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CASE NUMBER: 586263 - NYC: 237694
FINDINGS OF FACT AND DECISION
Student’s Name [1]: REDACTED (“Student”)
Date of Birth: REDACTED
School District: REDACTED
Hearing Requested by: REDACTED (“Parent”)
Request Date/Date Complaint Filed: 09/12/2022
Date(s) of Hearing: 03/01/2023
Actual Record Closed Date: 03/23/2023
Date of Decision: 03/23/2023
Date of Distribution if Different than Decision Date: N/A Hearing Officer: Harry A. Christodoulou
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 1, 2023
For the Student:
REDACTED (hereinafter referred to as “Parent’s representative”)
For the Department of Education (“DOE”): REDACTED (hereinafter referred to as “District’s representative”)
INTRODUCTION AND PROCEDURAL HISTORY
Student is a REDACTED-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute. On September 12, 2022, Parent, through Parent’s representative firm, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA regarding the 2022-2023 school year (“SY”) (Ex. IHO-I). I was appointed on November 15, 2022 to determine the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1), concerning Student’s special education program.
It is asserted in the DPC that the DOE, inter alia, failed: to offer Student a program of special education services and supports to address the Student’s documented disabilities in compliance with NYS Education Law; and to furnish the Student with all the recommended services for the 2022-2023 SY, denying Student the right to equitable special educations services. Parent sought, inter alia, to invoke Student’s pendency rights (Ex. IHO-I-2) and an order compelling the DOE to implement Student Teacher Support Services (“SETSS”) and the provision of related services of Speech-Language Therapy (“SLT”), at enhanced market rates (Ex. IHO-I-2). An order on pendency was issued on January 11, 2023 (Ex. IHO-III).
As final relief, Parent seeks, inter alia, an Order compelling the District to implement Student’s SETSS program and related services, both at enhanced market rates; and a bank of compensatory education services for its failure to assign a provider (Ex. IHO-I-2). At the IH, which took place on March 1, 2023, Parent’s representative withdrew, without prejudice: i) the claim in the DPC for related services pertaining to SLT; and ii) the claim for compensatory education services. District’s representative had no objection to those claims being withdrawn on a ‘without prejudice’ basis.
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[2] and its implementing regulations,[3] and the New York State Education Law[4] and its implementing regulations. [5]
LEGAL FRAMEWORK
A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits [6].
The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE [7]. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" [8].
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. [9]
Students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP from the public school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them [10].
The IDEA does not confer entitlement to students enrolled in nonpublic schools to all the special education programs or related services such students would receive if they attended public schools. [11]
Instead, the IDEA requires school districts to participate in a consultation process for making special education services available to students in nonpublic schools,[12] and to “allocate a proportional share of federal IDEA funds to provide special education and related services to parentally-placed private school children” with disabilities. [13]
These “more limited services provided to parentally-placed children in private schools is commonly known as equitable participation, and is distinct from the FAPE requirement.” [14]
The IESP must be developed in the same manner and with the same contents as an IEP is developed. School districts are required to provide special education services pursuant to the IESP. Such services must be provided on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.
Per a New York State Education Department guidance document 15:
“The term "equitable basis" means that special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district. The new State legislation is intended to maintain the level of services provided to NYS nonpublic students with disabilities through IEPs. …
Accordingly, parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program. A nonpublic student may not be denied services that a public school student would receive based solely upon his or her status as a nonpublic student . . . ”
Where it is determined that IESP services were not appropriately provided on an equitable basis, the New York State Education Law permits a hearing officer to redress the violation under the same broad authority available for violations of the IDEA.[16] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act”[17] and damage awards are not available under the IDEA. [18]
15 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, Attachment 1, September 2007.
