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CASE NUMBER: 583645 – NYC: 235366
CORRECTED FINDINGS OF FACT AND DECISION
Case Number: 235366
Student’s Name: REDACTED
District: REDACTED
Impartial Hearing Officer: Ginger James
Date of Filing: September 8, 2022
Hearing Requested by: Parent
Date of Hearing: December 27, 2022
Record Close Date: January 21, 2023
Date of Decision: May 1, 2023
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 27, 2022
For the Student:
REDACTED, Esq., Parent’s Attorney
REDACTED, Director of Provider Agency
For the Department of Education:
REDACTED, District Representative
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. Specifically, Parent alleges that, for the 2022-2023 school year, the District failed to: convene an Individualized Education Program (“IEP”) Team meeting prior to the start of the 2022-2023 school year; recommend a proper placement and services; and implement the services contained in an Individualized Education Services Program (“IESP”) dated May 6, 2021 (“the May 2021 IESP”) (Ex. A; Tr. 6). [2]
Regarding relief sought, at the outset, Parent invokes pendency (Ex. A-2; Tr. 6-7, 19). Regarding final relief, Parent seeks a compensatory education award consisting of a bank of Special Education Teacher Support Services (“SETSS”) to be provided in a group four periods per week and Speech-Language Therapy (“SLT”) to be provided individually two times per week for 30 minutes (Ex. A-2, 3; Ex. D-1; Tr. 6-7). Parent seeks an order requiring the District to fund the SETSS services by issuing payments to providers of Parent’s choosing at “a reasonable market rate” and to fund the SLT through the District’s Related Services Authorizations (“RSAs”) (Ex. A-3; Ex. D-2; Tr. 6-7, 19).[3] Parent also seeks attorney’s fees and expenses and any other relief that may be just and proper (Ex. A-3). Finally, Parent alleges that the program they chose is appropriate for Student and that equities weigh in their favor (Tr. 19).
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 (IHO Exhibit II). The District also opposes Parent’s request for pendency, arguing that Student is not entitled to due process or pendency under federal or New York State (“NYS”) law (IHO Exhibit III). In light of the foregoing and as more fully discussed below, I am ordering pendency and am denying the District’s Motion to Dismiss. Regarding the merits of the case, I find that the DOE failed to provide Student a FAPE on an equitable basis for the 2022-2023 school year, and that the relief Parent seeks is appropriate. However, as more fully described below, I am diminishing the bank of services the District is to fund, taking into account the failure to provide timely service of Ten Day Notice (“TDN”). Further, I decline to award attorney’s fees and expenses. Moreover, although not specifically requested, I find that Student is entitled to a Speech and Language and a Psychoeducational Evaluation to be conducted by the DOE should Parent want such evaluations.
PROCEDURAL HISTORY
On October 20, 2022, I was appointed as Impartial Hearing Officer (“IHO”) to preside over this matter. No Pre-Hearing Conference (“PHC”) was held. [4]
On December 13, 2022, the Parties were to have appeared for commencement of the Due Process Hearing (“DPH”). However, due to an unexpected emergency, the Parties were unable to appear, and I rescheduled the hearing for December 27, 2022 (Tr. 4).
On December 27, 2022, both Parties appeared virtually for the DPH. District Representative proffered no evidence or witnesses (Tr. 7). Parent’s Attorney submitted Exhibits A through G, which included affidavits by Parent (Ex. D) and Director of Provider Agency (Ex. E) (Tr. 7-9). District Representative had no objection to their introduction, and I admitted all into evidence (Tr. 9). District Representative presented an opening statement, during which they requested that I dismiss this matter and asserted that Student is not entitled to pendency (Tr. 10-13). Parent’s Attorney addressed the arguments raised, but requested that I direct the District to file a written motion to dismiss (Tr. 13-15). The Parties agreed that District Representative would submit their motion by December 30, 2022 and that Parent would submit a response by January 9, 2023, but that we would continue with the DPH (Tr. 15-18). Parent’s Attorney then presented their opening statement (Tr. 18-19). As neither District Representative nor I had questions for Parent, Parent testified through affidavit only (Ex. D; Tr. 9). District Representative did not seek to crossexamine Director of Provider Agency (Tr. 9, 26-27). However, since I had questions for Director, Director testified through affidavit and live testimony (Ex. E; Tr. 21-27). Each Party declined to present a closing statement (Tr. 27-28).
On December 30, 2022, by email, District Representative submitted their Motion to Dismiss and Memorandum on Pendency (IHO Exhibits I, II, III).
On January 9, 2023, by email, an individual from Parent’s Attorney’s firm submitted a “Pendency Brief” on Parent’s Attorney’s behalf which addressed the District’s Motion to Dismiss and Memorandum on Pendency (IHO Exhibits IV and V).
