing services . . . ‘for whatever reason,’ the district’s actions constituted an implied waiver.” Id.
The above describes two scenarios where waiver is implied; first, in preparing an IESP after June 1st, and second, in implementing services described in the IESP after June 1st. I read this to mean that the implied waiver includes the entirety of the period for which those services are to be provided. Thus, if an IESP is developed less than one year before the June 1st in question, and those services are to be implemented, for one year, the DOE has made “the conscious choice to proceed after the June 1 deadline . . . ‘for whatever reason’” and the notice requirement has been waived. Id.
Here, the CSE convened on March 21, 2022, to determine Student’s eligibility for services through the CSE and to develop an IESP for the 10-month 2022-2023 school year (Ex. D-1, 8). The IESP indicates that the “Projected Date IESP Is to Be Implemented” was “September 8, 2022” and the “Projected Date of Annual Review” was “March 21, 2023” (Ex. D-1). Given that the DPC requests services for the 2022-2023 school year, I find that the IESP demonstrates the Department’s obligation and intention to implement services beyond June 1, 2022. In doing so, the Department waived any right to notice on or before June 1, 2022. Therefore, even if the Department had proven that there was no parental notice by June 1, 2022, and even if the June 1st provision in § 3602-c was applicable to the circumstances of this case, I would still deny the Department’s defense because of its implied waiver.
Dismissal on Grounds that Parents Cannot Seek A Due Process Hearing for Implementation of Equitable Services In their opening statement, District Representative #2 asserted that N.Y. Educ. Law § 4404 does not allow parents to seek a DPH for the implementation of equitable services (Tr. #3 28). I find that claim baseless. Parents who disagree with the CSE’s recommendations on their children’s IESPs are permitted to seek review pursuant to the provisions of N.Y. Educ. Law § 4404. While § 3602-c does not explicitly address implementation failures of the type at issue in this case, the New York State Education Department has opined that “[a] parent of a student who is a NYS resident who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location.” See 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 (Sept. 2007) (emphasis added);[25] see also Gabel ex rel. L.G. v. Bd. of Educ., 368 F. Supp. 2d 313, 332-33 (S.D.N.Y. 2005) (holding that an IHO has jurisdiction to hear claims regarding a district’s failure to provide related services to a parentally placed student attending a nonpublic school). Parents, therefore, have a right to initiate due process proceedings under N.Y. Educ. Law § 4404 for implementation failures when their children are parentally placed pursuant to N.Y. Educ. Law § 3602-c. To conclude otherwise would lead to absurd results, providing a parent the procedures by which to challenge what they believe to be improper recommendations, but leaving the parent powerless to address a district’s failure to provide the services to which everyone agrees the student is entitled.
I now turn to the merits of this matter.
LEGAL STANDARDS AND FRAMEWORK
FAPE
The IDEA provides that children with disabilities are entitled to a FAPE. See 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”). See 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. See 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, 999 (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. See 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 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. See 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).
Burden of Proof
Under the IDEA and the NYS Education Law, school districts have the burden of proof that a FAPE has been provided to the student, except that where tuition reimbursement is sought, the parent has the burden of proof with respect to the appropriateness of the parent’s chosen educational placement. See Education Law § 4404(1)(c); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012). As explained more fully below, SETSS cases have been treated as a hybrid between unilateral placement theory cases, see e.g., Application of a Student with a Disability, Appeal No. 21-101, and pure compensatory education cases. See, e.g., Foster v. Bd. of Educ. Of the City of Chicago, 611 Fed. App’x 874, 878-79 (7th Cir. 2015) (compensatory education includes reimbursement for out-of-pocket educational expenses). Accordingly, I first must determine whether the District met its burden to demonstrate that its offered program was reasonably calculated and implemented to provide this Student with educational benefits.
The CSE’s Recommendation of SETSS Instead of SEIT Services Is Appropriate
At the outset, I find Parent’s Attorneys’ arguments regarding SEIT services versus SETSS unavailing in this matter, and further find that SETSS is appropriate. In their DPC, Parent’s Attorney #1 asserts that “[Student] has been making progress utilizing the SEIT program and requires either a continuation of the broader SEIT program or an appropriate placement in a hybrid special education/general education program” and that “SETSS is a more limited service that does not address the broader organizational, executive functioning, social skills” that Student requires to meet their goals (Ex. A-2-3). First, SEIT services are generally reserved for preschool students with disabilities (see Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]), and they are not on the continuum of services for school-age students (Ex. 6-2; Tr. #3 34). They also do not support the academic goals provided in the IESP (Ex. 6-2). Second, I find that Provider Agency is not solely administering SEIT services, but rather is administering it with SETSS as part of a hybrid of services.
DOE School Psychologist and Program Supervisor largely agree on the differences between the two services. They each explained that SETSS focuses more on academic concerns than SEIT services (Tr. #3 34, 35, 50). Per DOE School Psychologist, SETSS can be administered as a pushin or pull-out service and allows the teacher providing the service to work with students in “groups of up to eight students to facilitate the instruction that’s being provided by the teacher in the classroom” (Tr. #3 50, 51). SETSS could be administered individually at the discretion of the provider, but it is always recommended as a group (Tr. #3 51). By contrast, SEIT services are “much more of a medical model and not an educational model,” and looks more at the “global delays the child may have at the time” based on preschool assessments. The SEIT teacher works 1:1 with the student on the goals outlined in the preschool IEP (Tr. #3 35, 50). Similarly, Program Supervisor explained that SEIT services focus on social emotional development, academics and pre-readiness skills (Tr. #3 60-65), and that preschool students tend to learn more through play (Tr. #3 60). By contrast, school-age children learn more through direct instruction (Tr. #3 60). Therefore, SETSS focuses on the academics and how the social emotional component affects the academics (Tr. #3 65).
