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FINDINGS OF FACT AND DECISION
Case Number: 237925
Student’s Name: REDACTED
Date of Birth: REDACTED
District: REDACTED
Hearing Requested By: Parent
Date of Hearing: December 7, 2022
December 12, 2022
January 11, 2023
February 13, 2023
March 14, 2023
March 31, 2023
May 3, 2023
May 22, 2023
Actual Record Closed Date: June 18, 2023
Hearing Officer: Judith Schneider, Esq.
An Impartial Hearing for the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”) was conducted by me remotely via teleconference
Procedural History
The proceeding was initiated at the request of the parents (hereinafter “the parent”) by correspondence dated December 9, 2022, filed September 13, 2023. (Ex. A) I was appointed Impartial Hearing Officer on November 7, 2022. A pendency order was issued by me on January 6, 2023 which provided from September 13, 2022 throughout the pendency of this matter at market rate: SETSS (9 periods per wk. group); Occupational Therapy (“OT”) 2x30 min. per wk. (1:1)).
Parties moved to extend the compliance date on various occasions for settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript and closing statements and issuance of the decision. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the requests for extensions of the compliance dates were granted.
The current compliance date is July 25, 2023. The record closed on June 18, 2023.
Positions of the Parties
The parent asserts that the last IESP was developed on June 15, 2021, that the district failed to provide a FAPE for the 2022-2023 school year (“SY”) and that the student continued to require services. The parent unilaterally provided SETSS services through REDACTED (“the Agency”), seeks district funding at market rate and asserts that equitable considerations do not provide a basis for denial or limitation. [1] (Exs. A, II;T40-42)
In its opening statement, the district stated that it did not dispute the student’s entitlement to services but contested the rate and questioned the validity of the contract between the parent and the agency. [2] Further the district asserted disagreement with the parent claim that the student was denied a FAPE and claimed that there was no entitlement to a FAPE when students were placed in private schools and services pursuant to Education Law section 3602-c were sought. (T44-47) In its closing statement it also asserted parent failure to comply with a requirement that the a written request for services must be made to the district by June 1 of the preceding school year, questioned the credibility of certain parent witnesses and raised issues concerning parental cooperation with regard to the services. (Ex. II)
Cases Presented
Both parties submitted documents for admission into evidence. A list of documents in the record is appended.
The parent presented the testimony of: an Agency financial administrator (“the administrator”); the Agency educational supervisor for services provided to the student (“the supervisor”); the student’s mother (“the parent”)
The district presented no witnesses for its direct case but presented as a rebuttal witness the Agency administrator previously presented by the parent.
Findings of Fact and Conclusions of Law
A Evidence Presented
The student’s need for the SETSS sought for the 2022-2023 SY is not contested by the district. Further the district has not disputed the parent’s claim that the last IESP at the time of filing was created on June 15, 2021.
The student, now a 10th grader, was described by the CSE, as being a charming child who presented with significant delays in all academic areas and had limited written expression very poor memory, difficulty with word retrieval a small fund of knowledge and limited critical thinking skills. (Ex. C) See also T89-90 and Ex. E.
By Parent Agreement dated July 1, 2022 (“the Agreement”), the parent agreed to provision of SETSS by the Agency at “enhanced market rates.” The rate was not specified in the agreement. The parent accepted financial responsibility to pay for the services at the Agency’s rate to the extent that district funding was not obtained. (Ex. D) The Agency’s administrator testified as to his understanding that pursuant to procedure parents were informed prior to signing contracts but he was not a participant in those discussions. (T58) The parent did not recall whether she was informed or not. (T154-156)
The Agreement also includes a parental affirmation that a reasonable effort to find a provider from the DOE had been made. (Ex. D-3) No parental efforts to identify a DOE provider were made in this matter. (T148, 157) Rather the parent informed the student’s school that a provider was necessary and was directed to the supervisor, an Agency employee, who identified the providers. (T149-150)
No documentary evidence as to the parent’s ability to pay the Agency and seek reimbursement was presented and with regard to that issue that parent said she “guessed” she would not be able to pay and would “need help.” (T162)
The administrator testified that the rate charged by the Agency for the services provided to this student was $195 per hour, that the rate was the same for over 90% of the students for whom SETSS was provided and the district had paid that rate to the Agency for SETSS provided to this student during pendency and that the district paid that rate pursuant to resolution agreements. (T59-60, 64-66) That testimony was not contested or rebutted. He further testified that it was his understanding, although he had no personal knowledge, that the same rate was charged by other similar agencies in the area. (T67, 82) That testimony was not contested or rebutted. The administrator testified that the student’s providers were paid $77 and $80 per hour and that various payroll taxes were paid by the agency which also had overhead costs which included interest required to be paid as a result fo delayed district payment, professional training, materials and general office overhead. (T69)
The supervisor, a certified special educator, testified that the student received services from two providers (both special educators), that the services were provided principally in the school but occasionally at home, that the curriculum was addressed in ways specific to this student in view of her needs, that the providers received supervision and support and that the student had progressed. (T85-88, Ex. E) That testimony was not contested or rebutted. The district characterized that testimony as credible. (Ex. II)
The administrator, recalled by the district as a rebuttal witness, acknowledged that at the same time he was a salaried employee of the Agency he had signed tuition contracts as a School Administrator and performed other tasks for a school which provided special education programs. He stated that this was unpaid and at the request of one of the Agency’s owners who was the only person he communicated with concerning his work for that school and estimated the time spent as about 2 hours a week for a short period of time. (Ex. 1; T126-135, 139-140)
B Findings and Conclusions
1) District Claim Based Upon Parent Failure to Request Services by June 1 The district asserts that pursuant to Education Law section 3602-c, the parent was required to request the services by June 1. The district failed to assert that claim during the impartial hearing. It was raised for the first time in the district’s closing brief. (Ex. I) I conclude in the circumstances of this case that the district is impermissibly seeking an expansion of the issues without the consent of the parent and decline to consider it. Further, I note with regard to this issue that district conduct, policies and/or practices may constitute a waiver of the request. Appeal No. 23-036.
