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FINDINGS OF FACT AND DECISION
Case Number: [239344]
Student’s Name: [REDACTED]
School District: [REDACTED]
Impartial Hearing Officer: Richard J. Zeitler, Jr.
Date of Filing: 09/23/2022
Hearing Requested by: Parent
Date(s) of Hearing: [REDACTED]
Record Close Date: 02/24/2023
Date of Decision: 03/31/2023
Names and Titles of Persons Who Appeared [REDACTED]
For the Student
[REDACTED], Esq.
[REDACTED], Special Education Director, SETSS Provider Agency
[REDACTED], Parent
For the New York City Department of Education
[REDACTED], Consultant Impartial Hearing Representative
Background
On September 23, 2022, the Parent, by and through the Parent’s Attorney, filed a due process complaint (DPC) against the New York City Department of Education (DOE or Department),[1] on behalf of the Student, pursuant to the Individuals with Disabilities Education Act (IDEA or the Act),[2] and the New York State Education Law.[3] The DPC asserts that the Student has been denied a free and appropriate public education (FAPE) and equitable services in that, for the 2022-2023 school year, the Department has failed to provide the Student with five periods per week of special education teacher support services (SETSS).[4] The DPC further alleges that the Department has not implemented the recommendations of the last Individualized Education Services Program (IESP), dated June 1, 2022, and that the Parent attempted but was unable to find a qualified SETSS provider that could provide the services mandated in the IESP at the standard rate paid by the DOE.[5] The Parent requests that the Department fund the cost of SETSS for the 2022-2023 school year at an enhanced rate.[6] The Parent also requests that I issue an order regarding the issue of pendency placement and services.[7]
Procedural History
I was appointed as the impartial hearing officer (IHO) over this matter on December 21, 2022. On January 11, 2023, a settlement conference was held, followed by a status conference on January 18, 2023. On February 17, 2023, I issued an Order of Extension.[8] The merits hearing was held before me on [REDACTED], wherein all the parties’ exhibits were admitted into evidence.[9] The Department presented no witnesses, while the Parent offered the testimony of the Parent and of the SETSS Provider Agency’s Special Education Director.[10] This decision now follows.
I. Pendency The issue of pendency is straightforward in this matter, as there is no dispute as to the placement and services.
A child is entitled to remain in his or her placement at public expense during the pendency of a dispute over an individualized education program (IEP) or individualized education service plan (IESP), regardless of the merits of the dispute or the outcome of the relevant proceedings.[11] The “pendency” provision of the IDEA requires a school district “to continue funding whatever educational placement was last agreed upon for the child until the relevant administrative and judicial proceedings are complete.”[12] The New York State Education Law includes a similar provision.[13]
The pendency inquiry focuses on identifying what specific services and placement are required to maintain the student’s "then current educational placement” because the district must continue to finance those services and placement until the dispute is resolved.[14] The phrase “then current educational placement” is not defined in the IDEA or New York statute, but it has been found to mean “the last agreed upon placement at the moment when the due process proceeding is commenced,”[15] including: “(1) 'the placement described in the child's most recently implemented IEP'; (2) 'the operative placement actually functioning at the time when the stay put provision of the IDEA was invoked'; or (3) 'the placement at the time of the previously implemented IEP.'"[16]
Here, the Parent alleged that the June 1, 2022, IESP described the services at issue in the DPC, namely 5 periods of SETSS per week, with direct, group service, in Yiddish, during a 10-month school year.[17] The Department did not object or otherwise dispute the pendency request. I therefore find that the June 1, 2022, IESP describes the Student’s “then current educational placement”[18] for purposes of pendency which, accordingly, will be ordered.
II. Findings of Fact and Decision
Findings of Fact
At the hearing, the following was not in dispute. The Student is seven years old and attends the Private School for the 2022-2023 school year.[19] The Student was classified by the Committee on Special Education as having a Learning Disability,[20] and in the IESP in evidence, the CSE recommended “Special Education Teacher Support Services (SETSS)... Direct Service... Group Service... Language of Service: Yiddish... 5 [periods] per week[.]”[21]
Parent Witnesses
SETSS Provider Agency Special Education Director The Special Education Director (Director) of the SETSS Provider Agency (Agency) testified as follows. As the founder and Director of the SETSS Provider Agency, it is her role to evaluate students, design a remediation and modification program for them, supervise Agency staff, maintain contact with parents and teachers, and track the progress of students.[22] She also provides materials and curriculum guidance, and visits the schools where the Agency’s services are administered “and collaborates with the providers, teachers and school personnel to address any needs and concerns.”[23] For the 2022-2023 school year, the Student receives 5 hours per week of SETSS from the Agency through two of its providers, SETSS Instructor 1 and SETSS Instructor 2.[24] The “[s]ervices are typically provided outside of the classroom.”[25] The providing instructors are “certified by NYS to teach students with disabilities” and “are trained and experienced to teach literacy and comprehension to school-aged children.”[26] The instructors “provide... individualized sessions that include a great deal of specialized instruction.”[27] The Director, who has certifications in special education, general education, and a bilingual education, relies upon her experience as a second grade teacher to directly supervise the work of the instructors.[28] With the SETSS in place, the Student “has already shown signs of progress” but the Student’s “academic and social delays warrant the need for continued services.”[29] The Agency charges $185.00 for one-to-one (1:1) special education services.[30] In addition to her work and the qualifications of the providing instructors, the “rate takes into account that our providers are well-trained, and they receive continued guidance and supervision” as well as “formal reading evaluations for all students.”[31]
On cross-examination and upon further questioning, the Director testified as follows. The individual instructors who work with the Student are independent contractors, whom the Agency pays $80 per hour.[32] With respect to the Agency’s costs, it includes “training of the providers, and buying... books and incentives and materials for learning” as well as “the financial part of it” including “pay[ing] for the providers” and the Director’s time “spen[t] with the child, with the parent, with the providers, and... guiding everybody with th[e Student’s] case.”[33] Some of the instructor’s mandatory training is performed outside the Agency, such as the Orton-Gillingham reading method, and some is performed by the Director.[34]