FINDINGS OF FACT
After a full review of the record generated at hearing, I make the following findings of fact and determinations. Unless otherwise noted, none of the facts are contested in this matter.
Student has been identified as a Student with Speech or Language Impairment, presenting with receptive language, articulation and expressive language deficits which affect all academic areas (Ex. B-1-6; Ec. D-1; Tr. 23). Student also struggles in social emotional areas, and requires a lot of extra assistance (Ex. D-1). Student is “equally fluent” in English and Hebrew, but primarily speaks Hebrew at home (Ex. B-2, 3). For two years, Student attended a preschool where REDACTED primarily was spoken, and prior to May 6, 2021, Student received special education and related services in REDACTED (Ex. B-2). Student is making progress with SETSS, and requires the support it provides to continue improving and to maintain a “mainstream placement” (Ex. D-1; Ex. E-3; Tr. 23, 25-26).
On May 6, 2021, the Committee on Special Education (“CSE”) reconvened to consider a Psychoeducational Evaluation Report generated after Student underwent testing conducted in Hebrew on April 11, 2021 (Ex. B-2). As a result of that report, the CSE developed an IESP recommending SETSS to be provided in a group four periods per week and SLT to be provided individually two times per week for 30 minutes (Ex. B-8; Ex. D-1). These services specifically were to be provided in English, a change from the previous IESP (Ex. B-4, 8).
The CSE did not convene in advance of the 2022-2023 school year, and the District has failed to provide or to fund any special education and related services to Student for the 2022-2023 school year (Ex. A; Ex. D-1).
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.
On Sunday, September 4, 2022, Parent, through Parent’s Attorney, sent the District a TDN dated September 6, 2022 (Ex. C; Ex. D-2).[5] Pursuant to the TDN, Parent “consent[ed] to all services recommended on [the May 6, 2021] IESP being implemented by the DOE” (Ex. C-2). Parent further relayed that they were unable to locate SETSS and related service providers to administer services at the District’s “standard rate,” and therefore, Parent would implement the IESP on their own and seek reimbursement or direct payment from the District (Ex. C-2). Parent asked the District to respond if they had any alternative options (Ex. C-2). The District failed to respond (Ex. D-2).
As the District had not implemented any services for Student, Parent attempted to locate a SETSS provider by calling independent providers found on a list on the District’s website (Ex. D-1). None of those providers were available to administer services to Student (Ex. D-1). Accordingly, Parent contacted Provider Agency (Ex. D-2). Provider Agency has been administering, and is able to continue providing, four hours of SETSS services to Student for the 2022-2023 school year (Ex. D-2; Ex. E-2). Student is receiving SETSS at Private School (Ex. E-2). Although Student was recommended to receive group SETSS, Provider Agency is administering SETSS in a 1:1 format because they believe Student’s disability necessitates direct instruction and a hands-on multi-sensory approach to learning (Tr. 22). Director believes that the rate for group service would be “much less” than the rate for individual service (Tr. 23-24).
Student’s SETSS are administered by a Direct Provider who is certified by NYS to teach students with disabilities (Ex. E-2; Ex. G), and is trained to teach literacy and comprehension to school-aged students (Ex. E-2). Although Director asserts that Direct Provider is “highly experienced” and has attended numerous trainings, Direct Provider’s certification is in the form of an Internship Certificate issued on February 9, 2021 (Ex. G; Tr. 22, 24-25). In addition to administering 1:1 service for Student, Provider prepares for sessions, creates goals, writes progress reports and meets with teachers and parents (Ex. E-2). Student’s progress is measured through quarterly assessments, meetings between Provider and staff, direct observations and daily session notes (Ex. E-3). Student is making progress with these services, which include instruction using the Wilson Method and Orton-Gillingham (Ex. E-3; Tr. 25-26).[6] With these supports, Student is building phonics and site word skills and is improving in reading skills (Tr. 25-26).
Provider Agency charges $185 per hour for individual SETSS (Ex. E-2; Tr. 22). Of the $185, Direct Provider is paid $85 to $100 per session (Tr. 22). The remainder of the rate funds: 1:1 supervision; educational resources; support; professional development; materials; employment taxes; insurance fees; administrative costs; and overhead costs (Ex. E-2; Tr. 22-23).
On June 1, 2022, Parent signed a contract acknowledging that Parent is “ultimately responsible for any unpaid balance on services [Provider Agency] provide[s] that are not covered by the NYC Department of Education” (Ex. F). The contract does not state the services that are to be provided or the rate for any service (Ex. F). Parent seeks direct funding because it would be an “extreme financial hardship” for Parent to pay for the services (Ex. D-2).