Notably, here, neither Parent nor Financial Officer testified to the exact services Student is receiving, referring generally to “Special Education services” (Ex. E-2, 3; Ex. G-1). Further, on direct examination, Program Supervisor testified that Provider Agency is administering SETSS (Ex. F-2, 4). It was not until live questioning that anyone acknowledged that Student is receiving a hybrid of SETSS and SEIT services (Tr. #3 65-66). Provider Agency determined that Student requires a hybrid of those services because although Student is in kindergarten, Student needs to learn the “foundational skills of learning” (Tr. #3 65), and is learning the academics through play (Tr. #3 65-66). Program Supervisor did not specify how much of each service is being provided. Nonetheless, I find that Student is in kindergarten and, statutorily should be receiving SETSS services. I also find that SETSS services are appropriate for Student to achieve academic growth and to meet the goals developed for Student. Accordingly, I find that the District appropriately recommended SETSS for Student instead of SEIT services.
The CSE’s Recommendation of Three Hours of SETSS is Inappropriate
Regarding the number of hours Student is to receive, I find that the CSE’s recommendation of three hours of group SETSS was not reasonably calculated to enable Student to receive educational benefit. As part of the July 2020 IEP recommendations, the CPSE recommended five hours of SEIT services to be provided in a group of two (Ex. B-13). Thereafter, the CSE determined that Student would be able to access the kindergarten curriculum with three sessions of SETSS per week (Ex. 6-2; Tr. #3 35, 39, 51, 52-53; Ex. D-6).
At the outset, I find that the IESP does not indicate what information or evaluations the CSE relied upon to develop the IESP (see generally Ex. D). The IESP consists of approximately two pages of “substantive information,” much of which is repeated from the prior IEP (see generally Ex. D-1-2). For example, the Academic Achievement Section regarding prior testing appears to have been cut and pasted from part of the same section of the July 2020 IEP (compare Ex. D-1 with B3-4). The only added information is from Parent, indicating Student’s interests and that Student made progress but is still working on preacademic skills (Ex. D-1). The Social Development section also appears to have been cut and pasted from the Student’s Strengths subsection of the Social Development section of the July 2020 IEP (compare Ex. D-2 with Ex. B-5), as was the Physical Development section of the March 2022 IESP (compare Ex. D-2 with Ex. B-6). The IESP also fails to include any teacher or provider reports.
By contrast, DOE School Psychologist’s testimony regarding Student’s then-present level of academic performance and needs was based on information supplied by Student’s SEIT provider through Progress Reports Provider Agency supplied (Ex. 6-2; Tr. #3 48-49). Each of the two paragraphs in their affidavit listing Student’s performance and needs is prefaced with what Student’s SEIT Provider relayed, and appears to be taken directly from Provider Agency’s SEIT Progress Report (Ex. 3).[26] Specifically, DOE School Psychologist testified that Student could: sort items and divide them into two; count with 1:1 correspondence up to three items; identify small numbers; understand the basic numeric value of one; and identify amounts of one and two (Ex. 6-2; Ex. 3). DOE School Psychologist also testified that Student’s SEIT provider identified areas of concern (Ex. 6-2). Specifically, Student could not: place [three] pictures in a sequence; understand the schedule of the day; identify photographs or label familiar objects; discriminate between letters and non-letters; identify or name letters; identify letters already learned; identify quantities; or recognize differing sizes. Student also only had a limited understanding of concepts of amounts (Ex. 6-2; Ex. 3). This information is not included in the IESP. Nor is any information included about Student’s communication deficits, social interaction challenges or auditory listening concerns despite being documented in the same report (Ex. 3-2, 3).
Apart from what was contained in their affidavit, DOE School Psychologist could not recall or discuss specifics about Student, including Student’s pre-reading skills, quantitative skills, understanding of spatial concepts, attentional challenges, motor skills or coordination deficits (Tr. #3 40-45). As to why the CSE made the recommendations it did, DOE School Psychologist only stated that they had the information provided by the SEIT provider and Parent (Tr. #3 48-49), and that “based on [Student’s] functioning reported in the SEIT report by [Student’s] provider” they determined that Student could make meaningful educational progress with SETSS three times per week and related services of SLT and OT (Ex. 6-2; Tr. #3 35, 39). DOE School Psychologist added that the CSE felt that this recommendation maximized Student’s time spent in the classroom receiving direct instruction, thereby ensuring that Student was educated in the least restrictive environment (Ex. 6-2; Tr. #3 35, 39, 51).
I find that these cursory statements do not adequately explain why the District recommended three hours of SETSS and why it reduced Student’s special education services by 40%, particularly in light of the number of and severity of Student’s cognitive deficits and continued needs. See generally Endrew F., 137 S. Ct. at 1002 (stating, “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances”). Accordingly, I find the recommendation of three hours of SETSS inappropriate.
The CSE’s Decision to Not Recommend Group SLT
At the DPH, and for the first time, Parent’s Attorney #2 asserted in their opening statement that the CSE’s recommendations for SLT were also insufficient to meet Student’s needs (Tr. #3 30). Specifically, Parent’s Attorney #2 stated that the prior recommendation of SLT one time per week for 30 minutes in a group of two had been “eliminated out completely” (Tr. #3 30). I find that Parent has not properly raised this issue, and therefore, I cannot review their claim.
As part of the July 2020 IEP recommendations, the CPSE recommended SLT to be provided individually two times per week and one time per week in a group of two with each session lasting
30 minutes and to be administered in REDACTED (Ex. B-1, 13; Ex. E-1; Ex. A-2). The CSE recommended as part of the March 2022 IESP that SLT is to be provided individually two times per week for 30 minutes to be administered in REDACTED (Ex. D-6; Ex. E-2; Ex. A-2), reflecting the elimination of SLT as a group service one time per week (compare Ex. B-1, 13 with Ex. D-6).