Parent The Parent testified as follows. The Student struggles in many academic and social-emotional areas, and without the assistance of the SETSS provider, “she would not be able to maintain her mainstream school placement.[35] Pursuant to the June 1, 2022 IESP, the Student was recommended SETSS but despite her best efforts, the Parent “was unable to locate a SETSS provider” at the standard DOE rate, even after “ma[king] many phone calls to independent SETSS providers on the list that is published on the DOE website[.]”[36] She submitted a TDN to DOE on September 23, 2022, and entered into a contract with the SETSS Provider Agency, “which obligates [her] to pay for [the SETSS] in the event that the DOE does not pay the Agency for services provided.”[37] It would “pose extreme financial hardship” if the Parent had to pay the Agency for services, and she would be unable to “without financial support from friends and family.”[38]
On cross-examination and upon further questioning, the Parent testified as follows. She has not yet been billed for any of the Agency’s services.[39] She understands that she would be paying for the services if the DOE was not ordered to pay for them, and she accepts that it would “be a financial burden” but she “felt that it was really necessary for [the Student] to get these services.”[40]
Closing Arguments
Department’s Summation In closing, the Department Attorney contended the following.[41] For the first time, the Department asserted that the matter should be dismissed, and the Student should be denied payment for any services, pursuant to New York State Education Law § 3602-c, because the Student’s parents did not file a request for services by June 1, 2022, described as the statutory deadline for parents of a private school student to notify DOE of the expectation that the district pay for services the following school year.[42] If the matter were not dismissed, the Department should not be ordered to pay $185 per hour for the requested services, because the Parent did not present evidence to support that rate. The instructor is paid only $80 per hour and that is the only amount that the Department should be obligated to pay.
Parent’s Summation The Parent Attorney argued as follows.[43] The Department has the burden to child find, to create meaningful programs for students with disabilities, and to see to it that those programs are implemented. The Department failed to meet its obligations, to implement services, even pursuant to pendency, and even to respond to the DPC or the TDN. The decision should order “market rate” because the DOE is in a position to know and provide for the rate typically paid for these services. The first-of-June argument must be rejected because (1) the Department did not even convene an IEP meeting until June 1, 2022, meaning the parents did not know what the recommended services would be, in order to agree or disagree with those services; (2) it is also subject to implied waiver, according to the SRO,[44] upon the Department’s conduct, such as here, where the Department created the IESP on the first-of-June; and (3) the Department also waived its entitlement to notice by the first of June when it failed to comply with its own standard operational procedure manual, which specifies that the Department must first send a notice to parents of nonpublic school (NPS) students by April 1, 2022, requesting them to notify the Department of intended services requests by June 1. The Department, therefore, should be ordered to provide and fund the services.
Credibility With respect to credibility, I find as follows. The exhibits and witness testimony were detailed, comprehensive, and consistent. I found no reason to doubt the contents of the exhibits or the veracity of the witnesses. Moreover, neither party offered rebuttal evidence. I therefore deem all the evidence credible, and the weight afforded each part of it will be reflected in the analysis.
Legal Framework The IDEA and the New York Education Law require school districts to offer a FAPE and equitable services, respectively, to each child with a disability residing in their district who requires special education programs or services.[45] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.[46] When the program is developed in New York City, a FAPE requires the DOE to both comply with the procedural requirements set forth in the IDEA, and recommend a placement and a program that are reasonably calculated to enable the student to receive educational benefits.[47]
In general, the determination of the sufficiency of a program should be determined on substantive FAPE grounds,[48] that is, whether the school district “provid[ed] personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”[49] School districts must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs.[50]
The IDEA regulations do not confer an individual entitlement to special education or related services for students who are enrolled by their parents in nonpublic schools.[51] Under the New York State Education Law, parents who have privately enrolled their child in a nonpublic school may nonetheless seek educational "services" for their child with a disability by filing a request in the district where the nonpublic school is located, “before the first day of June preceding the school year for which the request is made.”[52] 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]."[53] This is known as “dual enrollment,”[54] and student receive services on an “equitable basis” as compared to students who receive a FAPE in public schools and other private schools.[55] It is the rate for these equitable services that must be determined.
If a dispute arises between a parent and a school district over the provision of services under an IEP or IESP, “[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil” via an impartial due process hearing, as called for by the IDEA and the Education Law.[56] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act,”[57] and that damage awards are not available under the IDEA.[58] An IHO “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[59] I am mindful that, regardless of any deficiencies in the Parent’s justification for the rate paid to the Provider, the Department is nevertheless obligated to provide and pay for SETSS, as holding otherwise would countenance the denial of FAPE and equitable services under dual enrollment.
Analysis
Under the IDEA and the NY State Education Law, school districts have the burden of proof that a FAPE and that equitable services, respectively, have been provided to the student, except that where reimbursement upon unilateral placement is sought, the parent has the burden of proof with respect to the appropriateness of the parent’s chosen educational placement.[60] As described more fully below, I find that equitable services cases reflect elements of both compensatory education analysis and reimbursement analysis.[61] I will, therefore, first 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 and, if not, how to best calculate a remedy upon the evidence submitted in support of the rate charged for those services.