The hearing officer “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” [19]
FINDINGS OF FACT AND DECISION
Parent disclosed an IESP relevant to prior SY(s), which was admitted to the record (Ex. P-B). This IESP was developed for Student with an implementation period (10/04/2017-09/30/2018), pursuant to an IESP meeting held on September 29, 2017. In this IESP, the Committee on Special Education recommended, inter alia: i) a special education program/services for Student: SETSS, Direct Service, Group Service, Language of Service: English, 5 times per week, Period, Separate Location; and ii) Related Services: SLT, Individual Service, Language of Service: English, 2 times per week, 30 minutes, Separate Location, therapy room (Ex. P-B-7). Pursuant to the Order on Pendency, the DOE has been ordered to either reimburse the Parent(s) and/or pay the cost of the Student’s receipt these services[20] in accordance with The IESP (Ex. P-B-7), it being the last agreed upon program.
Parent asserts in the DPC that: the “District failed to furnish the student with all the recommended services for the 2022-2023 school year. Therefore, the District’s failure to provide the student with an appropriate program of services was not in compliance with NYS Education Law and denied the student the right to equitable special educations services”; “the District failed in their statuary burden to implement the student’s mandated SETSS and Related Services with a certified SETSS and Related Service providers. The District shifted the burden of implementation onto the parent, failing to provide the student with SETSS and Related Service providers and expecting the parent to find providers on her own”; and “Despite the efforts, the parent was unable to procure SETSS and Related Service providers for the school year. The Parent was forced to implement the services on her own by utilizing the services of an agency at enhanced rates” (Ex. IHO-I-1, & IHO-I-2).
At the IH Parent’s representative asserted that the relief being sought, namely: SETSS, Direct Service, Group Service, Language of Service: English, 5 times per week, Period, Separate Location, be ordered for the 2022-2023 SY (“The Relief”), as an appropriate remedy for DOE’s failure to provide the equivalent of a FAPE or equitable services, for the claims that remained in the DPC. District’s representative confirmed at the IH that there was no factual dispute and therefore, there is no need for testimony to be put on record and there was no objection to a final order being granted without the need for further hearing.
In a DOE guidance memorandum [21], published after the 2005 amendments to § 3602-c, describing its intended application of the law, the memorandum recognized that “Section 3602-c . . . was amended to comply with section 612(a)(1) 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.”[22] Among the State’s acknowledged obligations listed in the memorandum are, inter alia: “[T]he district of location must conduct a reevaluation at least once every three years of each eligible parentally placed nonpublic school student with a disability” which “is important . . . because [reevaluations] provide current date needed to determine that total number of eligible students . . . used in calculating the proportionate share of funds that must be used on services” [23]; and “The 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.”[24] There is no evidence on record that any of this occurred for the Student for the 2022-2023 SY.
Given the concession regarding Parent’s assertions and the lack of a dispute in regard thereto, I find that the DOE’s failure to reevaluate at least once every three years, and/or review Student’s IESP not less than annually and/or implement the Student’s IESP services was tantamount to the denial of a FAPE, and IESP program and/or services were not appropriately provided on an equitable basis. Despite the concession, given that the District bears the onus, the record and the probabilities, even if it were 50-50, supports a finding that the District failed to meet its burden.
Claim for recovery at an “enhanced rate”:
Notwithstanding my finding that the Student was denied the equivalent of a FAPE, for the 2022-2023 SY, that is not the end of the enquiry.
It has been held that in approaching the dispute as to the recoverability of an enhanced rate, such disputes should as a practical matter be “effectively examined using a Burlington/Carter unilateral placement framework” and that “attempts that … do not use a Burlington/Carter analysis have tended to lead to chaos” [25].
Further that "parents who are dissatisfied with their child's education can 'unilaterally change their child's placement during the pendency of review proceedings' and can, for example, 'pay for private services, including private schooling.' They 'do so,' however, 'at their own financial risk.'
They can obtain retroactive reimbursement from the school district after the IEP dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test. A parent can obtain such reimbursement if: '(1) the school district's proposed placement violated the IDEA' by, for example, denying a FAPE to the student because the IEP was inadequate; (2) 'the parents' alternative private placement was appropriate'; and (3) 'equitable considerations favor reimbursement.'" [26].
A district is required by State law to locate and assign publicly provided teachers for a dually enrolled student [27]. It has been found that the District's system for providing SETSS that requires the parent to seek out and arrange for a student's instruction by a special education teacher based on information the parent acquired online is a violation of State law [28].