Pursuant to 8 NYCRR § 200.5(j)(1)(ii), “[t]he party requesting the impartial due process hearing shall not be allowed to raise issues at the impartial due process hearing that were not raised in the notice filed under subdivision (i) of this section, unless the other party agrees otherwise.” See also Polanco v. Porter, 2023 U.S. Dist. LEXIS 32444 (S.D.N.Y. February 23, 2023) (finding claim waived because “[t]he scope of the inquiry of the IHO . . . is limited to matters either raised in the [p]laintiff’s impartial hearing request or agreed to by [the] [d]efendant”) quoting B.P. v. N.Y. City Dep’t of Educ., 841 F.Supp.2d 605, 611(E.D.N.Y. 2012). Here, in their DPC, Parent’s Attorney #1 specifically alleges that the CSE “failed to recommend an appropriate placement for [Student]” because of the SETSS recommendation (Ex. A-2), and discusses the difference between SEIT services and SETSS (Ex. A-3). The DPC also explains that Parent would need to “implement the SEIT program independently and seek reimbursement from the DOE” (Ex. A-3). Regarding compensatory services, Parent’s Attorney #1 addresses the right to seek compensatory SETSS and related services, but does not raise any issues with the related services other than implementation (Ex. A-3). Moreover, although Parent’s Attorney #1 listed the recommended services contained in the July 2020 IEP in the “Pendency Request” section of the DPC and the recommended services contained in the March 2022 IESP in the “3/21/2022 IEP Meeting” section of the DPC (Ex. A-2),
I find that the mere listing of recommendations did not put the District on notice that Parent was specifically challenging the SLT recommendation. Lastly, in their request for relief, Parent’s Attorney #1 seeks a finding that the March 2022 IESP constitutes a denial of a FAPE and generally asks that “absent an up-to-date program,” the recommendations made pursuant to the July 2020 IEP continue for the 2022-2023 school year (Ex. A-3-4). Accordingly, I find that Parent did not properly raise the issue that the CSE failed to recommend group SLT services and that the District was not “on notice” that Parent was challenging the SLT recommendation specifically. Further supporting that the District was unaware that Parent’s Attorney #2 would raise this issue is the lack of testimony by DOE School Psychologist regarding SLT. DOE School Psychologist testified on direct mainly by affidavit. That affidavit focuses on the allegations Parent’s Attorney #1 made in their complaint about SETSS and SEIT services. Additionally, I find that the District had not “agreed otherwise” to allow Parent to raise this claim, such as by waiving this issue or otherwise “opening the door” to any challenges regarding SLT. For example, they did not question the DOE School Psychologist about the SLT recommendations. Although District Representative #2 generally stated in their closing statement that the CSE made appropriate recommendations for SLT and that Student is not entitled to compensatory SLT (Tr. #3 75-76), I find that this was in response to the assertion made for the first time by Parent’s Attorney #2 at the hearing.
As I have found that Parent’s Attorneys have not properly raised a claim regarding group SLT, I decline to order it.
The District’s Failure to Implement Services Constitutes a Denial of a FAPE on an Equitable Basis
In addition to finding that the March 2022 IESP program did not provide Student a FAPE on an equitable basis for the 2022-2023 school year, I find that the District’s failure to implement any services deprived Student of a FAPE on an equitable basis for the 2022-2023 school year. It is undisputed that the DOE failed to provide any of the services pursuant to either the July 2020 IEP or the March 2022 IESP. The District, which bears the burden of proof, failed to put forth any evidence or witnesses regarding implementation. Accordingly, although the District did not concede that it failed to provide Student a FAPE for the 2022-2023 school year, I find that the District failed to meet its burden.
As the District provided no special education or related services at any time after the March 2022 IESP was drafted, Parent sought the services recommended in the earlier IEP. Parent explained that Student struggles in many academic and social emotional areas, requires a lot of extra assistance, and without that extra assistance, Student would be unable to remain in a “mainstream placement” (Ex. E-1). Student is making progress with SETSS and OT and requires those supports to continue making progress (Ex. E-1; Ex. F-4). 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.
The DOE had the obligation to provide services to Student in conformity with the IESP. See Educ. Law§ 3602-c(2)(a), (b)(l). By not doing 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. More than that, it has been held that the Department may not effectively compel a parent to resort to self-help in obtaining a SETSS provider. See e.g., Application of a Student with a Disability, Appeal No. 21-101. Such a “de facto delegation from the district to the parent of the obligation to find a SETSS provider . . . at an acceptable rate is manifestly unreasonable” (id.,) and a violation of State law. See Application of a Student with a Disability, Appeal No. 20-115 (“core instruction provided by a school district must be performed either by teachers who are employees of the district or pursuant to a contract for special education services that a district is specifically authorized by law to enter into”) (internal citation omitted, emphasis added); see also Application of a Student with a Disability, Appeal No. 20-087; and Application of a Student with a Disability, Appeal No. 20-140.
Appropriateness of Parentally Selected Services
Before proceeding to the remedies, I must address the District’s claims that Parent has not met their burden to prove the appropriateness of the services, including by failing to present evidence to demonstrate the actual instruction Student received during SEIT instruction, how the special education services addressed Student’s unique needs, or the methodologies used (Tr. #3 29). Initially, as I have determined that the District failed to implement the services it recommended in the March 2022 IESP, I find that Parent was left with no option but to secure all services for Student. I further find that the services Parent selected are appropriate. Among the considerations in determining whether a private placement selected by a parent is appropriate are whether the placement is likely to produce progress, not regression. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir 2017), quoting Walczak, 142 F.3d at 130. Moreover, 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 specifically 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. v. Bd. of Educ., 459 F.3d 356, 364-365 (2d. Cir 2006). A similar analysis is beneficial in a case like this, where a parent selects services for their child after the District fails to implement the current IESP.