The IESP in evidence recommended 5 periods of SETSS per week, with direct, group service, in Yiddish, during a 10-month school year.[62] The Department offered no evidence to demonstrate that it assigned or otherwise offered the Parent a SETSS provider for the 2022-2023 school year, instead leaving it to the Parent to find a provider.
The Department is responsible for implementing the programs it recommends in IEPs and IESPs, and it has been held that the Department may not effectively compel the Parent to resort to self-help in obtaining a provider.[63] Such a “de facto delegation from the district to the parent of the obligation to find a... provider... at an acceptable rate is manifestly unreasonable,”[64] and a violation of State law.[65] The DOE thus failed to implement the IESP, which constitutes a denial of FAPE under the circumstances of this case, as well as a failure to show that it provided the Student with equitable services for the 2022-2023 school year.[66]
As to the remedy, however, the inquiry has not ended. Although the Department chose to not present its own evidence to establish a reasonable rate for the services at issue, “an outright default judgment awarding any and all of the relief requested without question is a disfavored outcome.”[67] This would be the case “even where the district’s conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious.”[68] I still must determine what is a fair and equitable remedy based upon the record of this case.
The State Review Office (SRO) has held that when the parent has not already paid the 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.[69] Because the Parent had to find the provider on her own and because “caselaw supports reimbursement and direct remedies in a unilateral placement case,” the SRO has determined that the question of whether a 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.”[70] Thus, in a case such as this, where the central issue is whether a third-party provider selected by a parent should be remunerated with an enhanced rate over what the Department normally pays, the Parent’s evidence must be scrutinized, consistent with my obligation and equitable authority to ensure that the remedy “be appropriate in light of the purpose of the Act.”[71] The evidence therefore must show that the SETSS Agency’s rate is reasonable and appropriate under the circumstances.
The factors that have been found relevant to the reasonableness of a provider’s services rate include: the Provider’s explanation of the rate, including its costs and the qualifications of its instructors[72]; the value that specialized certification, such as a bilingual extension, adds to instruction[73]; the Parent’s efforts to locate a DOE-approved provider from a list provided by the Department to the Parent[74]; and whether the Parent directly paid the Provider or is contractually obligated to pay the Provider in the event the Department is not ordered to fund the services at the requested rate.[75] I will therefore determine, in light of these factors, whether the requested rate is unreasonable.[76] Finally I will consider when the Parent notified the Department of the enhanced rate claim, because this establishes the first date the DOE would have had an opportunity to modify its offered rate for SETSS in light of the Parent’s claims.[77]
Here, the Parent offered evidence that the Agency charges $185.00 for SETSS.[78] Calculation of the rate includes the hiring and training of instructors, as well as their “continued guidance and supervision” and “formal reading evaluations for all students.”[79] The Agency’s Special Education Director also evaluates students, designs their programs, supervises staff, engages with parents and teachers, tracks the progress of students, as well as “buying... books and incentives and materials for learning” and “spend[ing] time with the child, with the parent, [and] with the providers[.]”[80] All of this tends to support the rate.
The DOE argued that it should not be responsible for paying the overhead costs of the Agency, only the $80 per hour to the specific instructors who worked with the Student. The Department’s representative offered no authority to support this position but, more importantly, I find that endorsing it would frustrate a process that brings together students with disabilities and special education instructors under a business model that only exists because the Department has relinquished its legal obligation to provide for such students. This would reward the Department for its failures while simultaneously exacerbating the problem it created. I cannot support such an outcome.
The only factor affecting the Agency’s costs that works against the rate is the fact that the Agency provides it services to students 1:1 despite the IESP recommending group SETSS.[81] The Parent did not assert that the CSE’s group service recommendation constituted a denial of FAPE or equitable services, or otherwise demonstrate why it was necessary to provide SETSS as an individual service. There is thus no basis to consider the 1:1 aspect of the instruction as part of the Department’s responsibility towards the rate calculation, and my award will reflect this.
The next factor is the contract. The Parent signed a with the Agency on August 31, 2022.[82] The contract includes as a term the Parent’s understanding “that Parent is liable to pay the Agency the full amount for all services delivered by the Agency in the event that Parent is unable to secure funding from the DOE or elsewhere.”[83] I find that this sufficiently imposed liability for the services on the Parent.[84] I note that while the contract was signed before the beginning of the school year, the DPC and TDN were not filed with the Department until September 23, 2022.[85] Thus, while the contract supports the rate, I will not hold the Department to it until the Department was first aware that the Parent would be seeking an enhanced rate, which here is the DPC date.[86]
The final factor I will weigh is the qualifications of those who provided the Student with instruction. The Agency utilizes the services of two SETSS providers for the 2022-2023 school year.[87] SETSS Instructor 1 is a NYS certified teacher with a certificate in “Students with Disabilities (Birth – Grade 2), Internship Certificate[,]”[88] while SETSS Instructor 2 has three certificates, including “Students with Disabilities (Birth – Grade 2)[.]”[89] The Student is currently in 2nd grade, meaning that both instructors are certified in students with disabilities for the Student’s grade level.[90] I note, however, that there is no evidence that either instructor is qualified with the certificate’s bilingual extension, and the Student’s SETSS was recommended to be provided in Yiddish.[91] While a bilingual extension is not necessary in order to teach in a language other than English, having the certification is still the best indicator of the “reasonable qualifications that are specifically related to the student’s deficits[.]”[92]
Upon my review of the above factors, I find that the contract, the certificates for special education at the Student’s grade level for both SETSS Instructors, and most of the Agency’s explanation for its SETSS rate, all support what is being charged for the 2022-2023 school year, while the addition of 1:1 service not called for in the IESP, and the lack of a bilingual extension for both instructors, disfavor granting the entirety of the rate being requested. I am also taking into consideration the Director’s credited testimony that the Student is benefitting from the Agency’s services and has shown signs of progress.[93] I therefore conclude that the above deficiencies should not decrease the rate by more than 20%, resulting in a rate of $148.00 per hour.
