NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBER: 586237 - NYC: 237668
FINDINGS OF FACT AND DECISION
Case Number: 237668
Student’s Name:[1] REDACTED (“Student”)
Date of Birth: REDACTED
School District: NYC #20
Hearing Requested by: REDACTED (“Parent”)
Request Date/Date Complaint Filed: 09/12/2022
Date(s) of Hearing: 01/12/2023
Actual Record Closed Date: 01/20/2023
Date of Decision: 01/20/2023
Date of Distribution if Different than Decision Date: N/A
Hearing Officer: Leah Martin, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 12, 2023
For the Student:
REDACTED (“Parent’s Advocate”)
For the Department of Education:
REDACTED (“DOE Representative”)
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on September 12, 2022, (Ex. A).[2] In the DPC, the Parent alleges that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) on an equitable basis under the Individuals with Disabilities Education Act (“IDEA”) and Section 3602-c of the Education Law for the 2022-23 school year. (Ex. A).
I was appointed on November 15, 2022. On November 21, 2022, Parent’s advocate appeared virtually for a pre-hearing conference (“PHC”).[3] Pendency was raised in this matter. (Ex. A-2). At the PHC, a schedule was set for the parties’ pendency submissions. (See PHC Summary and Order, p. 2). Parent’s advocate emailed their pendency submission on November 27, 2022[4] (see PEND Parent Submission) and the DOE made no submissions. On December 5, a Pendency Order was issued directing the DOE to provide five periods per week of Special Education Teacher Support Services (“SETSS”) pursuant to the student’s 2/15/22 Individualized Education Services Program (“IESP”). (See Order on Pendency). At the PHC, Parent’s Advocate requested an extension for settlement negotiations, and another was requested by both parties at a December 15 status conference; both were granted. (See PHC Summary; Orders of Extension). Prehearing orders regarding the rules for disclosures were emailed to the parties on December 15, 2022. (See Prehearing Orders). In that email, the parties were instructed that hearing disclosures were due on January 5 and were directed to notify the submitting party of any objections two business days in advance of the hearing or any objection could be deemed waived. (Id.).
On January 12, 2023, the virtual hearing was held. It was a closed hearing. DOE Representative and Parent’s Advocate were both present with no other attendees. The DOE offered no exhibits or witnesses into evidence and made no substantive opening or closing statements. (Tr. 4, 7).[5] Parent’s Advocate entered 5 exhibits (A-E) into evidence without objection. (Tr. 5). The Parent’s only witness (“Director”) gave testimony by affidavit (Ex. E), and the DOE had no questions for cross-examination, so the witness did not appear virtually. Parent’s Advocate gave a brief combined oral opening and closing statement. (Tr. 7-8). The DOE conceded that the student was entitled to equitable services for the 2022-23 school year, that they failed to implement the student’s IESP, and that they were not disputing the amount or type of services requested or the enhanced rate. (Tr. 6-7). The record was closed on January 20, after receipt and review of the hearing transcript.
JURISDICTION
The due process hearing (“DPH”) was held, and a decision in this matter is being rendered, pursuant to the IDEA, 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law §§ 3602-c, 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
The student is currently classified as a student with a learning disability. (Ex. B-1). The student is now in fifth grade and has been attending parochial school (“the Parochial School”). (Id.; C-4). The student has been receiving special education services on an equitable basis. (Ex. A-1; B-1). The student exhibits difficulty with reading and math. (Ex. B-1). The DOE held a review meeting of the committee on special education (“CSE”) and developed an IESP on February 15, 2022, which recommends SETSS (five hours per week). (Ex. B-8). Parent contends that they were forced to find a private provider for the necessary SETSS, due to the DOE’s inaction, and were unable to find one willing to work at the DOE’s rates. (Ex. A-1-2). The Parent requests funding for 5 hours per week of SETSS by the Parent’s chosen service provider (“Service Provider”), at an enhanced rate of $195 per hour, for the entirety of the 2022-23 10-month school year. (Ex. A-2).[6]
ISSUES
There are no factual issues in dispute here. At the hearing, the DOE did not contest the nature or amount of the special education and related services requested, nor did they dispute the requested hourly rate for reimbursement. (Tr. 2).