MOTION TO DISMISS
District’s Position
District Representative has moved to dismiss the DPC with prejudice because Parent failed to request educational services for the 2022-2023 school year on or before June 1, 2022 per N.Y. Educ. Law § 3602-c (IHO Ex. II; Tr. 10). Referring to the statute and to Application of a Student with a Disability, Appeal No. 22-088, District Representative contends that pursuant to statute, a parent of a child with a disability who enrolls the child in a private school and seeks educational services from the district where that school is located must file a written request for those services on or before June 1st of the school year for which the services are sought (IHO Ex. II-2, 3; Tr. 10). Further, pursuant to N.Y. Educ. Law § 3602-c, the District is required to provide equitable services “upon the written request of the parent . . . [made] on or before the first of June preceding the school year for which the request is made . . .” (internal quotations omitted) (IHO Ex. II-2-3). Per the District, “Parent cannot engage in the wholesale abandonment of [their] responsibility to timely request services for Student while simultaneously complaining that the DOE has failed in its obligation to provide those services” (IHO Ex. II-3).
Additionally, highlighting that Parent requested the services on September 6, 2022, District Representative asserts that Parent brought their claims “in bad faith” because Parent had contracted for services with Provider Agency more than three months prior to requesting services from the District (IHO Ex. II-3).
Parent’s Position Parent’s Attorney argues that the June 1st provision contained in Educ. Law § 3602-c(2)(a) is not a ground upon which “to deny Pendency or any other relief sought in this matter” (IHO Exhibit V-3) (emphasis added).[7] To support their position, Parent’s Attorney asserts that: 1) even if N.Y. Educ. Law § 3602-c is viewed as a timing defense, it has been waived by the District’s failure to raise it prior to filing its Memorandum of Law; 8 2) even if N.Y. Educ. Law § 3602-c is viewed as a timing defense, the District waived it by their conduct; 3) N.Y. Educ. Law § 3602-c must be considered in connection with the District’s Standard Operating Procedures Manual (“SOPM”) [9]; and 4) dismissal of this case would contradict the clear provisions set forth in 8 NYCRR § 200.5(1)(6) (IHO Ex. V-3-6; Tr. 13-15).
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 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.” 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 Although the District asserts that Parent was required to request equitable services in advance of June 1, 2022, the District fails 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.
8 Contrary to Parent’s Attorney’s assertion that the District raised the June 1st issue for the first time in their Memorandum, District Representative raised it for the first time in their Opening Statement (Tr. 10-13). As explained below, the timing of the argument does not alter my ultimate decision on this issue. The District’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 matter constituting a defense, i.e., new matter which, assuming the complaint to be true, constitutes a defense 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).
At the outset, I find that despite the fact that Parent filed this matter on September 8, 2022, that I was appointed on October 20, 2022 and that the DPH was initially to be conducted on December 13, 2022, the District waited to raise this issue until their opening statement at the December 27, 2022 DPH, thereby depriving Parent of advance notice of the District’s intent to seek dismissal of this matter. I also find that it is undisputed that on September 6, 2022, Parent sent the District a TDN explaining, inter alia, that they wanted the services recommended on the May 6, 2021 IESP to be implemented, and asked the District to respond if they had any alternative options (Ex. C-2; Ex. D-2). The District failed to respond (Ex. C-2; Ex. D-2), including to inform Parent that Student was not entitled to receive services because they had not been requested in a timely manner.
Regardless, by the time District Representative made their oral motion at the DPH, they already had indicated that they had no “questions or concerns about the issues and/or remedies being sought” and had declined the opportunity to proffer any exhibits (Tr. 6-7). They also stated that they would not be producing any witnesses, and they declined the opportunity to cross-examine either witness (Tr. 7, 9). While setting a briefing schedule for the Motion and Response, I specifically asked if the Parties wished to proceed, inquiring “if there was anything in the motion to dismiss that would affect what the witness would testify to today and all the evidence [that] is in already” (Tr. 17). District Representative stated, “I don’t believe so” (Tr. 17). Finally, when Parent’s Attorney consented to proceed to hearing because they believed the issue for the motion was “largely legal,” and that “any witness testimony would be factual,” District Representative agreed, stating, “I think the motion to dismiss is more a procedural argument” (Tr. 17).