Department’s First of June Position
As already mentioned, the Department’s Representative asserted, for the first time during summations, that the matter should be dismissed because the Parent did not notify the DOE of an intent to seek services by the June first immediately preceding the school year in question, per Educ. Law § 3602-c(2). According to the Department, this precludes any award in this case. The Parent’s attorney disagreed, arguing that the June 1 notice requirement is a timing provision, subject to waiver. I am not persuaded by the Department’s position, for the following reasons.
Affirmative Defense
As a threshold matter, I find the District’s argument untimely and unproven. Although not couched as such, the DOE’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 effect of denying the Parent’s claims.[94] As the party invoking the defense, the Department was obligated to do more than simply make the charge at closing. It should have placed the Parent on notice of the defense before the hearing, and it was obligated to offer evidence at the hearing to establish the defense’s elements.[95] During the hearing, the Department’s Attorney offered no witnesses, affidavits, or exhibits to demonstrate how June 1 notices are received from parents, whether a search was made for a specific notice from the Parent here, or whether any notice had been received. In failing to do so, the affirmative defense was not proven, and the parent had no burden to refute an unsupported allegation. I therefore reject the argument for this reason alone.
Exception to June 1 Statutory Provision
Even if the DOE properly asserted and proved the affirmative defense, I would still find that, as a matter of law, the June 1 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.)
The emphasized language above highlights three important clauses. First, it is noteworthy that (b)(1) begins with “for the purpose of obtaining education for students with disabilities....” which places focus on students and their parents, and what they receive, rather than the district and what it gives. Second, the June 1 notice applies to three categories of students, specifying and separating requests for services for gifted students, career education students, and students with disabilities.[96] Third – and 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,[97] 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 Department’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 1 preceding the school year at issue precludes any recovery. If a plain reading were applied to only the June 1 clause, it could be argued that the June 1 notice is an absolute and unambiguous obligation, consistent with the doctrine that legal text must be given effect, to the extent possible, as it was written by the legislature.[98] The text, however, offers more than one plain reading. Nothing in § 3602-c(2) explicitly states that the request must be made every preceding June 1. 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. The “first of June preceding” clause therefore can be applied as a precursor to the subsequent sentences (regarding the dates by which notice is to be given for the first year that a student is identified as having a disability), and thus a general description of the obligation to let a district know about a NPS disabled student’s status when the district had no prior knowledge of that student, regardless of whether it is the year that the student was first identified.[99]
Regardless of which reading is applied, the June 1 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 pari materia and must, regardless of any ambiguity, be harmonized. Here, a relationship between the two provisions is evident because the “services” that parents must request by June 1 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 1 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.
If students with disabilities receiving a FAPE under the IDEA faced a similar date-certain mandate as in § 3602-c, there would be no discord between the “June 1” and “equitable basis” clauses. This, of course, is not the case. 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,[100] not the automatic and complete bar to any recovery, as indicated by the Department’s reading of the June 1 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 1 notice would no longer be receiving 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 1 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. I will not read § 3602-c to exalt form over substance in such a manner, and I conclude that the Department’s preferred reading of § 3602-c raises an ambiguity between the two clauses at issue that must be resolved.
It is understood that “when... statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used.”[101] 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.”[102] 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”[103] and we must “avoid ascribing a meaning to [a] term that is inconsistent with the statute’s underlying purpose[.]”[104]
Analyzing the purpose of each of the two statutory clauses is instructive in determining how their relative application might be reconciled. Education Law § 3602-c was originally enacted in 1963, and its first major amendment, in 1993, pertained to the terminology of “occupational” and “vocational” education and not to students with disabilities.[105] When the law was amended again in 2005, the legislature declared that when “Congress... amend[ed] the Individuals with Disabilities in Education Act (IDEA) relating to the provision of special education programs and services, effective June 1, 2005[,]” the “United States Department of Education... required states to provide assurance in their application for funding... that the state and its local educational agencies will comply with the IDEA.”[106] It was deemed “necessary to enact... temporary transitional legislation [§ 3602-c]... to assure that New York will be in compliance with the provisions of the amended IDEA in the 2005-2006 school year.”[107] 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[.]”[108] The “bill [thus] enable[d] non-public school students to join with our public school students in sharing the benefits from such public programs.”[109]
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.[110] 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.”[111] These “services” include “education for students with disabilities,”[112] the definition of which incorporates Educ. Law § 4401,[113] 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.”[114] 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,[115] and the second being invocation of New York’s IDEA hearing procedures found at § 4404.[116] 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 1 constraint.