FINDINGS OF FACT
After a full review of the record generated at the hearing, I make the following findings of fact.[7] The DOE has conceded that the student is entitled to equitable services and that they failed to implement the student’s IESP for the 2022-23 school year. (Tr. 6-7). The Parent was present at the 2/15/22 CSE meeting. (Ex. B-8). The 2/15/22 IESP provides for five periods per week of direct SETSS. (Ex. B-5). When the DOE failed to arrange for the student’s equitable services, the Parent was forced to look for their own provider. (Ex. A-1-2). They were unable to find one willing to work at the DOE’s published rates. (Id.). The last-agreed-upon IESP for the student called for the provision of 5 periods per week of direct group SETSS. (Ex. B-5). The DOE is not disputing that the student is entitled to these services, nor are they contesting the enhanced rate the Parent is seeking. (Tr. 6-7).
On August 30, 2022, a contract was executed between the student’s mother and the Service Provider to provide SETSS to the student. (Ex. D). The Service Provider has been providing SETSS to the student since September 12, 2022. (Ex. E-1). The SETSS are provided by one individual (“Individual Provider”) who is certified to teach students with disabilities in New York and has experience working as a Special Educator. (Ex. E-2). The Service Provider charges an hourly rate of $195 for SETSS. (Ex. E-2). This rate includes the cost of the Individual Provider and their support team, as well as software, training, assessment materials, educational supplies, and overhead costs, and is consistent with the market rate. (Ex. E-2-3).
LEGAL FRAMEWORK
FAPE
The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. §1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). 34 C.F.R. §300.13. A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). 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). The IEP must be reviewed at least annually, 34 C.F.R. §300.324(b)(1)(i), and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year, 8 NYCRR §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010).
For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2). Further, under caselaw, failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
A board of education may be required to pay for educational services obtained unilaterally by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). These three conditions (“prongs”) constitute the Burlington/Carter test.
A unilateral placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)(“[Parents] need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”). Educational progress can be a factor weighing in favor of the appropriateness of a unilateral placement. Frank G., 459 F.3d at 365. To qualify for reimbursement under the IDEA, parents need not show that the unilateral placement is perfect or that it meets all state educational standards. Id. at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).
The IDEA permits awards of direct payment to unilateral placement providers where the parents have not yet made payments but are legally obligated to do so. See Mr. A. ex rel. D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427 (S.D.N.Y. 2011). Under Burlington/Carter, if the parents are financially obligated to pay for the contracted services and have met their prong two burden, the contract must be fully reimbursed or directly funded by the District unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced. See Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993) (“Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”); J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”).
In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking reimbursement for a unilateral private placement has the burdens of production and persuasion on the appropriateness of such placement. NYS Educ. Law §4404(1)(c).
DUAL ENROLLMENT
Pursuant to New York’s “dual enrollment” statute, Educ. Law §3602-c, New York State resident nonpublic school students are entitled to an IESP developed by the school district where the nonpublic school is located and the IESP must be developed in the same manner and with the same content as an IEP. The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools. See 34 CFR 300.137(a). Under State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made. Educ. Law §3602-c(2). Then, the district of location's CSE must review the request and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]." Educ. Law §3602-c(2)(b)(l).
Special education services under an IESP must be provided on an equitable basis as compared the services provided to other students with disabilities attending public schools and nonpublic schools. Section 3602-c also enables a parent to initiate an impartial hearing, pursuant to Educ. Law §4404, to challenge an IESP.
State law requires the District to locate and assign publicly-provided teachers for all dually-enrolled students. Educ. Law §3602-c(2)(a); see also Office of Special Educ. Memos, Clarifying Information Related to Contracts for Instruction, July, 2009 (available at http://www.p12.nysed.gov/resources/%20contractsforinstruction/documents/contractsforinstruction2009.pdf) and Q and A related to Contracts for Instruction, June 2010 (available at http://www.p12.nysed.gov/%20resources/contractsforinstruction/documents/contractsforinstruction2010covermemo.pdf) (both explaining that the DOE cannot contract for educational services with nonprofits or other agencies, except in rare circumstances not applicable here). The DOE’s widespread abrogation of their duty to provide equitable services has been discussed at length in several recent State Review Officer decisions. See, e.g., Application of a Student with a Disability, Appeal No. 21-119 (Aug. 6, 2021)(collecting cases). Generally, it appears that the DOE has been relying on parents to obtain the services of independent providers to implement SETSS and related services contained in a child’s IESP, and then often disputing the rate of such services at due process hearings. See id.; Application of a Student with a Disability, Appeal Nos. 21-029; 21-028; 21-025; 20-141; 20-140; 21-115; 20-099; 20-094; 20-087.