Parent submitted a Progress Report dated January 1, 2023, which documents Student’s thenpresent level of functioning and delineates Student’s relative strengths and weaknesses (Ex. I). I find that the detailed report demonstrates that Direct Providers have identified Student’s specific needs and that they intend to use a variety of modes of intervention to help Student (Ex. I). For example, Student demonstrates various difficulties, including telling an ending to a story, finding more than one solution to a problem, answering questions and conducting higher level thinking tasks (Ex. I-2, 3). To address these, Direct Providers use a variety of visual and kinesthetic modalities and model advanced thinking techniques (Ex. I-2). Direct Providers use praise, encouragement and positive reinforcement to address Student’s attentional challenges, which affect Student’s ability to pay close attention to details and cause Student to make careless mistakes (Ex. I-2, 3). Student continues to exhibit weakness in reading readiness skills, including identifying letters and sounds of the alphabet, syllable segmentation and syllable deletion (Ex. I-2, 3). To address this, Direct Providers are orally modeling proper thinking (Ex. I-2). Student cannot read numerals 1 through 19, cannot understand basic math skills, cannot match groups of equal numbers of objects and cannot print numbers 1 through 10 without copying a model (Ex. I-2, 3). Student also continues to exhibit social skills deficits (Ex. I-2-3). Direct Providers learned that Student benefits from adaptation and differentiated instruction, curriculum reinforcement, individualized attention and academic modifications (Ex. I-3).
Additionally, Provider Agency determined that Student requires special education services to be taught mainly as a pull-out (Tr. #3 60-61). Direct Providers teach Student discreet skills, but work in the classroom as needed and collaborate with the teacher (Tr. #3 61). For example, Student is not progressing with the class in learning the alphabet, so Direct Providers take Student out of the classroom, use a “heavy multisensory approach” to teach the concepts, and then bring Student back to the classroom to generalize the information (Tr. #3 61-62). Direct Providers are focusing on letter recognition, phonemic awareness, alphabet, number sense, number recognition, comprehension, and following directions and classroom routines (Tr. #3 61-62).
I also find that Student is making progress with the special education services Provider Agency is administering. For example, Student can now place three pictures in a sequence, match like items, select which item is different from a group, and sort by shape and size. Student also understands size (Ex. I-1). Additionally, Student can attend and complete a simple task, remain on task for short intervals, follow directions and cut out a triangle shape (Ex. I-1).
Parent also submitted an OT Progress Report dated January 1, 2023 which documents Student’s then-present level of functioning and delineates Student’s relative strengths and weaknesses (Ex. I-4-5). I find that the detailed report demonstrates that Occupational Therapist has identified Student’s specific OT needs including weak fine motor skills and an inability to maintain an adequate sitting posture (Ex. I-2, 4, 5). Student continues to struggle with motor planning skills, visual motor/perception skills and activities of daily living skills, including toileting skills (Ex. I-5). Therapist intends to use various modes of intervention to help Student, including grasping skills, copying, bilateral coordination/integration skills, motor planning, verbal prompts, visual demonstration, sensory preparatory techniques and repetition to reinforce skill development (Ex. I-5). I find that with OT assistance, Student can now form triangle shapes and diagonal lines with 80% accuracy, complete a 9-piece jigsaw puzzle and complete a 4-6 piece block design independently (Ex. I-4).
Accordingly, I find baseless the District’s assertion that Parent did not prove the appropriateness of the services being administered by Provider Agency.
REMEDIES
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 doing so. Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993). 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 Bd. of Educ., 790 F.3d at 454). Moreover, the State Review Office (SRO) has held that when, like here, the parent has not already paid the SETSS provider, and seeks direct funding rather than reimbursement, the “matter is in a subset of more complicated cases in which the financial injury to the parent and the appropriate remedy are less clear.” Application of a Student with a Disability, Appeal No. 20-115 citing E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014) (holding that equitable considerations allow for direct payment for tuition where the parents were legally obligated to make payments but had not done so due to a lack of financial resources). Because Parent had to find a provider on their own and because “caselaw supports reimbursement and direct remedies in a unilateral placement case,” the SRO has determined that the question of whether a SETSS provider should be paid directly is somewhat similar to the Burlington/Carter framework, which “forecloses any complete disavowal of the parent’s burden of production and persuasion related to the private, unilateral services obtained by the parent.” Application of a Student with a Disability, Appeal No. 20-115 (finding, inter alia, the analysis "unworkable to the extent that the SETSS services can be construed as a state-approved option”).
In determining whether a provider agency’s rates are reasonable and appropriate under the circumstances, various factors have been found relevant, including: the provider’s explanation of the rate, including its costs and the qualifications of its instructors (Application of a Student with a Disability, Appeal No. 20-140 [while “[g]enerally, teachers at a unilateral placement need not be State-certified . . . there must be objective evidence of special education instruction or supports that are specially designed by . . . providers . . . who have reasonable qualifications that are specifically related to the student’s deficits”]); the value that specialized certification, such as a bilingual extension, adds to instruction (Application of a Student with a Disability, Appeal No. 21-
183 [approving compensatory SETSS by a bilingual reading specialist at a rate not to exceed $200 per hour]); and the parent’s efforts to locate a DOE-approved SETSS provider from a list provided by the District to the parent (Application of a Student with a Disability, Appeal No. 21-096). Additionally, one must look to whether the parent directly paid the provider or is contractually obligated to pay the provider in the event the District is not ordered to fund SETSS at the requested rate. See e.g. Application of a Student with a Disability, Appeal No. 21-068 (holding that “it is not appropriate equitable relief . . . to require the district to either reimburse the parent for the costs of SETSS or to directly fund SETSS” where “there is inadequate proof that the parent has expended any funds to pay for SETSS . . . or is legally obligated to do so”). Ultimately, in light of these factors, I must determine whether the requested rate is unreasonable. See e.g., Application of a Student with a Disability, Appeal No. 21-138 (determining that “there is no basis for a finding that the rate of $175 was unreasonable”).