A further indication that the “equitable basis” owed to NPS students is similar to what students receive under a FAPE comes from the SRO, which has supported a reading of § 3602-c that recognizes greater parity between dual enrollment services and IDEA services. Noting that “State law requir[es] that core instruction [be] provided by a school district [that is] 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[,]”[117] the SRO has found, with respect to New York City, “that the district has engaged in an illegal practice by attempting to contract out for the delivery of instruction by a special education teacher and has encouraged the parents to participate in that process by creating a list of independent SETSS teachers that are not employees of the district.”[118] NPS students still require services under this scheme, so the SRO has determined that even though the DOE should not “deliver special education services... in an unauthorized manner... they can be made to pay for a privately obtained parental placement [provider], a process that is essentially the same as the federal process under IDEA.”[119]
Viewing the “equitable basis” clause through a wider lens does not mean that the June 1 provision has no scope. Indeed, “[i]n the construction of statutes, each word or phrase in the enactment must be given its appropriate meaning.”[120] The requirement that parents of NPS students provide notice carries at least two important purposes: avoiding unfair surprise and resulting prejudice to the Department, and ensuring that the DOE has a fair grasp of the NPS population vis-à-vis its obligation 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.[121] 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.”[122] School districts’ obligations listed in the memorandum include:
• “The school district of location must consult with nonpublic school representatives... during the design and development of special education and related services... and 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”[123];
• “The school district of location is responsible for child find” which “is the practice method the public school district will develop and implement to identify, locate and ensure the evaluation... of students with disabilities who are parentally placed in nonpublic schools”[124];
• “[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 data needed to determine that total number of eligible students... used in calculating the proportionate share of funds that must be used on services”[125]; 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.”[126]
The above action items describe touchpoints that school districts must continually have with nonpublic schools and with the parents or guardians of students with disabilities who attend those schools. The Department retains child find, evaluation, and annual IESP review obligations for each NPS student, meaning that once an IESP is in place, the Department is under a perennial duty, every year, to confirm each student’s status and needs for the following year. It is hard to imagine under these circumstances how the DOE would be surprised or prejudiced about the need for a NPS student’s services without a June 1 notice, at least after the initial year the student was brought to the DOE’s attention. The purpose of notice at that point has diminished. If the Department fails to confirm a student’s status because it did not communicate with the NPS or because it failed to identify, evaluate, or conduct a mandatory annual IESP review of a student with a disability at a NPS, the Department should not thereafter be rewarded for its dereliction by claiming a lack of notice with respect to the students for whom it should have been aware.
The second DOE document is the Standard Operating Procedures Manual, which specifies that a “CSE sends [a] Request for Special Education Services form to parents of students with IESPs by April 1” before parents are to send a notice in “writing to the CSE by June 1....”[127] This reflects an expectation of the Department that parents will have prior notice of the June 1 obligation. I will not hold that an operating manual supersedes a statutory notice requirement; I do, however, find this a strong indication that the DOE itself does not intend the law to deny services to the students of parents or guardians who had no knowledge of the June 1 provision. I note that the Department offered nothing at the hearing to demonstrate that an April 1 notification had been sent to the Parent.
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,[128] the court considered another provision within the same law, § 3602-c(9), which states that:
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.[129]
The school district in that 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.”[130] The Court disagreed, finding that “this is not a statute that can be read without consideration of its history and context[.]”[131] 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.”[132] 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.”[133] Then, “[s]econd, 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.”[134] Finally, “[t]hird, to this end, the authorities have a wide choice of programs and services, including home instruction, itinerant teachers, and counseling and psychological services.”[135] Upon these factors, the Court endorsed a most generous reading of the entirety of § 3602-c, 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.”[136] 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 regular classes of the public school”).
The interpretation of § 3602-c(2) I adopt here follows the same reasoning as applied in Wieder. The ambiguity that arises from the tension between the June 1 clause and the equitable basis clause 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[.]”[137] The effect of the June 1 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 has already made recommendations) will receive those services similarly to public school students who are entitled to a FAPE.[138] Applying § 3602-c(2) in this manner 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[,]”[139] as well as with 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.”[140]
If the Department’s approach were to control, I would have to ignore the interrelationship between the two clauses, which, in my opinion, would perpetuate a system that hampers 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.”[141] The June 1 notice requirement therefore does not extend to students where the Department had already learned of or agreed to provide for a student’s service needs in previous years, or where the parents or guardians requested services in a previous year and the Department was under a continuing obligation to reevaluate the student and annually review their IESP, or at the very least, for students where the DOE 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 it 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.”[142] I note that nothing in this holding would prohibit me, in the appropriate case, from equitably reducing an award, e.g., when a parent or guardian of a NPS student received and ignored an April 1 notice from the Department, or when a parent or guardian otherwise interfered with the DOE’s ability or efforts to learn of or track a NPS student’s status.
Applying the above to the case before me, I find that the Parent’s claim should not be denied. The Department developed an IESP for the Student, complete with recommended services, meaning that it had past awareness of the Student and the Student’s need for services. Nothing was offered, however, to explain how it conducted an annual review, or why it thereafter failed to implement those services. Thus, even if it had been proven by the DOE that the Parent failed to submit a written request for services by the June 1 preceding the school year in question, there is no dispute that the Department knew of the Student, offered recommendations for services, and then did not provide those services, either directly or through its own contract with at least one provider. On this record, I find, for the reasons stated above, that the June 1 provision did not apply to this Student, for the services at issue in this case.