ANALYSIS AND CONCLUSIONS OF LAW
Although there is no evidence in the record of the Parent’s timely request for equitable services, the DOE has conceded the student’s entitlement to them. Furthermore, it is undisputed that the DOE failed to implement an IESP for the student for the 2022-23 school year, despite their agreement that the student is entitled to equitable services. The District provided no evidence to suggest that it even attempted to arrange for the delivery of equitable services here. Thus, the Parent was forced to arrange for services on their own. In doing so, they unilaterally chose a provider and entered a service contract. I agree with the analysis in Application of a Student with a Disability, Appeal No. 21-119, and many of the above SRO decisions, which liken these situations to tuition reimbursement cases; the District can be made to pay for special education services that a parent has paid or become legally obligated to pay, even though the District would not have been able to contract for such services directly. Accordingly, I will utilize the three-prong Burlington/Carter analysis in deciding this issue.
As for prong 1, the District is not contesting that it failed to implement the IESP for the current school year. So, they have conceded that they cannot meet their prong 1 burden. I find that the District’s failure to implement the student’s 2/15/22 IESP constitutes a denial of the student’s equitable entitlement to special education services for the 2022-23 school year.
As for prong 2, I find that the Parent has met their burden. At the hearing, the District did not contest the appropriateness of the requested special education services, nor did they contest the qualifications of the Service Provider or the reasonableness of the requested enhanced rate. The appropriateness of the SETSS requested by the Parent is also supported by the record as they are contained in the student’s current IESP. The District did not object to the qualifications of the Individual Provider, and I find that they are well-qualified to provide the relevant services. Thus, there is no question that the SETSS provided by the unilateral placement are appropriate here. Furthermore, the Parent has demonstrated that they are legally obligated to pay for the requested SETSS at the enhanced rate of $195 per hour.
Since the Parent has met their prong 2 burden, the only issue left to be addressed is prong 3 – whether the equities favor reimbursement and/or direct payment to the Service Provider for the contracted services. The Parent participated in the CSE meeting and cooperated with the DOE. Accordingly, I find that there are no equitable considerations that weigh against the Parent here and the requested direct payment is appropriate.
I have reviewed the parties’ remaining contentions and find them to be either 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 the Parent’s remaining claims not discussed herein are dismissed with prejudice.
DECISION AND ORDER
Based on the record in this proceeding, I find that the student is entitled to the requested services for the entirety of the 2022-23 10-month school year [5 periods per week of SETSS, at the enhanced rate of $195 per hour]. Direct payment should be made to the Service Provider for the enhanced-rate SETSS.
IT IS THEREFORE ORDERED:
- • THAT the New York City Department of Education shall (to the extent not previously funded through pendency) provide direct payment to an appropriately qualified provider of the Parent’s choosing, at a rate up to $195 per hour, for 5 periods per week of SETSS for the 2022-23 10-month school year, within twenty days of submission of invoices for the SETSS rendered to the student during that specified period.
SO ORDERED.
DATED: January 20, 2023 Leah Martin, Esq._(Signed Electronically)_
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 – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
Exhibit
Document
Date
Pages
A.
Impartial Hearing Request
09/12/22
4
B.
CSE IESP
02/15/22
8
C.
Parent Letter
08/30/2022
D.
Parent Contract
08/30/2022
E.
Testimony Affidavit (Director)
01/03/23
DOE’S EXHIBITS
Exhibit
Document
Date
Pages
-
-
-
-
IHO’S EXHIBITS
Exhibit
Document
Date
Pages
-
-
-
-
Footnotes
[1] Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Exhibits shall be referred to as follows: Ex., followed by lettered designations for Parent’s Exhibits, numbered designations for DOE’s Exhibits, and roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parents’ Exhibit A, page 1, will be referred to as (Ex. A-1).
[3] The DOE received the invitation to the conference but did not appear.
[4] Parent’s pendency submissions were two days late, but the DOE did not object to the late submission and made none of their own, so it was accepted.
[5] The hearing transcript will be referred to as “Tr.” followed by the page number within the transcript. For example: (Tr. 1).
[6] Although the DPC also requests related services at an enhanced rate and a bank of compensatory services for any sessions not provided (Ex. A-2), there are no related services mandated by the 2/15/22 IESP (Ex. B-5) and Parent’s Advocate made clear at the hearing that those requests were included as a catch-all and are not applicable to this case (Tr. 5-6).
[7] The facts contained in the “Background” section above are incorporated here as well.