Accordingly, at no point during the DPH did the District offer witnesses, affidavits, or exhibits to demonstrate 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. 10
I also reject the District’s argument that Parent is not entitled to services because they acted “in bad faith.” The District claims that because Parent had contracted for services with Provider Agency more than three months prior to requesting services from the District, on September 6, 2022, Parent’s case must be dismissed (IHO Ex. II-3). Parent’s decision to seek providers as a “back-up” in case the District did not implement the IESP does not equate to bad faith. See generally C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir 2014) (holding that parents’ “pursuit of a private placement was not a basis for denying their [request for] tuition reimbursement, even assuming . . . that the parents never intended to keep [the student] in public school.”); P.K. v. NY City Dep’t of Educ., 819 F. Supp 2d 90, 117 (E.D.N.Y. 2011) (finding that although the parent enrolled the student at the private school before rejecting the DOE’s placement, the actions were not so unreasonable as to warrant a denial of or reduction in reimbursement).
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
I find Parent’s Attorney’s argument that dismissal would contradict the clear provisions set forth in 8 10
NYCRR § 200.5(1)(6) inapposite as the District is not alleging facial sufficiency. 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.[11] 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,[12] 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 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.[13] 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,[14] 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).[15] 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).[16] 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. [17]
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.[18] 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.[19] Interestingly, the District did not address this in their Motion to Dismiss 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.[20] 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.
Having denied the District’s Motion to Dismiss for failure to meet its burden to prove Parent did not provide June 1st notice and rejecting their claim that Parent is not entitled to relief because they allegedly acted “in bad faith,” and separately determining that the June 1st notice provision does not apply to this Student, I 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 § 3602c(2).[21] 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 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). 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-out-pocket educational expenses). Accordingly, I first must determine whether the Department met its burden to demonstrate that its offered program was reasonably calculated and implemented to provide this Student with educational benefits. The District failed to provide Student a FAPE on an equitable basis for the 2022-2023 school year. Parent alleges and credibly testified that the DOE failed to implement four hours of SETSS per week for Student or the recommended SLT. The District, which bears the burden of proof, failed to put forth any evidence or witnesses or to even cross-examine Parents’ witnesses. 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 May 2021 IESP was drafted, Parent sought the services recommended in the May 2021 IESP. 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 maintain a “mainstream placement” (Ex. D-1). Student is making progress with SETSS, and requires those supports to continue making progress (Ex. E-3; Tr. 25-26).
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 the Student in conformity with the IESP. See Educ. Law§ 3602-c(2)(a), (b)(l). In failing to do so, the DOE failed to provide the Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district. 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.
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, 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 directly paid 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 the 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 the 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]).
Director testified that Provider Agency charges $185 per hours for SETSS (Ex. E-2; Tr. 22). Director further testified that of the $185, Direct Provider is paid $85 to $100 per session, with the remainder of the rate funding: 1:1 supervision; educational resources; support; professional development; materials; employment taxes; insurance fees; administrative costs; and overhead costs (Ex. E-2; Tr. 22-23). Parent attempted to locate providers using the District’s list of providers, but was unable to locate anyone available to administer services to Student (Ex. D-1).
Although Provider Agency provided a justification for their rate, I am not persuaded that an “enhanced rate” of $185 is warranted. First, despite Director’s assertion that Direct Provider is “highly experienced,” Direct Provider’s certification is in the form of an Internship Certificate issued on February 9, 2021 (Ex. G, Tr. 22, 24-25). Second, SETSS services pursuant to the May 2021 IESP are being provided in English. Third, despite the recommendation contained in the May 2021 IESP that Student receive group SETSS (Ex. B-8), and despite the fact that Parent has specifically requested that I order group SETSS (Ex. A-2, 3; Ex. D-1, 2; Tr. 6-7, 22), Student is receiving 1:1 instruction (Ex. E-2; Tr. 22, 23). Director testified that Student’s disability necessitates direct instruction and a hands-on multi-sensory approach to learning (Tr. 23), but also acknowledged that the rate for group service would be “much less” than the rate for individual service (Tr. 23-24). Fourth, although Parent signed a contract stating that Parent is “ultimately responsible for any unpaid balance on services [Provider Agency] provide[s] that are not covered by the NYC Department of Education,” the contract does not state the services that are to be provided or the rate for any service (Ex. F). Fifth, although Parent’s Counsel requested that SETSS be funded at the providers’ prevailing rate (Ex. A-3; Tr. 6-7), Parent specifically requested that the DOE reimburse Student’s SETSS services “at a reasonable market rate” (Ex. D-2). Accordingly, I am ordering that the District pay Provider “a reasonable market rate” for these services. The “reasonable market rate” is to be consistent with rates that have been paid by the Implementation Unit for comparable individual SETSS within six months of the date of this decision, and is not to exceed $185 per hour.
Regarding SLT, I am ordering that the District issue RSAs upon issuance of this Order.