It has been held that "a board of education lacks authority to provide instructional services through an independent contractor"[29] and that the application of State law requires that core instruction provided by a school district 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 [30]. It has also been held that “any notion of a public rate for independent SETSS instruction for this student that may be sanctioned in a policy of the district is flawed and cannot be reasonably relied upon by either party, because the district was not authorized to contract for the provision of an independent special education teacher” and that while “districts cannot deliver special education services called for by their educational programming in an unauthorized manner, due at least in part to the requirements that school officials and employees remain accountable under the statutory and regulatory mechanisms put in place by state and federal authorities, they can be made to pay for a privately obtained parental placement, a process that is essentially the same as the federal process under IDEA" [31].
It is asserted in the DPC that Parent was forced to implement the services on her own by utilizing the services of an agency at enhanced rates (Ex. IHO-I-2). Parent disclosed the contract entered into between Parent and the Agency (defined on page 12), which contract confirms an obligation by Parent to pay for the SETSS provided by the Agency to Student (Ex. P-E-2). In Parent’s letter to DOE dated August 30, 2022, Parent noted, inter alia, that: should the District not provide Parent with the recommended and agreed upon services, Parent would be forced to contract with a private agency for the provision of those services; since the DOE was not meeting Student’s needs, Parent believed that these privately obtained services should be at public expense; Parent would pursue reimbursement for these appropriate and specially designed private educational services; and that if the District did not provide Student’s mandated services, Parent would continue to obtain those mandated services through Parent’s contracted agency (Ex. P-C). Accordingly, the DOE was on notice before the SY began that Parent would be seeking reimbursement for these private educational services from the DOE.
To the extent that Parent has not actually paid any money for which she must be reimbursed, this matter would fall “in a subset of more complicated cases in which the financial injury to the parent and the appropriate remedy are less clear”. “The Second Circuit Court of Appeals has held that a direct payment remedy is an appropriate form of relief in some circumstances, and that "[i]ndeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework" [32].
New York State Education Law section 3001 (2016) states that a provider should be licensed in the area of the grade of the child, however, this applies to teachers being employed in public schools. The certification, or lack thereof, may however be a relevant when it comes to determining a reasonable rate for the services provided. Parent submitted into evidence a printout of “Certificate Information for New York State Teaching Certificate Holder” (Ex. P-E) for Provider (defined on page 12). It is evident therefrom that Provider held, effective from 09/01/2009 [33], certification for “Students With Disabilities (Grades 1-6) Professional Certificate”, and effective from 09/01/2013 certification for “Students With Disabilities - Grades 7-12 – Generalist Professional Certificate” (Ex. PE). No expiration date is listed for these certifications for Provider.
Generally, teachers at a unilateral placement need not be State-certified [34], there must however be objective evidence of special education instruction or supports that are specially designed by the student's providers at the private school who have reasonable qualifications that are specifically related to the student's deficits [35]. In the absence of evidence to the contrary, these certifications would suffice.
Based on the record, I find that Parent is entitled to an award for The Relief. Other than the relief set out in my Order below, I find that no basis and/or evidence in the record supports any additional relief.
ORDER
Based upon the above Findings of Fact, it is hereby ORDERED that, the DOE is directed to fund for the 2022-2023 (regular or ten-month) SY, less any amounts already funded pursuant to the Order on Pendency (Ex. IHO-III), SETSS, Direct Service, Group Service, Language of Service: English, 5 times per week, Period, Separate Location, at an enhanced rate of $175.00.
It is FURTHER ORDERED that, item b. in the Order on Pendency dated January 11, 2023 (Ex. IHO-III-7) is hereby amended to reflect “SETSS, five periods per week (direct service, Group service), English”, so as to accord with the contents of Student’s IESP (Ex. P-B-7).
SO ORDERED.