Finally, I will consider when Parent notified the District of the enhanced rate claim as this establishes the first date upon which the District would have had an opportunity to modify its offered rate for SETSS in light of Parent’s claims. See id. (finding further that despite the per se reasonableness of the rate, a reduction in rate that had been imposed by the IHO was justified where the parent did not provide a ten-day notice (TDN), per 20 U.S.C. § 1412[a][10][C][iii] and 34 C.F.R. § 300.148[d][1]).
Equitable Considerations, Including Rate Requested and TDN Regarding rates sought, in the DPC, Parent did not request that the District be ordered to fund SETSS or related services at any specific rate (Ex. A). At the DPH, Parent’s Attorney #2 clarified that Parent was seeking “a reasonable market rate” for SLT, further stating that “Parent doesn’t really concern themselves with rate,” but rather is concerned about the services themselves (Tr. #3 78). Further, Parent testified that they sought funding for all services at a “reasonable market rate” (Ex. E-3). For the reasons described below, I am ordering that the provider be paid at a “reasonable market rate” for any SETSS or OT that the District failed to provide for the 2022-2023 school year. The reasonable market rate shall be consistent with rates that have been paid by the Implementation Unit for comparable SETSS and OT within six months of the date of this Order, and is not to exceed $195 per hour. [27] I base my finding that “a reasonable market rate” up to $195 is warranted on the following facts. First, the District has not challenged the requested rates nor have they put forth any evidence to prove that Provider Agency’s rates are unreasonable or that those rates are not comparable to other rates in the market for SETSS or OT. District Representative also declined to cross-examine Financial Director (Tr. #3 55), and did not question Program Director about their rate (Tr. #3 59-64, 72). I find credible Financial Officer’s testimony that a portion of these rates funds: 1:1 supervision; educational resources and support; professional development and materials; employment taxes; administrative costs; and overhead costs (Ex. G-1).
Second, although the CSE recommended that Student receive group SETSS (Ex. D-6), I do not find that 1:1 services are unreasonable in this matter. At the outset, I find that the District impermissibly shifted its burden to Parent to implement the services it recommended in the March 2022 IESP. Had the District implemented the IESP, it could have ensured that Student received SETSS in a group setting. Moreover, DOE School Psychologist did not testify as to why the SETSS could not be administered individually instead of in a group. In fact, they testified that SETSS is always recommended as a group, but could be administered individually at the discretion of the provider (Tr. #3 51). Finally, 1:1 services are not unreasonable given Student’s needs as documented in the 2021 Annual Reports available to the CSE (Ex. 3).
Third, I find that, for the most part, all providers are properly qualified to administer services to Student. Both Direct Provider #1 and #2 are each certified by NYS to teach students with disabilities from birth through Grade 2 and to teach early childhood education, and each holds a Bilingual Education Extension (Ex. J-2, 4; Tr. 63-64). Each Direct Provider is trained to teach literacy and comprehension to school-aged students, and Direct Provider #2 holds a certificate in teaching literacy to students from birth through Grade 6 (Ex. F-3; Ex. J-2). Direct Provider #2 also serves as the Educational Supervisor overseeing the providers’ work and assists with “identifying interventions and goals to address a student’s weaknesses and promote independence” in their areas of difficulty (Ex. F-3). I do note that Direct Provider #2’s registration with New York State is expired (Ex. J-1) and Direct Provider #1 is not registered with New York State. Overall, though, they possess appropriate qualifications. Moreover, providers selected by a parent are not required to be credentialed in the same manner as District employees, and lack of registration alone should not serve as a bar to funding in this case. I find that Student’s Occupational Therapist is properly licensed (Ex. F-2; Ex. I-3).
Fourth, I find that Parent is contractually obligated to pay Provider Agency in the event the District is not ordered to fund SETSS at the requested rate (Ex. E-2; Ex. H). [28]
Finally, although Parent did not timely serve a TDN on the District, I am not diminishing the requested amount as that notice was served only 1 day late and is proper in all other respects. Specifically, I take official notice that NYC Public School students began on September 8, 2022. [29] Thus, Parent was to have provided the District notice on August 24, 2022, ten business days prior to September 8, 2022. Parent filed that notice on August 25, 2022 (Ex. C; Ex. E-2). Reviewing the substance of the TDN, Parent was “very concerned that the IEP Team removed the SEIT Program and replaced it with so few periods of SETSS” (Ex. C-2). Parent asserted that it appeared that the CSE “had already made up its mind before the meeting to remove the SEIT program which was being serviced on a two to one basis” (Ex. C-2). Parent further explained that they “rejecte[ed] the most recent reduced recommendations,” and concluded that they would place Student in Private School and seek reimbursement or direct funding for the “prior recommended services” (Ex. C-2). The District did not respond (Ex. E-2). I find that the notice conforms to the ten day notice requirement.
Accordingly, I am ordering that the District pay Provider Agency “a reasonable market rate” for SETSS and OT. The “reasonable market rate” is to be consistent with rates that have been paid by the Implementation Unit for comparable individual SETSS and OT within six months of the date of this decision, and is not to exceed $195 per hour.
Direct Funding for SETSS and Related Services
Parent seeks direct funding to Provider Agency for the SETSS and OT being administered during the 2022-2023 school year (Ex. E-2, 3). As explained above, Parent is legally obligated to pay Provider Agency $195 per hour (Ex. H). The Agreement further provides that Parent “is fully and completely” responsible to pay for any hours of services not paid for by the DOE (Ex. H). I find that Parent is entitled to the requested form of payment.