Additionally, I am diminishing the bank of hours which must be funded to account for the lateness of the TDN. NYC Public School students began on September 8, 2022.[22] Accordingly, I find that Parent was to have provided the District notice on August 24, 2022, ten business days prior to September 8, 2022. As Parent’s TDN was served on September 6, 2022, Parent deprived the District of the opportunity to remediate any issues raised in that notice (Ex. C; Ex. D-2). As a 10-month school year encompasses 36 weeks and Student is entitled to four hours of SETSS per week and one hour of SLT per week, Student would be entitled to a bank of 144 hours of SETSS and 36 hours of SLT. I am decreasing the number of hours of SETSS by 6 hours to a total of 138 hours and am decreasing the number of hours of SLT by 1 ½ hours, to a total of 34 ½ hours to account for the 1 ½-week delay in notice.
EVALUATIONS
Although Parent has not requested any educational evaluations, Parent has requested that I order any relief deemed appropriate in this matter (Ex. A-3). Based upon my review of the IESP and Director’s testimony, I find that Speech and Language and Psychoeducational Evaluations to be administered by the District are warranted should Parent wish to have them conducted.
The May 2021 IESP is replete with disclaimers about the accuracy of testing. For example, a “comprehensive data driven assessment” conducted in December 2020 indicated that results should be interpreted with caution as standardized scores could not be obtained (Ex. B-1). Thereafter, a Psychoeducational Evaluation was conducted on April 11, 2021 (Ex. B-2). Again, though, the IESP states that, “[s]ince this evaluation was performed remotely in a non-standardized manner, caution should be used in interpreting the results” (Ex. B-20). Further, because testing was conducted virtually, several subtests in language dominance were not administered (Ex. B-3). Finally, despite the IESP’s recommendation of group SETSS, Provider Agency has determined that Student requires SETSS in a 1:1 format because Student’s disability necessitates direct instruction and a hands-on, multi-sensory approach to learning (Tr. 22).
Accordingly, I am ordering that should Parent wish that a Speech and Language and/or a Psychoeducational Evaluation be conducted, that the District conduct either or both.
RECONVENING OF THE IEP COMMITTEE
Pursuant to Parent’s request that I order any relief deemed appropriate in this matter (Ex. A-3), I am also ordering that if the Speech and Language and/or Psychoeducational Evaluations are conducted, that the CSE reconvene to determine Student’s continued eligibility for special education and/or related services, and if eligible, to develop an IESP or IEP in accordance with the IDEA and State law.
OTHER CONTENTIONS
Parent seeks payment of attorney’s 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.
Only a court can determine who is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the 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.
PENDENCY
I must also address Pendency/“Stay-Put” as Parent raised the matter in their DPC, and asserts that pendency rests in the May 6, 2021 IESP (Ex. A-2; Ex. B). However, the DOE did not implement the Student’s Pendency/Stay Put services immediately upon the filing of the DPC, and has since opposed Parent’s request for pendency, arguing that Student is not entitled to due process or pendency under federal or NYS law (IHO Exhibit III; Tr. 10-13).
The District opposes pendency because Student is parentally placed in a nonpublic school (IHO Ex. III; Tr. 10-11). Specifically, it argues that by voluntarily placing Student in a nonpublic school, Parent has no right to file a due process complaint for the implementation of equitable services under N.Y. Educ. Law § 3602-c and thus has no attendant right for Student to remain in their thencurrent educational placement during the pendency of these proceedings (IHO Ex. III-2-8; Tr. 10-11). District Representative also argues that Parent has no right to a pendency hearing or an order (IHO Ex. III-2-9; Tr. 10-11). District Representative further asserts that because Parent voluntarily placed Student in a nonpublic school, the school is their “then-current placement,” and any services outside of that placement are supplemental to pendency (IHO Ex. III-2, 3, 8-9). Finally, the District asserts that they have offered to resolve this matter and do not contest that the District previously recommended the equitable services contained in the May 2021 IESP (Ex. III-2, 3; Tr. 11-13).
Parent’s Attorney counters that pendency is a “statutory entitlement triggered the moment a due process complaint is filed”(Tr. 19), and “[t]he assertion that students with IESPs have no due process rights and therefore are not entitled to pendency amounts to an earth-shattering departure from the IDEA, the regulations, case law, and the manner in which the Impartial Hearing Office has operated not only in this particular case but in thousands of similar cases over many years” (IHO Ex. V-1). 23 More specifically, Parent’s Attorney asserts that N.Y. Educ. Law § 3602-c was created to supplement the IDEA and to provide procedural safeguards to parentally-placed students with disabilities (IHO Ex. V-1-3). Parent’s Attorney also asserts that the District’s argument that the equitable services sought “fall outside” of the student’s “then-current educational placement and therefore are “supplemental to pendency” is “bizarre” (IHO Ex. V-3). 24 [25] As a threshold issue, therefore, is whether the Student is entitled to pendency. For the reasons stated below, I find that Student is entitled to pendency.