DATED: March 23, 2023
__H.A.C._(Signed Electronically)___
Impartial Hearing Officer
Harry A. Christodoulou
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
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD [36]
PARENT’S EXHIBITS
A. Pendency Implementation Form Undated 2 pages
B. Individualized Education Services Program 09/29/2017 9 pages
C. Parent Letter 08/30/2022 1 page
D. Parent Agreement Undated 2 pages
E. Provider Credential Undated 2 pages
DOE’S EXHIBITS
- - - -
IHO’S EXHIBITS
I. Due Process Request, Release, and Email 09/12/2022 5 pages
II. Email exchange with the parties 12/15/2022 3 pages
III. Order on Pendency 01/11/2023 10 pages
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] 20 U.S.C. § 1400 et seq.
[3] 34 C.F.R. § 300 et seq.
[4] Educ. Law Art. 89 § 4404 et seq.
[5] 8 NYCRR § Part 200.
[6] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[7] 20 U.S.C. § 1415[f][3][E][i].
[8] Rowley, 458 U.S. at 203.
[9] 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]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[10] Provisions of section 3602-c; See also 34 CFR 300.130 and 300.145-147.
[11] See 34 C.F.R. § 300.137(a).
[12] See 34 C.F.R. § 300.134.
[13] E.T. and D.T. ex rel. E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at 10 (S.D.N.Y. 2012) (citing J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 665 [S.D.N.Y. 2011] [internal quotation marks omitted]); see also 20 U.S.C. § 1412(a)(10)(A)(i)-(ii); 34 C.F.R. §§ 300.131 – 300.133.
[14] E.T. and D.T. ex rel. E.T., supra., at 11 (internal quotations and citations omitted); c.f. Application of a Student with a Disability, Appeal No. 20-115 (Sept. 3, 2020) at pg. 4 (noting that in a particular case the difference in applying a FAPE standard or an “equitable services standard” is a “distinction without a difference” where N.Y. Educ. Law § 3602-c “has been routinely treated . . . as providing eligible students with an individual right to special education services that must be tailored to the student’s particular needs by the CSE” that are then protected “through the due process hearing system called for by the IDEA” (internal citations omitted)).
[16] 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]).
[17] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[18] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[19] See Doe v. East Lyme, 790 F.3d at 454.
[20] I note that the pendency order dated January 11, 2023 erroneously referred to “Individual service”, which does not accord with the contents of The IESP (Ex. P-B-7), and should have reflected “Group service”. To the extent necessary, that Order is being amended herein to reflect “Group service”.
[21] See Guidance on Parentally Place 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, September 2007).
[22] Id. at pp. 1 to 2 (emphasis removed).
[23] Id., Attachment 1, at pg. 3.
[24] Id., Attachment 1, at pg. 4 (emphasis added).
[25] Application of a Student with a Disability, Appeal No. 20-140.
[26] Ventura de Paulino v New York City Dept. of Educ., 959 F3d 519, 526-27 [2d Cir 2020] [citations omitted].
[27] Educ Law § 3602-c[2][a].
[28] See Application of a Student with a Disability, Appeal No. 20-115; Application of a Student with a Disability, Appeal No. 20- 087; Application of a Student with a Disability, Appeal No. 20-140.
[29] Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeal of Woodarek, 46 Ed Dept Rep 1, Decision No. 15,422).
[30] See Bd. of Co-op. Educ. Servs. for Second Supervisory Dist. of Erie, Chautauqua & Cattaraugus Ctys. v. Univ. of State Educ. Dep't, 40 A.D.3d 1349, 1350 [3d Dep't 2007].
[31] Application of a Student with a Disability, Appeal No. 20-140.
[32] See Application of a Student with a Disability, Appeal No. 20-140 citing E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 [2d Cir. 2014]; also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 430 [S.D.N.Y. 2011] this latter case finding it appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, had not done so due to a lack of financial resources. See also Application of a Student with a Disability, Appeal No. 20-087.
[33] This document reflects a printing date on the top left corner of 02/28/2023.
[34] See Carter, 510 U.S. 7, 14, noting that unilateral placements need not meet state standards such as state certification for teachers. See also Application of a Student with a Disability, Appeal No. 12-125.
[35] Application of a Student with a Disability, Appeal No. 20-140.
[36] Exhibits P-A, P-B, IHO-I, and IHO-II were previously admitted pursuant to the Order on Pendency granted herein.