2) District Payment for Unilaterally Selected Services
Under New York State Education Law Sec. 3602-c parents of students with disabilities have the right and ability to select a nonpublic school willing to enroll their child and places the burden of developing and providing appropriate special education programming upon the school district in which such school is located. 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. 20 U.S.C. Sec. 1412(a)(1)(A); Educ. Law Sec. 4402(2)(a), (b)(2). The school district must develop an appropriate program for the student in the environment in which the student will receive his/her education (i.e. the nonpublic school). Section 3602(2) explicitly states that a school district of location’s CSE “shall develop an [IESP] based upon the student’s individual needs in the same manner and in the same manner and with the same contents as an [IEP]. Educ. Law Sec. 3602-c(2)(b)(1). “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. Id.
Accordingly, I do not consider the district’s claim that this student is not entitled to a “FAPE” as I conclude with regard to the issues in this matter the same considerations are required.
The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2); and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and Prong 3 and the parent bears the burden of proof with regard to Prong 2 when tuition for a unilateral placement is sought. Educ. Law 4404[1][c] Prospective payment may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at 806, n.7 (N.D. N.Y. 1998)
In this matter the district has not disputed that the student’s need for the requested 9 hours of SETSS and that the district has not provided it. The parent presented evidence, which has not been contested or controverted, that these services were provided by qualified individuals, appropriately supervised, knowledgeable of the student’s specific needs, who appropriately individualized the services provided. The order in this matter will require satisfactory evidence of delivery of these services for entitlement to payment pursuant to this order.
However, the district challenges the rate and the claim of obligated parent payment if the parent does not prevail. With regard to the rate, the district has specified no rate it believes is appropriate in this matter, has acknowledged, it makes payments through resolution at the same rate and has not contested the testimony of the administrator that the district has paid the Agency that rate for this student’s pendency service and has paid the rate of $195 per hour for at least 90% of the students for whom it provided services. Further, it has not contested the claim that the Agency’s rate was the same in the prior school year. Parent claims concerning the i overhead costs on rates has not been contested by the district. Accordingly, I find no basis for denial of the requested rate. With regard to the validity of the contract I find no basis for a conclusion that it is unenforceable
In the instant matter, I find no basis for denial of parents Prong 2 claim even were I to conclude that the burden is on the parent.
Accordingly, I turn to equitable considerations in this matter (Prong 3).
The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement... and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14. See also C.L. v. Scarsdale UFSD, 744 F. 3d 826 (2d Cir. 2014) (“[Parents] pursuit of a private placement was not a basis for denying their tuition reimbursement, even assuming…that the parents never intended to keep [the student] in public school.”)
In this matter, there is no claim or evidence of cooperation with the district with regard to securing a provider from the district and the evidence supports a conclusion that no parent or parent’s agent efforts were made. However, the district has made no claim and provided no evidence as to its ability to identify a provider. Further, I note that a finding or concession of a FAPE deprivation necessarily tips the equity of private tuition reimbursement by the DOE in the Parents’ favor. N.R. v. NYC Dept. of Educ., 2009 WL 874061, *7 (March 31, 2009); see also C.F. v. NYC Dept. of Educ., 746 F.3d 68 (2nd Cir. 2014), at 78 (the substantive inadequacy of a proposed placement "automatically entitles the parents to reimbursement”) (quoting R.E. v. NYC Dept. of Educ., 694 F.3d 167 [2nd Cir. 2012], at 190)).
I do not find a basis for denial of district payment in the circumstances of this case.
However, I deny the request for direct payment and note that no documentary evidence of the parent’s inability to pay has been presented, there has been no detail provided with regard to the parent’s financial situation and the parent said merely that she guessed not when inquiry with regard to this matter was made.
ORDER
It is hereby ordered that:
The student is entitled to the following for the 2022-2023 SY:
SETSS, Direct Group, 9 periods per week at the rate of up to $195 per hour from a qualified provider of the parent’s choice. The district may require satisfactory evidence of delivery of those services.
Dated: July 3, 2023
_________/s/_____________
JUDITH SCHNEIDER, ESQ.
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.
EXHIBITS
District
1 Private School Enrollment Contract 8/25/21 6 pgs.
Parent
A Impartial Hearing Request, 9/9/2022 6 pgs.
B FOFD Case #214079 5/18/22 16 pgs.
C CSE IESP 06/15/2021 10 pgs.
D Parent Agreement 7/1/22 3 pgs.
E Progress Report 12/20/22 3pgs.
Impartial Hearing Officer
I District Closing Memorandum II Parent Closing Memorandum
Footnotes
[1] Provision of RSAs for OT is acceptable to the parent and that is not an issue in this proceeding. (T43)
[2] The district declined to specify an acceptable rate but stated that the district had agreed to pay rates from $150-195 per hour. (T47)