23 I am without authority to address claims related to matters other than the one before me, and I am without authority to address systemic issues. Accordingly, my decision on pendency is based upon this case and the relevant statutory and case law. 24 Parent’s Attorney bases this assertion, in part, on the fact that the District did not contest pendency previously in a case involving “this very same student under the very same program in a case that was substantially similar and was litigated under case number . . .” (case number omitted) (IHO Ex. V-3). As no evidence regarding that matter was submitted, I have not considered this information in my decision. I also note that I would not be bound by the prior Order or Agreement on Pendency. Finally, I find that the District is entitled to assert a different position on pendency for the current school year than it may have had in a prior year. With that said, my findings regarding pendency are strictly confined to the issues raised during this proceeding and have no bearing upon my findings regarding the Motion to Dismiss and the issues presented as part of the DPH. As already discussed earlier in this Decision, N.Y. Educ. Law. § 3602-c is to be read in conjunction with N.Y. Educ. Law § 4401. Accordingly, students with disabilities enrolled in nonpublic schools are entitled to “equitable services,” and 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. As the District has pointed out, § 3602-c does not explicitly address implementation failures of the type at issue in this case (IHO Ex. III-6). However, 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)[26] (emphasis added); 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.
Section 4404, in turn, establishes a student’s right to pendency. The IDEA and the New York State Education Law require that a student remain in their then current educational placement, unless the student’s parent(s) and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student. 20 U.S.C. § 1415(j); NY Educ. Law §§ 4404(4), 4410(7)(c); 34 C.F.R. § 300.518(a); 8 NYCRR § 200.5(m); see Student X v. New York City Dep’t of Educ., 2008 WL 4890440, at *20 (E.D.N.Y. 2008); Bd. of Educ. v. O’Shea, 353 F. Supp. 2d 449, 455-56 (S.D.N.Y. 2005). Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships. See Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982); Wagner v. Bd. of Educ., 335 F.3d 297, 301 (4th Cir. 2003); Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3d Cir. 1996).
Because § 3602-c(2)(b)(1) expressly incorporates § 4404’s due process procedures, the DOE’s argument is without merit, and I find that the Student is entitled to pendency as a matter of law.
Additionally, I find the District’s argument that the Code of Federal Regulations “expressly bars the pursuit of DPCs and pendency for IESPs” inapposite (IHO Ex. III-4-5). It is well-established that a state law may provide procedural protections above and beyond its federal law counterpart. See, e.g., LIH v. New York City Bd. of Educ., 103 F. Supp. 2d 658, 668 (E.D.N.Y. 2000) (stating that, “[w]hile the IDEA establishes a basic floor of education, state law may mandate a more protective standard of educational services and procedural protection.”).
Finally, District Representative asserts that neither a Pendency Hearing nor Order on Pendency are proper because the District offered to resolve this matter and does not contest that the District previously recommended the equitable services contained in the May 2021 IESP (Ex. III-2, 3; Tr. 11-13). I find that the portion of the assertion that neither a Hearing nor an Order are proper because the District wishes to settle the matter unavailing. Pendency is not predicated upon whether the Parties wish to enter an agreement nor is it a remedy to be sought solely upon a failed negotiation. It is a procedural right to a continuation of previous services, which is a separate matter from settling the merits of a parent’s claims through negotiations. Further, Pendency is an entitlement that vests at filing. Accordingly, the District was automatically required to implement pendency for this Student on September 8, 2022. To the extent that the District further asserts that a Pendency Order is not required because there is no dispute, I find that argument unavailing as well. I do agree that my intervention would only be required if there was a dispute. However, putting aside for a moment that no resolution was ultimately reached, 27 by failing to enter into a Pendency Agreement and/or implementing pendency, the District created a dispute requiring my intervention. Starting on September 8, 2022, the District should have implemented pendency–regardless of whether the District believed it could negotiate a successful settlement. Accordingly, left without the protection of pendency, Parent sought intervention. Moreover, I find any assertion that an Order is not needed because the District offered a settlement problematic because an offer to settle is merely an offer. Until it is accepted and signed by all parties, it is not a resolution.
Having found that Student is entitled to pendency, I must determine the appropriate placement. Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement. See Mackey v. Bd. of Educ., 386 F.3d 158, 163 (2d Cir. 2004), citing Zvi D., 694 F.2d at 906. Although not defined by statute, the phrase “then current placement” has been found to mean: (1) the placement described in the student’s most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP.