Waiver The third reason the Department’s notice argument must fail is because the IESP it developed, per its obligations, had the effect of implicitly waiving any notification by [DATE] in this case. The SRO has considered the effect of the doctrine of implied waiver on the June 1 requirement in § 3602-c(2), as that doctrine was relied upon in the Second Circuit decision of N.L.R.B. v. New York Tele. Co.,[143] which “held that a waiver will not be implied unless ‘it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them.’”[144] The SRO found that, even when the parties “do not dispute that the parents failed to request special education services by June 1[,]” it was still the case that “the district prepared an IESP for the student and began providing [the] services... to the student at the nonpublic school. Thus, by making the conscious choice to proceed after the June 1 deadline by providing services... ‘for whatever reason,’ the district’s actions constituted an implied waiver.”[145] The above describes two scenarios where waiver is implied; first, in preparing an IESP after June 1, and second, in implementing services described in the IESP after June 1. I read this to mean that the implied waiver includes the entirety of the period for which those services are to be provided. Thus, if an IESP is developed less than a year before the June 1 in question, and those services are to be implemented, as here, for one year, the DOE has made “the conscious choice to proceed after the June 1 deadline... ‘for whatever reason’” and the notice requirement has been waived.[146]
Here, the most recent IESP includes: the “Date of IESP Meeting: 06/01/2022” with a “Projected Date IESP Is to Be Implemented: 06/09/2022” and a “Projected Date of Annual Review: 06/01/2023.”[147] Given that the DOE developed the IESP on the date by which it argues it should have been notified, plus the fact that it self-imposed an implementation date for services to begin after June 1, 2022, and contemplated those services administered to the Student until at least June 1, 2023, it clearly had awareness of the Student’s needs and laid out a program of services to address those need regardless of any parental notice. On this record, I conclude that the Department waived any right to written notice. Therefore, even if the Department had proven that there was no parental notice by June 1, 2022, and even if the June 1 provision in § 3602-c was applicable to the circumstances of this case, I would still deny the Department’s defense because of its implied waiver. The June 1 provision of Educ. Law § 3602-c will not disturb my award.
Decision and Order
It is hereby ordered, that the New York City Department of Education shall provide, pursuant to the Order of Pendency contained in this decision, five (5) periods of SETSS per week, with direct, group service, in Yiddish, for the ten-month school year, dating back to September 23, 2022, the filing of the DPC, and to continue through the pendency of this matter; and it is further, Ordered, that the DOE shall pay the SETSS Provider for the administration of SETSS, at no more than a total of five hours per week, for the ten-month 2022-2023 school year with payment beginning on September 23, 2023, less any amounts paid under pendency, at a rate of $148.00 per hour, with such payment to be made within thirty (30) days of a submission to the DOE of any invoices for such services, together with an affidavit attached to each invoice attesting to the provision of the SETSS services administered to the Student for the period covered by each invoice, up to the end of the ten-month 2022-2023 school year.
So Ordered.
Dated: March 31, 2023
Richard J. Zeitler, Jr. (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.
DISTRICT EVIDENCE
Exhibit
Title
Date
Pages
1
Individualized Education Services Plan
06/01/2022
9
2
Prior Written Notice
06/22/2022
5
3
Classroom Observation
05/26/2022
1
4
Psychoeducational Report
04/26/2022
7
5
Progress Report
05/26/2022
1
PARENT EVIDENCE
Exhibit
Title
Date
Pages
A Due Process Complaint 09/23/2022 6
B Individualized Education Services Program 06/01/2022 9
C Ten Day Notice 09/23/2022 2
D Affidavit of Parent 01/20/2023 2
E Affidavit of [REDACTED] 01/23/2023 4
F Contract 08/31/2022 2
G Provider Credentials (various) 2 IHO EVIDENCE Exhibit
Title
Date
Pages
I.
Order of Extension
02/17/2022
1
Footnotes
[1] See Ex. A-1.
[2] See 20 U.S.C. § 1415(f).
[3] See Educ. Law § 4404(1) et seq., and § 3602-c.
[4] See Ex. A-2.
[5] See id.
[6] See id. at A-3.
[7] Transcript of February 6, 2022 Due Process Merits Hearing (Tr.) at pp. 11 to 12.
[8] See IHO Ex. I.
[9] See Exs. 1 to 5 and A to G.
[10] Their direct testimonies were submitted in affidavit form, and both witnesses appeared for cross-examination and further questioning.
[11] See Mackey ex rel. Thomas M. v. Bd. of Educ. for the Arlington Cent. Sch. Dist., 386 F.3d 158, 160 (2d Cir. 2004) (citing 20 U.S.C. § 1415[j]); see also Ventura de Paulino v. New York City Dep’t of Educ., 76 IDELR 173 (2d Cir. 2020) (citing Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 83 [3d Cir. 1996]).
[12] Ventura de Paulino, supra. (quoting T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151 [2d Cir. 2014] [itself citing Mackey, supra., 386 F.3d at 163]).
[13] See Educ. Law § 4404(4)(a).
[14] Zvi D. v. Ambach, 694 F.2d 904 (2d Cir. 1982).
[15] Arlington Cent Sch. Dist. v. L.P., 421 F.Supp. 2d 692. 696 (S.D.N.Y. 2006) (citing Murphy v. Arlington Cent. Bd. of Educ., 86 F.Supp. 2d 354, 359 [S.D.N.Y. 2000], aff’d 297 F.3d 195 [2002]).
[16] DOE v. East Lyme Bd. of Educ. et al, 790 F.3d 440, 452 (quoting Mackey ex rel. Thomas M. v. Bd. of Educ. for the Arlington Cent. Sch. Dist., 386 F.3d 158, 160 [2d Cir. 2004]).
[17] See Exs. A-2; see also proposed pendency form requesting the same, at Ex. A-4.
[18] Zvi D. v. Ambach, 694 F.2d 904 (2d Cir. 1982).
[19] See Ex. A-1.
[20] See Ex. B-1.
[21] Exs. 1-7 and B-7.
