New York City Department of Education, Impartial Hearing Decision

CASE NUMBER:587480 – NYC:238765

FINDINGS OF FACT AND DECISION

Case Number: 238765

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: REDACTED (“Parents”)

Request Date/Date File: 9/19/2022

Impartial Hearing Officer: Joy A. Thompson, Esq.

Date(s) of Hearing: 1/18/2023

Compliance Date: 3/3/2023

Date of Decision: 12/9/2023

Date of Distribution: 12/9/2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON 1/18/2023

For the Student:

Name	Title
REDACTED	Parents Counsel

For the Department of Education:

Name	Title
REDACTED	District Representative

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on the Parents’ Due Process Complaint (“DPC") filed on 9/19/2022 (Exhibit P-A)^[1]. I was appointed to serve as Impartial Hearing Officer (“IHO”) on 12/9/2022. A pre-hearing conference was held on 12/20/2022. A pendency hearing/status conference was held on 1/5/2023, and a Pendency Order was issued on 1/30/2023 (Ex. IHO-I). A hearing on the merits was held on 1/18/2023.

At the hearing, the Parents were represented by REDACTED (“Parents Counsel”), and the District was represented by REDACTED (“District Representative”). The Parent offered Exhibits A-K, which were entered into evidence. (See Appendix B.) The District Representative declined to submit any evidence or witness testimony and waived making opening and closing statements (Transcript, 10).

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “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 § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

The Student is REDACTED-year-old child at REDACTED (“Private School”) and is classified by the District as a student with a “Speech or Language Impairment.” The Parents allege that the Student’s Individualized Educational Service Plan (“IESP”) dated 6/13/2022 (the “6/13/2022 IESP”) is substantively insufficient to meet the Student’s needs. They contend that the recommended three (3) undefined periods, per week, of Special Education Teacher Support Services (“SETSS”), in a group of an unspecified size is not sufficient for the Student to make academic progress and will not assist the Student in meeting the Student’s educational goals. Accordingly, the Parents are seeking the recommendation, implementation of, and funding for five (5) hourlong periods per week of SETSS provided by REDACTED (“Service Provider”) in a 1:1 setting at an enhanced rate; and the issuance of Related Service Authorizations (“RSAs”) or another funding mechanism for Speech-Language Therapy, twice a week, for 30 minutes, individually, and once a week, in a group, in Yiddish, and Occupational Therapy, twice a week, for 30 minutes, individually.^[2]

FINDINGS OF FACT

As the District declined to present a case in this matter, I have accepted the allegations in the record that are corroborated by credible evidence.

It is uncontested that the Student and Parents reside in New York City and the Student attends the Private School during the 2022-2023 school year (Ex. P-K-1). Furthermore, it is uncontested that the Private School is located within the geographic boundaries of the District (id.). The Parents challenged the recommendations of the 6/13/2022 IESP on the grounds that the Student was “still falling behind in school” and needed more hours of services and 1:1 instruction to make progress (Ex. P-K-1). Additionally, despite the Parents’ efforts, the Parents could not find a service provider from the list provided by the District (Exs. P-D and P-K-1). Accordingly, the Parents contracted with the Service Provider to provide the three (3) hours of SETTS and Speech-Language Therapy (Exs. P-C, P-G, and P-K).

REDACTED, the Service Provider’s Educational Director (“Educational Director”), testified in a signed and notarized affidavit that the Service Provider is qualified to provide SETSS services to students with disabilities and has experience working with such students (Exs P-F and P-J). The Service Provider charges $197 per hour of SETSS. The Educational Director stated that the Service Provider’s rates are commensurate with the general market rates for such services in the greater New York City area (Ex. P-J-3).

The Educational Director is also familiar with the Student and stated that the Student “requires additional support beyond the 3 hours, per week, of 1:1 SETSS that he is being provided, as he is still significantly delayed in his academics, and his ability to learn is negatively impacted by his significant social/emotional and attentional delays. He has a hard time focusing on a task and is easily distracted. He requires the individual instruction so that he can maintain focus, be redirected, and work using specialized teaching methods that are based on his academic levels and that utilizes his strengths” (Ex. P-J-3). The Educational Director went on to recommend that “an additional four hours, per week, of 1:1 SETSS (seven hours total per week) would be much more effective in addressing [the Student’s] needs” (id.). In a signed and notarized affidavit, the Student’s REDACTED, REDACTED (“Parent”), testified that the Student requires an “additional 2 hours of SETSS to receive an educational benefit,” for a total of five (5) hours per week (P-K-2).

The Parent and Service Provider agree that while the Student is showing signs of progress under the program provided by the Service Provider (Exs. P-J-3 and P-K-2), the Student “is still falling behind in many areas of need” (Ex. P-K-2). The Student’s Progress Report, completed by REDACTED, the Student’s special education teacher (“Special Education Teacher”),” details the Student’s delays and difficulty in reading, comprehension, math, social, and language skills (Ex. P-E). The Progress Report states: “Currently, 3 hours are insufficient to meet [the Student’s] academic delays” (Ex. P-E-1).

CONCLUSIONS OF LAW AND ANALYSIS

FAPE

Except for in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing (Educ. Law § 4404[1][c]; see R.E. v. NYC Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]; and C.F. v. NYC Dep’t of Educ., 746 F.3d 68, 76 [2d Cir. 2014]).