Pursuant to Connors v. Mills, 34 F.Supp.2d 795, 799, 805-06 (N.D.N.Y. 1998) “once the Burlington prerequisites are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately.” See also Mr. & Mrs. A. v. New York City Dep’t. of Educ., 769 F. Supp. 2d at 427 (stating that where the Burlington factors are met, the court may award retroactive direct payment of private school tuition.) Here, I find that Parent testified credibly that paying for services up front would cause “extreme financial hardship” and that Parent could not afford to pay for the services “without outside financial assistance” (Ex. E-2). I further find that Parent is not required to produce anything further to satisfy the request for direct funding. See Ferreira v. New York City Dep’t of Educ., 2023 WL 2499261 (S.D.N.Y. March 14, 2023) (noting that Court found no caselaw holding that “proof of inability to pay is required to establish the propriety of direct retrospective payment,” and that “where it is undisputed that the DOE is responsible for payment, and the DOE does not contest the reasonableness of the cost of tuition, it would be nonsensical to draw a distinction on equitable grounds between requiring the DOE to pay the school directly and forcing the parents to make an initial payment in the same amount that the DOE is then required to reimburse”).
As I have found that the Burlington/Carter test has been met, that there is no evidence that the rates sought are unreasonable, and that there is evidence that Parent is unable to pay for the SETSS and OT, I am granting the request for direct payment to Provider Agency for the 2022-2023 school year.
As the Agreement is already in the hearing record, it need not be re-submitted (Ex. H). Compensatory Services for SLT Parent seeks a bank of 60 hours of SLT based upon a 40-week school year to account for the services the District failed to provide (Tr. #3 78). I find that Parent is entitled to the bank of services, but based upon the 2 individual sessions per week for 30 minutes each and based upon a 36-week school year, not a 40-week year.
Compensatory education is an award of educational services “to be provided prospectively to compensate for a past deficient program.” Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 522 (D.C. 2005) (internal citations omitted.) See also P. v. Newington Bd. Of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (stating compensatory education is an available remedy to make up for denial of FAPE). Although the IDEA does not contain any specific reference to compensatory education, courts consistently have recognized it as an equitable remedy rooted in the courts’ statutory powers to determine appropriate relief. See Reid, 401 F.3d at 522. See also 20 USC § 1415(i)(2)(C)(iii) (“[i]n any action brought under this paragraph, the court basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate”); 34 C.F.R. § 300.516(c)(3) (granting relief the court determines to be appropriate).
As an equitable remedy, it is not to be awarded as a punishment for a school district’s failure to provide a FAPE. See Reid, 401 F.3d at 522. It is also not a contractual remedy. See Reid, 401 F.3d at 523. Rather, it involves “discretionary, prospective injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency’s failure over a period of time to provide a FAPE to a student.” Reid, 401 F.3d at 523 (internal citation and quotation omitted.) Compensatory education looks to undo damage done by prior violations. Reid, 401 F.3d at 523.
Once compensatory education is determined to be appropriate, a court must still determine how to remedy that past violation. Some courts employ a quantitative approach– a formulaic, one-for-one method where the award equals the length of time the Student was inappropriately placed or denied services. Awards can be measured using an hour-for-hour accounting, yearly accounting or other similar accounting. See e.g. M.C. v. Cent. Reg’l Sch. Dist., 81 F3d 389 (3d Cir. 1996). Other courts use a qualitative approach. That approach allows a court to craft an award after considering many different factors, such as the student’s needs and abilities, the school district’s conduct and the family’s conduct. See Reid, 401 F.3d at 524. See also Bd. Of Educ. Of Fayette Cty., Ky. v. L.M., 478 F.3d 307 (6th Cir. 2007), cert. denied 552 U.S. 1042 (2007).
Neither the Second Circuit nor New York courts have settled on one of these approaches. Accordingly, either may be used. Regardless of the approach, a court must craft an award that is “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 524.
Based upon the evidence before me, I find that a quantitative analysis is appropriate for determining the number of hours of compensatory education the District is to provide this Student.
As stated earlier, I have found that Student is entitled to SLT to be provided individually two times per week for 30 minutes to be administered in REDACTED. Provider Agency was unable to locate a Speech Language Pathologist for Student for the 2022-2023 school year (Tr. #3 67). Thus, Student has not received any SLT this year. However, I find that a 10-month school year comprises 36 weeks, a reflection of the 180 instructional days divided by five days per week.[30] Accordingly, I am ordering a bank of 36 hours of SLT. I am ordering that these hours be funded at a “reasonable market rate,” which is to be consistent with rates that have been paid by the Implementation Unit for comparable individual SLT within six months of the date of this decision, and is not to exceed $195 per hour.
Finally, I am ordering that any SLT services not utilized by Student within one year of this decision shall expire. I understand that Parent has requested that the bank remain available for two years (Ex. E-3). However, the bank only comprises 36 hours which is one week per year. Additionally, given the purpose of compensatory education, I want to ensure that Student receives these services sooner rather than later. I am ordering the District to assist Parent in finding an appropriate SLT provider should Parent request such assistance.
OTHER CONTENTIONS
Parent seeks payment of attorneys’ fees and expenses associated with representation in this matter (Ex. A-10). The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party. Entitlement, if any, to costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008; Application of a Child with a Disability, Appeal No. 06-109. I would be exceeding the scope of my authority by determining that Parent is the prevailing party entitled to attorney fees.