See Dervishi v. Stamford Bd. of Educ., 653 Fed. App’x 55, 57-58 (2d Cir. June [27], 2016), quoting Mackey, 386 F.3d at 163; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 (2d Cir. 2014) (holding that the pendency provision “requires a school district to continue funding whatever educational placement was last agreed upon for the child”); see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 (2d Cir. 2015) (holding that a student's entitlement to stay-put arises when a due process complaint notice is filed); Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 (3d Cir. 1996); Letter to Baugh, 211 IDELR 481 (OSEP 1987). A prior unappealed IHO decision may also establish a student’s current educational placement for purposes of pendency. See Abrams v. Carranza, 2019 U.S. Dist. LEXIS 95403 at *8 (S.D.N.Y. June 6, 2019); Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197 (OSEP 2007).
Furthermore, the Second Circuit has stated that educational placement means “the general type of educational program in which the child is placed” (Concerned Parents, et. al. v. New York City Board of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]), and that the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers” (T.M., 752 F.3d at 171). However, if there is an agreement between the parties on the student’s educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student’s then-current educational placement. Bd. of Educ. v. Schutz, 290 F.3d 476, 483-84 (2d Cir. 2002); Evans v. Board of Educ., 921 F. Supp. 1184, 1189 n.3 (S.D.N.Y 1996); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 (S.D.N.Y. 2000), aff’d, 297 F.3d 195 (2d Cir. 2002); see also Letter to Hampden, 49 IDELR 197.
Finally, “placement” refers not just to a student’s classroom setting, but also to their related services. Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 453 (2d Cir. 2015) (“[T]he IDEA defines ‘free appropriate public education’ to include ‘special education and related services.’”) (quoting 20 U.S.C. § 1401(9)) (emphasis in original); Letter to Baugh, 211 IDELR 481 (OSEP 1987) (“The term ‘present educational placement’ . . . would generally be taken to mean the current education and related services provided in accordance with the child’s most recent individualized education program.”) (emphasis added). Accordingly, I find the District’s argument unavailing that services sought pursuant to an IESP “fall outside” of and are “supplemental” to the “then current educational placement” (IHO Ex. III-2, 3, 8-9).
I find that the program described in the May 6, 2021 IESP constitutes pendency and order the DOE to implement the program retroactive to September 8, 2022 (the date of the filing of the DPC) and continuing throughout the duration of this litigation per the Pendency Order immediately below.
PENDENCY ORDER
IT IS HEREBY ORDERED, retroactive to the filing of the DPC (9/8/2022), that the DOE shall provide during the pendency of this matter, the following program and related services in accordance with the May 6, 2021 IESP (Ex. B), namely:
• Special Education Teacher Support Services (“SETSS”), group, four periods per week to be administered in English; and • Speech-Language Therapy, individual, two times per week, 30 minutes, to be administered in English (Ex. A-2; Ex. B-8).
ORDERS
IT IS HEREBY ORDERED that the DOE shall fund for the 10-month 2022-2023 school year, a bank of 138 hours of Special Education Teacher Support Services (“SETSS”) Services to be administered in English by a licensed special education teacher of Parent’s choosing. The provider shall be paid at a reasonable market rate for any period during which said services are not provided by the DOE for the 2022-2023 school year. The rate for said services is to be determined by the District in accordance with a reasonable market rate the District has funded for group SETSS, and is not to exceed $185 per hour; and it is further
ORDERED that the DOE shall pay to the providers listed above upon within 30 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 ten-month 2022-2023 school year, a bank of 34 ½ hours of Speech Language services to be administered in English by a licensed provider of Parent’s choosing. Funding for said services is to be provided in the form of Related Services Authorizations (“RSAs”) to be provided to Parent within 15 days of issuance of this Order; and it is further
ORDERED that if Parent requests assistance finding a provider to provide the above services at any time, the DOE must locate three providers who are ready, willing, and able to begin providing the services to the 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 services, as described above, are not provided to Student by one year from the date of this Order, any remaining services shall expire; and it is further
ORDERED that, unless the DOE has conducted a Speech and Language Evaluation of Student since the filing of the DPC, the New York City Department of Education shall seek Parent’s consent to evaluate Student within 15 days of this Order; and it is further
ORDERED that, unless the DOE has conducted a Psychoeducational Evaluation of Student since the filing of the DPC, the New York City Department of Education shall seek Parent’s consent to evaluate Student within 15 days of this Order; and it is further
ORDERED that the Committee on Special Education shall convene within 15 days of completion of the Speech and Language and/or Psychoeducational Evaluations, or within 15 days of this Order if no evaluation is conducted, to consider Student’s eligibility for special education and/or related services, and if eligible, to develop an IESP or IEP in accordance with the IDEA and State law; and it is further
ORDERED that until such time as the Committee on Special Education convenes, the District must implement services as ordered above.