[22] See Ex. E ¶ 6.
[23] Id. ¶¶ 6 to 7.
[24] See id. ¶ 13.
[25] Id. ¶ 18.
[26] Id. ¶ 13.
[27] Id. ¶ 18.
[28] Id. ¶¶ 2 to 4, and 6.
[29] Id. ¶ 20.
[30] Id. ¶ 8.
[31] Id. ¶ 9.
[32] See Tr. at pp. 20 to 21.
[33] See id. at pp. 21 to 22.
[34] See id. at pp. 25 to 26.
[35] Ex. D ¶ 2.
[36] Id. ¶¶ 3 to 4.
[37] Id. ¶¶ 5 to 8.
[38] Id. ¶ 9.
[39] See Tr. at pg. 33.
[40] Id. at pg. 34.
[41] See Tr. at pp. 36 to 38.
[42] The attorney cited SRO Appeal No. 22-088 in support of this position; I note, however, that the SRO opinion only described the general rule, and then did not apply it, even though it could have. The SRO upheld a denial of the parent’s claims on other grounds, but then added: “Going forward, if they have not done so already... the parent should ensure that she adheres to the June 1 deadline for requesting section 3602-c services if she intends to place the student in a nonpublic school and seek dual enrollment services.” Id. at pg. 13 (emphasis added). Contrary to the Department’s argument that June 1 should be strictly imposed, the quote suggests that, depending on the circumstances, the June 1 requirement can be set aside.
[43] See Tr. aet pp. 39 to 45.
[44] The attorney cited SRO Appeal Nos. 18-088 and 21-069.
[45] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a) and (b)(2).
[46] C.F.R. § 300.13.
[47] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[48] U.S.C. § 1415(f)(3)(E)i).
[49] Rowley, 458 U.S. at 203.
[50] See 20 U.S.C. § 1412(a)(l)(A); Educ. Law§ 4402(2)(a), (b)(2).
[51] See 34 CFR 300.137(a). But see 20 U.S.C. § 1412(a)(10)(C) which states, “[s]ubject to subparagraph (A), this subchapter does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school... and the parents elected to place the child in such private school or facility.” (Emphasis added.) One of those “subject to” conditions is § 1412(a)(10)(A)(vi), which mandates that “[t]he provision of services... shall be provided... by employees of a public agency... or... through contract by the public agency with an individual, association, agency, organization, or other entity.” 20 U.S.C. § 1412(a)(10)(A)(vi) (emphasis added). It is undisputed that the NYC DOE did not provide a special education teacher or itself contract to have a special education teacher provide the IESP services to the Student. The protection of § 1412(a)(10)(C) appears to thus be lifted, and I can no longer say that the DOE is insulted from an IDEA obligation to the Student, notwithstanding that the Student attends a NPS. indicates that the district is no longer shielded by the exception from payment if it fails to implement the services or itself contract for those services, as is the case when the DOE offers a list of providers to parents for SETSS or SEIT services.
[52] Educ. Law § 3602-c(2).
[53] Educ. Law § 3602-c(2)(b)(l).
[54] See, e.g., Application of a Student with a Disability, Appeal No. 22-024.
[55] Educ. Law § 3602-c(2).
[56] U.S.C. §§ 1221e-3, 1415(e)-(f); see also Education Law § 4404(1); 34 CFR §§ 300.151- 300.152; 8 NYCRR §§ 200.5(h)-(l).
[57] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[58] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[59] See East Lyme Bd. of Educ., 790 F.3d at 454.
[60] 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).
[61] See, e.g., Application of a Student with a Disability, Appeal No. 20-115 (applying a tuition reimbursement analysis), and 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).
[62] See Exs. A-2 and B-7.
[63] See, e.g., Application of a Student with a Disability, Appeal No. 21-068.
[64] Id.
[65] 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,” id.) (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. In other words, if the DOE is not directly performing core instruction, it should not then be passing the obligation to contract out that instruction onto the Parent.
[66] See Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011). I note that although Educ. Law § 3602-c does not use the phrase “free appropriate public education,” it does state that services are to be provided 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.” Given that students with disabilities are owed a FAPE in public school settings, as well as in nonpublic school settings where they were referred to the school by their district, see 20 U.S.C. § 1412(a)(10)(B), it would seem that the level of services owed to students under Educ Law § 3602-c is at least similar to what is owed to students under the FAPE standard, meaning that a denial of equitable services is at least similar to a denial of FAPE.
[67] See Application of a Student with a Disability, Appeal No. 22-054 (June 22, 2022) at pg. 3 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]).
[68] Application of a Student with a Disability, Appeal No. 22-004.
[69] 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]).
[70] 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”).
[71] East Lyme Bd. of Educ., 790 F.3d at 454 (citation omitted).
[72] 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”).
[73] Application of a Student with a Disability, Appeal No. 21-183, at pp. 20-21 (Oct. 29, 2021) (approving compensatory SETSS by a bilingual reading specialist at a rate not to exceed $200 per hour).
[74] See, e.g., Application of a Student with a Disability, Appeal No. 21-096 (May 26, 2021).
[75] See 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”).
[76] See, e.g., Application of a Student with a Disability, Appeal No. 21-138 at pp. 12-13 (Aug. 11, 2021) (determining that “there is no basis for a finding that the rate of $175 was unreasonable”).
[77] 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 CFR § 300.148[d][1]). I will contrast this decision, however, to the extent that I do not find a TDN necessary where the parent files a DPC at the beginning of the school year, which provides the same notice and opportunity for the DOE to address how it provides SETSS to the Student as would a TDN.