Other than the relief set out in my Order below, and my findings detailed in this section of “Other Contentions,” I find the Parties’ remaining contentions to be unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all of Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDERS
IT IS HEREBY ORDERED THAT the Department of Education (“DOE”) shall fund for the 10-month 2022-2023 school year, group Special Education Teacher Support Services (“SETSS”) five hours per week to be administered in REDACTED by a licensed special education teacher of Parent’s choosing at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services for group SETSS within 6 months of the date of this Order. This “reasonable market rate” shall not exceed $195 per hour; and it is further
ORDERED THAT the DOE shall pay the provider listed above within 15 days of receipt of invoices for services rendered and an accompanying sworn affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT the DOE shall fund for the 10-month 2022-2023 school year, individual Occupational Therapy (“OT”) two times per week for 30 minutes each to be administered in English by a licensed occupational therapist of Parent’s choosing at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services for individual OT within 6 months of the date of this Order. This “reasonable market rate” shall not exceed $195 per hour; and it is further
ORDERED THAT the DOE shall pay the provider listed above within 15 days of receipt of invoices for services rendered and an accompanying sworn affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT the DOE shall fund a bank of 36 hours of individual Speech Language Therapy (“SLT”) to be administered in REDACTED by a licensed speech pathologist of Parent’s choosing at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services for SLT within 6 months of the date of this Order for the 2022-2023 school year. This “reasonable market rate” shall not exceed $195 per hour; and it is further
ORDERED THAT the DOE shall pay the provider listed above within 15 days of receipt of invoices for services rendered and an accompanying sworn affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT if Parent requests assistance finding a provider to administer the above services at any time, the DOE must locate three providers who are ready, willing, and able to begin adminsitering the services to Student according to the terms of this order. If Parent presents a good faith basis for rejecting the three providers, the DOE must locate two additional providers from which Parent may choose. The DOE shall not be required to identify more than five providers in any given six-month period. Nothing stated here prevents Parent from locating and utilizing a provider of their own choosing; and it is further
ORDERED THAT to the extent such SLT services, as described above, are not utilized by Student by one year from the date of this Order, any remaining services shall expire.
June 23, 2023 (signed electronically)
Ginger James 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 A- REDACTION IDENTIFICATION PAGE
Redacted Information Term Used In FOFD
REDACTED Student
REDACTED Parent
REDACTED Parent’s Attorney #1
REDACTED Parent’s Attorney #2
REDACTED District Representative #1
REDACTED District Representative #2
REDACTED Service District
REDACTED Private School
REDACTED Program Supervisor of Special
Education Services at
Provider Agency
REDACTED Provider Agency
REDACTED Direct Provider #1
REDACTED Direct Provider #2/Educational
Supervisor
REDACTED Occupational Therapist
REDACTED Financial Officer
REDACTED DOE School Psychologist
REDACTED Special Education Teacher
REDACTED IHO #1
APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Due Process Complaint Committee on Special Education (“CPSE”) 09/08/2022 7 pages
B. Individualized Education Program (“IEP”) 07/28/2020 16 pages
C. Ten Day Notice (“TDN”) Individualized Education Services Program 08/25/2022 3 pages
D. (“IESP”) 03/21/2022 9 pages
E. Affidavit of Parent 01/22/2023 3 pages
F. Affidavit of REDACTED 01/19/2023 4 pages
G. Affidavit of REDACTED 01/24/2023 2 pages
H. Contract 06/23/2022 1 page
I. Progress Reports 01/01/2023 6 pages
J. Provider Credentials undated 5 pages
DOE EXHIBITS
1. Individualized Education Program (“IEP”) 03/21/2022 9 pages DOE
2. Occupational Therapy Progress Report Special Education Itinerant Teacher (“SEIT”) 12/22/2021 3 pages DOE
3. Progress Report 12/01/2021 4 pages DOE
4. Speech Language Therapy Progress Report 12/01/2021 2 pages DOE
5. REDACTED Student Annual Progress Report undated 12 pages DOE
6. Affidavit of REDACTED undated 2 pages DOE
IHO EXHIBITS
I. Email Regarding Pendency 02/20/2023 1 page
II. Order on Pendency 03/06/2023 6 pages
Footnotes
[1] No personal identifying information is contained within the body of this Findings of Fact and Decision (“FOFD”). For personal identifying information, please refer to the attached appendix. Further, this FOFD contains no references to the gender binary. The pronoun “they” is used as needed.
[2] Although the cover sheet for the IEP records the meeting date as July 28, 2020 (Ex. B-1), the IEP records it as July 27, 2020 (Ex. B-2). Further, although the “Recommended Special Education Programs and Services” section of the IEP does not indicate that any services are to be provided in REDACTED, the cover page indicates that Student is recommended for a bilingual program taught in REDACTED (Ex. B- 1).
[3] References to the transcript from the appearance on December 15, 2022 are denoted “Tr. #1.” References to the transcript from the Due Process Hearing scheduled for March 30, 2023 are denoted “Tr. #2.” References to the transcript from the Due Process Hearing are denoted “Tr. #3.”
[4] At the Due Process Hearing, and for the first time, Parent’s Attorney #2 asserted in their opening statement that the CSE’s recommendations for SLT were also insufficient to meet Student’s needs (Tr. #3 30). Specifically, Parent’s Attorney #2 stated that the prior recommendation of SLT one time per week for 30 minutes in a group of two had been “eliminated out completely” (Tr. #3 30). The CSE issued the same OT In light of the foregoing and as more fully discussed below, I am denying the District’s “Motion to Dismiss.” Regarding the merits of the case, I find that the DOE failed to offer Student a FAPE recommendation as the CPSE, and no claims have been raised regarding that service (compare Ex. D-6 with Ex. B-13).
[5] Parent’s Attorney #2 clarified that Parent seeks a bank of 60 hours of SLT based upon a 40-week school year to account for the services the District failed to provide (Tr. #3 78). Parent’s Attorney #2 further requests that those services be funded at a “reasonable market rate” (Tr. 78). Parent seeks funding at a “reasonable market rate” for SETSS and OT (Ex. E-3).
[6] Parent also invoked pendency (Ex. A-2). As explained below, on March 6, 2023, IHO #1 issued an Order on Pendency (IHO Ex. I; Tr. #2 10-11; Tr. #3 19-20).
[7] The Progress Reports list Student’s grade as Pre-1A (Ex. I-1, 4).
[8] There is no transcript for the February 16, 2023 appearance. I obtained information about that appearance from the Order on Pendency (IHO Ex. II). On February 20, 2023, by email, IHO #1 sought those positions, but the District did not respond (IHO Ex. I).