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”) (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 (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]).

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. § 1412[a][l][A]; and 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 CFR 300.137[a]). Under New York 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’s Committee on Special Education (“CSE”) must review the request and “develop an individualized education service program [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]).

Here, it is uncontested that the Student is entitled to services pursuant to the 6/13/2022 IESP (Tr. 10). The Parent credibly testified via affidavit that the District failed to implement the SETSS recommended in the 6/13/2022 IEP (P-K-1). The District, which bears the burden of proof, has failed to introduce any evidence to the contrary.

The District cannot be absolved of its statutory obligation to implement services for the Student simply by being inactive in implementing the mandated services. The District had an obligation to provide services to the Student in conformity with the 6/13/2022 IESP (Educ. Law § 3602-c[2][a], [b][1]). In failing to do so, the District 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 (Educ. Law § 3602-c[2][b][1]).

Compensatory Relief

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). See also Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993), citing Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 374 (1985) (“‘[E]quitable considerations are relevant in fashioning relief,’ and the court enjoys ‘broad discretion’ in doing so”). 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).

Here, the District had the opportunity to set forth its position regarding the appropriate compensatory education remedy. However, the District failed to introduce any evidence regarding appropriate relief, and, in essence, consented to an order that the Student was entitled to five (5) hourlong periods per week of SETSS provided by the Service Provider in a 1:1 setting at an enhanced rate; and the issuance of RSAs or another funding mechanism for Speech-Language Therapy, twice a week, for 30 minutes, individually, and once a week, in a group, in Yiddish, and Occupational Therapy, twice a week, for 30 minutes, individually. Further, there is no evidence or claim made by the District asserting or suggesting that the Parents failed to cooperate with the District or interfered in any manner with the District’s obligation to provide the Student with a FAPE on an equitable basis for the 2022-2023 school year. The Parent testified credibly that although the District recommended mandated IESP services, the Parents were not able to identify any providers willing to accept the District’s rate (Exs. P-D and P-K-1). So, the Parents signed a contract with the Service Provider to provide the mandated services to the Student (Exs. P-G and P-K-1).

Credible and uncontested evidence also demonstrates that the Service Provider’s program is appropriate for the Student, in that it is research-based, comprehensive, and individualized, and it provides the Student with the special education instruction the Student needs to make appropriate progress (Exs. P-D, P-F, and P-J). According to the Educational Director’s uncontroverted testimony, the Student has demonstrated progress since receiving services from the Service Provider. However, the weight of the evidence in the record supports the recommendation that the Student be provided with additional hours of services in order for the Student to meet the Student’s educational goals as detailed in the Student’s 6/13/2022 IESP. The evidence in the record also supports the requests for $197 per hour of SETSS, with the Educational Director uncontroverted testimony that the rates were within the general market rate for such services provided by other agencies in the greater New York City area (Ex. P-J-3). Accordingly, the weight of the evidence supports a finding that $197 per hour of SETSS is a reasonable and appropriate rate for the services provided to the Student during the 2022-2023 school year.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED THAT:

1. For the 2022-2023 school year, the District shall provide and/or directly fund via Related Services Authorizations or some other funding mechanism the following services by a provider of the Parents’ choosing at a rate of up to $197 per hour:
   1. Special Education Teacher Support Services (“SETSS”), for five (5) hourlong periods, per week, in a 1:1 setting;
   2. Speech-Language Therapy twice a week, for 30 minutes, individually, and once a week, in a group, in Yiddish; and
   3. Occupational Therapy twice a week, for 30 minutes, individually.
2. The District shall reimburse the Parents for the cost of the services described above within thirty (30) days of submission of invoices to the District for services rendered; and
3. The bank of compensatory services set out in #1 of this Order shall not expire until the expiration of two (2) years from the date of this Order.

SO ORDERED.

Dated: 12/9/2023

Joy A. Thompson

Joy A. Thompson, 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.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

DISTRICT EVIDENCE

Exhibit	Title	Date	Pages
	None

PARENT EVIDENCE

Exhibit	Title	Date	Pages
A	Impartial Hearing Request	9/15/2022	3
B	Individualized Education Services Program (IESP)	6/13/2022	11
C	REDACTED Affidavit of Services	12/27/2022	1
D	Provider Outreach Log- SETSS	9/20/2022	3
E	Progress Report	11/23/2022	5
F	SETSS Provider Certification	9/1/2001	1
G	REDACTED Enrollment Contract	9/2/2022	3
H	Speech/Language Evaluation	6/14/2021	5
I	Occupational Therapy Evaluation	5/26/2021	5
J	Affidavit of Testimony of REDACTED	1/10/2023	4
K	Affidavit of Testimony of REDACTED	1/12/2023	2

IHO EXHIBITS

Exhibit	Title	Date	Pages
I	Order of Pendency	1/30/2023	10
II	E-mail from Parents Counsel	2/13/2023	3

[1] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

[2] The Parents Counsel confirmed that the Parents are no longer seeking an Independent Educational Evaluation funded by the District, as stated in the DPC (Tr. 14; Exhibit IHO-II).