May 1, 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
REDACTED District Representative
REDACTED District
REDACTED Private School
REDACTED Director of Provider Agency
REDACTED Provider Agency
REDACTED Direct Provider
APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Due Process Complaint 09/08/2022 6 pages
B. Individualized Education Services Program 05/06/2021 11 pages
C. Ten Day Notice 09/04/2022 2 pages
D. Affidavit of Parent 12/12/2022 2 pages
E. Affidavit of REDACTED 12/12/2022 3 pages
F. Contract 06/01/2022 1 page
G. Provider Credentials undated 1 page
DOE EXHIBITS
None
IHO EXHIBITS
I. District Email Submitting Motion to Dismiss and Memorandum Concerning Pendency Motion to Dismiss for the 12/30/2022 1 page
II. New York City Department of Education Memorandum of Law in Support of the New York City Department of Education’s 12/30/2022 12 pages
III. Position Concerning Pendency 12/29/2022 9 pages
IV. Email Submitting Parent’s Pendency Brief 01/09/2023 1 page
V. Parent’s Pendency Brief undated 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] References to the transcript from the Due Process Hearing are denoted “Tr.”
[3] Although Parent’s Attorney indicated that Parent sought funding at the “providers’ prevailing rate,” Parent testified that they are seeking “a reasonable market rate” for the SETSS (Ex. A-3; Ex. D-2; Tr. 6-7, 19).
[4] Although no PHC was held, a Settlement Conference was conducted on November 29, 2022. Settlement conferences are conducted by an OATH Settlement Officer or an OATH IHO not assigned to the case whose purpose is to aid the parties in exploring and facilitating a resolution to the DPC. The content of the conferences is confidential, and the parties are directed to attend with knowledge of the dispute and settlement authority should there be an interest in resolution. Settlement Conferences are not recorded.
[5] Labor Day was observed on Monday, September 5, 2022. Although the email was sent on September 4, 2022, the letter was dated Tuesday, September 6, 2022 which was the following business day. Accordingly, for purposes of this decision, I refer to the TDN as dated September 6, 2022.
[6] Despite Director’s testimony referring to the “progress report entered into evidence,” no progress reports were proffered as evidence (Ex. E-3; Tr. 25).
[7] Although the District filed a “Motion to Dismiss” and a separate “Memorandum on Pendency,” Parent’s Attorney filed a “Pendency Brief” which lays out arguments that appear to address both the District’s Motion and Memorandum (IHO Exhibit V).
[9] See https://infohub.nyced.org/docs/default-source/default-document- library/specialeducationstandardoperatingproceduresmanualmarch.pdf?sfvrsn=4cdb05a0_2&msclkid=3ab 70cadd15f11ec93b699324277a741 (last visited April 30, 2023).
[11] 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).
[12] 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.
[13] See McKinney's Consolidated Laws of NY, Book 1, Statutes §§ 73 and 92(a).
[14] 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).
[15] 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.”
[16] See https://p12.nysed.gov/specialed/publications/policy/documents/chapter-378-laws-2007-guidance-on-nonpublic-placements.pdf. (last visited April 30, 2023)
[17] 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.
[18] See https://infohub.nyced.org/docs/default-source/default-document- library/specialeducationstandardoperatingproceduresmanualmarch.pdf?sfvrsn=4cdb05a0_2&msclkid=3ab 70cadd15f11ec93b699324277a741 (last visited April 30, 2023).
[19] 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). I find that in the instant case, the IESP has a “Projected Date of Annual Review” of May 6, 2022 (Ex. B-1), and that nothing in the IESP states that Parent must reach out to the District to have that review conducted.
[20] 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.
[21] Although, as per my analysis above, such notice was not required in this matter.
[22] See https://www.schools.nyc.gov/about-us/news//2022-2023-school-year-calendar (last visited January 29, 2023).
[25] I have considered Parent’s remaining claims and found them not necessary to my pendency decision, in particular because I have addressed the District’s specific claims.
[26] See https://p12.nysed.gov/specialed/publications/policy/documents/chapter-378-laws-2007-guidance-on-nonpublic-placements.pdf.
[27] Parent’s Attorney challenged the assertion that the District was willing to resolve the matter as based on a “cursory review” of correspondence in this matter, Parent’s Attorney did not see any offer, and as of the DPH, there was “no email from the [D]istrict in evidence, we have no resolution offering in evidence” (Tr. 13).