[9] Proffered Exhibit 1, the March 2022 IESP, was the same as Parent’s proffered Exhibit D (Tr. #2 23). I have cited to Parent’s Exhibit D in this decision (Tr. #3 23-24).
[10] Although the term “Turning 5” was not defined, I find that it refers to the review the CSE conducts whereby students in preschool receiving services pursuant to IEPs are evaluated for special education and related services prior to entering kindergarten.
[11] DOE School Psychologist could not recall whether DOE Special Education Teacher had any input into the services recommendations (Tr. #3 46).
[12] Although Parent testified that TDN was served on September 8, 2022, the email reflects that Parent’s Attorney served the TDN on August 25, 2022 (Ex. C; Ex. E-2).
[13] Program Supervisor testified that even if a student is mandated to receive group services, they still receive 1:1 services because a group can consist of one person (Tr. #3 66, 71-72). I have not credited this statement. I take official notice of the Merriam-Webster Dictionary which defines “group,” in part, as: “two or more figures forming a complete unit in a composition;” and “a number of individuals assembled together or having some unifying relationship.” See https://www.merriam-webster.com/dictionary/group (last visited June 19, 2023).
[14] Although Financial Officer testified Provider Agency charges $198 per hour for individual SEIT services/SETSS and $225 per hour for related services (Ex. G-1), I find that Parent is only obligated at $195 per hour for all services (Ex. H).
[15] There are two distinctions to note, however, between career education and gifted students on one hand, and students with disabilities on the other. For the former two groups, their parents or guardians notify the district of residence by June 1st, while the parents or guardians of students with disabilities notify the district of location. This reflects differences in funding reimbursement for students with disabilities. The second distinction, and more pertinent to the current analysis, is that parents or guardians do not notify by a June 1st preceding a school year in question if it is the first year that the student is identified as a student with a disability. See § 3602-c(2)(a).
[16] For public school students with disabilities whose needs exceed what public schools can provide, the district can enroll them, at public expense, at approved nonpublic schools. See 20 U.S.C. § 1412(a)(10)(B). For purposes of this decision, further § 3602-c references to “public schools” and the students who attend them shall include these nonpublic schools and students.
[17] See McKinney's Consolidated Laws of NY, Book 1, Statutes §§ 73 and 92(a).
[18] See 20 U.S.C. § 1412 (a)(10)(C)(iii) (“[t]he cost of reimbursement . . . may be reduced or denied . . . if . . . 10 business days . . . prior to the removal of the child from the public school, the parents did not give written notice”) (emphasis added).
[19] I note that this sentence applies to “education for students with disabilities,” see id., which is defined, in part, as “special education programs designed to serve persons who meet the definition of [‘]children with disabilities[’] set forth in subdivision one of section forty-four hundred one of this chapter” and § 4401 defines “child with a disability” in part as “a person under the age of twenty-one who is entitled to attend public schools . . . and who, because of mental, physical or emotional reasons can only receive appropriate education opportunities from a program of special education.”
[20] See https://p12.nysed.gov/specialed/publications/policy/documents/chapter-378-laws-2007-guidance-on-nonpublic-placements.pdf. (last visited June 19, 2023).
[21] Given the District’s continuing obligations to all students who require special education and related services, no student entitled to such services should be deprived of them. Unless the District knows that a student no longer requires services pursuant to an IESP, the District remains obligated to create an IEP as it would for any student of whom they are or should be aware requires special education and related services.
[22] See https://infohub.nyced.org/docs/default-source/default-document- library/specialeducationstandardoperatingproceduresmanualmarch.pdf?sfvrsn=4cdb05a0_2&msclkid=3ab 70cadd15f11ec93b699324277a741 (last visited June 19, 2023).
[23] I also note that the District’s practice of placing a date in the “Projected Date of Annual Review” line of an IESP can cause further confusion to a parent and implies that the District will schedule an annual review of the IESP, irrespective of the June 1st notice. See generally Educ. Law § 3602-c(2)(b)(1) (stating, “the committee on special education of the school district of location . . . shall develop an individualized education service program for the student based on the student's individual needs in the same manner and with the same contents as an individualized education program”) (emphasis added).
[24] I note that in limiting but not obviating any application of the June 1st provision, I am not going as far as setting aside the word “shall” in § 3602-c(2)(a), as the Court appears to have done with § 3602-c(9) in Wieder.
[25] See https://p12.nysed.gov/specialed/publications/policy/documents/chapter-378-laws-2007-guidance-on-nonpublic-placements.pdf. (last visited June 19, 2023).
[26] It is unclear whether the CSE relied on the Annual Progress Report submitted by Provider Agency (Ex. 5), as neither DOE Psychologist’s testimony nor the IESP address much of the information contained in it.
[27] As noted, Financial Officer testified that Provider Agency charges $198 per hour for individual SEIT services/SETSS and $225 per hour for related services (Ex. G-1). However, the contract Parent signed reflects that Provider Agency is only charging Parent $195 per hour for each service (Ex. H). Accordingly, I am not ordering that the District pay more than $195 per hour for any service.
[28] Parent presented no evidence that they attempted to locate SETSS providers willing to accept the DOE’s “standard rate” of payment, such as by calling independent providers listed on the District’s website or otherwise seeking assistance from the District (Ex. E). Although this is a factor to be considered, inasmuch as Parent seeks a “reasonable market rate,” and the District has not contested the rate, I find under the circumstances of this case, that the lack of such evidence has a negligible effect. Therefore, the absence of testimony in this regard does not affect my ultimate decision.
[29] See https://www.schools.nyc.gov/about-us/news//2022-2023-school-year-calendar (last visited June 6, 2023).
[30] See https://www.schools.nyc.gov/about-us/news//2022-2023-school-year-calendar (last visited June 6, 2023). See also generally Application of a Child with a Disability, Appeal No. 23-033, FN 10.