[78] See Ex. E ¶ 8.
[79] Id. ¶ 9.
[80] Id. ¶¶ 6 to 7; see also Tr. at pp. 21 to 22.
[81] Exs. 1-7 and B-7.
[82] See Ex. F.
[83] See id. at F-2.
[84] See Application of a Student with a Disability, Appeal No. 21-068.
[85] See Exs. A-1 and C-1.
[86] See Application of a Student with a Disability, Appeal No. 21-138, supra.
[87] See Ex. E ¶ 13.
[88] Ex. G-1.
[89] Ex. G-2.
[90] See Ex. B-3.
[91] Exs. 1-7 and B-7.
[92] 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”).
[93] See Ex. E ¶ 20.
[94] 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”).
[95] This would be the case in general for an affirmative defense, but especially so in the context of the DOE raising such a defense during a merits hearing under Educ. Law § 4404(1), where “the school district... shall have the burden of proof... in any [] impartial hearing, except... for a unilateral placement... [regarding] the appropriateness of such placement”).
[96] There are two distinctions to note, however, between students seeking career education services or gifted student services on one hand, and services for students with disabilities on the other. For the former two groups, their parents or guardians notify the district of residence by June 1, 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 1 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).
[97] 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.
[98] See McKinney's Consolidated Laws of NY, Book 1, Statutes §§ 73 and 92(a).
[99] This would include students known to have a disability by a family who moved into the district, or public school students with disabilities that are voluntarily placed in a private program within the same district.
[100] 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).
[101] People v Jones, 26 NY3d 730, 733 (2016).
[102] Jericho Water Dist. v. One Call Users Council, Inc., 37 A.D.3d 136, 140, 826 N.Y.S.2d 659, 662 (2d Dep’t 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]).
[103] Matter of NY State Assn. of Criminal Defense Lawyers v. Kaye, 96 NY2d 512, 519 (2001) (citing People v. Garson, 6 N.Y.3d 604, 614 [2006] [internal citation and quotation marks omitted]).
[104] Jericho Water Dist. v. One Call Users Council, Inc., 37 A.D.3d at 142, 826 N.Y.S.2d at 663 (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 [2003]).
[105] N.Y. Legislative Service, 1996 N.Y.S.N. 7825, Ch. 301, § 1 (replacing the terms “occupational” and “vocational,” – associated more with “a set of educational options for youth lacking the ability to pursue academic goals” – with “career education,” a phrase that “better describes the educational activities appropriate to preparing individuals for participation in the workforce”).
[106] N.Y. Legislative Service, 2005 N.Y.S.N. 8936, Ch. 352, §§ 1 and 22.
[107] Id.
[108] 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, 185 [1988]).
[109] Id.
[110] N.Y. Legislative Service, 2021 N.Y.A.B. 7120, Ch. 253, § 1.
[111] Id. (emphasis added).
[112] Id.
[113] See id. at § 3602-c(1)(d).
[114] Educ. Law § 4401(1); see also 8 NYCRR § 200.1(zz).
[115] Educ. Law §§ 3602-c(2-a) and (10).
[116] Educ. Law §§ 3602-c(2)(b)(1).
[117] Application of a Student with a Disability, Appeal No. 20-115, at pg. 6 (citing Appeal of Sweeny, 44 Ed. Dept. Rep. 176, Dec. No. 15, 139; and 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 Dept. 2007).
[118] Id. at pg. 7.
[119] Id. at pg. 8 (emphasis added).
[120] Colon v. Martin, 170 A.D.3d 1109, 1111, 97 N.Y.S.3d 311, 314 (2d Dept. 2019) (citing McKinney’s Cons. Laws of NY, Book 1, Statutes § 301).
[121] 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, September 2007).
[122] Id. at pp. 1 to 2 (emphasis removed).
[123] Id. at Attachment 1, pg. 1 (emphasis added).
[124] Id. at Attachment 1, pg. 2.
[125] Id. at Attachment 1, pg. 3.
[126] Id. at Attachment 1, pg. 4 (emphasis added).
[127] See <https://infohub.nyced.org/docs/default-source/default-document-library/specialeducationstandardoperating proceduresmanualmarch.pdf?sfvrsn=4cdb05a0_2> (last visited March 10, 2023).
[128] See 72 N.Y.2d 174 (1988).
[129] Id. (emphasis added).
[130] Id. at 184.
[131] Id. at 183 to 184.
[132] Id. at 183.
[133] Id. at 186 (citing Educ. Law §§ 4401-a and 4402[2][a], and 8 NYCRR §§ 200.1 and 200.6).
[134] Id. at 186 (citing Educ. Law §§ 4401-a, 4402, and 4403).
[135] Id. at 186 (citing Educ. Law §§ 4401[2][a] and 4401[2][k]).
[136] Id. at 184 to 185 (emphasis added).
[137] Id.
[138] I note that in limiting but not obviating the June 1 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.
[139] Educ. Law § 4401(1) (as incorporated into § 3602-c[1][d]) (emphasis added).
[140] Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities, supra., at Attachment 1, pg. 11 (emphasis added).
[141] Educ. Law § 4401(1) (as incorporated into § 3602-c[1][d]) (emphasis added).
[142] Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities, supra., at Attachment 1, pp. 1 to 2 (emphasis in original).
[143] F.2d 1009 (2d Cir. 1991).
[144] Application of the Board of the Lewiston-Porter Centr. Sch. Dist., Appeal No. 18-088 (August 31, 2018), at pg. 8.
[145] Id.
[146] Id.
[147] Ex. B-1.