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CASE NUMBER: 588324 - NYC: 239505
FINDINGS OF FACT AND DECISION
Student’s Name [1]: REDACTED (“Student”)
Date of Birth: REDACTED
School District: REDACTED
Hearing Requested by: REDACTED (“Parent”)
Request Date/Date Complaint Filed: 09/23/2022
Date(s) of Hearing: 02/15/2023
Actual Record Closed Date: 02/24/2023
Date of Decision: 03/09/2023
Date of Distribution if Different than Decision Date: N/A Hearing Officer: Harry A. Christodoulou
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 15, 2023
For the Student:
REDACTED (hereinafter referred to as “Parent’s representative”) Parent For the Department of Education (“DOE”): None
INTRODUCTION AND PROCEDURAL HISTORY
Student is a REDACTED-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute. On September 23, 2022, Parent, through Parent’s representative firm, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA regarding the 2021-2022 and 2022-2023 school years (“SYs”) (Ex. P-A). I was appointed on December 22, 2022 to determine the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1), concerning Student’s special education program.
It is asserted in the DPC that the DOE, inter alia, failed: to recommend an adequate and appropriate program that would enable Student to make meaningful and appropriate progress; offer any in-class supports for Student, and instead only recommended Special Education Teacher Support Services (“SETSS”) for Student outside the classroom; to supply providers for the services it recommended for Student for both SYs; to inform Parent how the Student’s Individualized Education Services Programs (“IESPs”) would be implemented; and to provide Student with (the equivalent of) a free appropriate public education (“FAPE”) and/or equitable services (Ex. P-A-3, & P-A-4). Parent sought an order, inter alia, for Student to be awarded 10 (ten) hours of SETSS per week for both SYs, to be provided within or outside the classroom, and the allowance of funding for payment to Student’s SETSS provider/agency for 10 (ten) hours of SETSS per week at an enhanced rate (Ex. P-A-4).
A hearing took place on February 15, 2023. Parent was represented by Parent’s representative. At 12pm when the IH hearing was scheduled to start there was no appearance for the DOE. I sent an email to the District’s email address on record informing that Parent’s representative had indicated that he would be asking to proceed with the hearing. I also requested to please ensure that the District joins by 12:25pm, as I would be going on the record and commencing the hearing (Ex. IHO-I). There was still no appearance and the hearing proceeded notwithstanding the lack of an appearance on behalf of the District.
PREVAILING PARTY
Parent is the prevailing party, and Parent’s request for SETSS funding at an enhanced rate for the 2021-2022 and 2022-2023 SYs is being granted.
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[2] and its implementing regulations,[3] and the New York State Education Law[4] and its implementing regulations. [5]
LEGAL FRAMEWORK
A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits [6].
The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE [7]. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" [8].
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. [9]
Students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP from the public school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them [10].
The IDEA does not confer entitlement to students enrolled in nonpublic schools to all the special education programs or related services such students would receive if they attended public schools. [11]
Instead, the IDEA requires school districts to participate in a consultation process for making special education services available to students in nonpublic schools,[12] and to “allocate a proportional share of federal IDEA funds to provide special education and related services to parentally-placed private school children” with disabilities. [13] These “more limited services provided to parentally-placed children in private schools is commonly known as equitable participation, and is distinct from the FAPE requirement.” [14]
The IESP must be developed in the same manner and with the same contents as an IEP is developed. School districts are required to provide special education services pursuant to the IESP. Such services must be provided on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.
Per a New York State Education Department guidance document 15:
“The term "equitable basis" means that special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district. The new State legislation is intended to maintain the level of services provided to NYS nonpublic students with disabilities through IEPs. …
Accordingly, parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program. A nonpublic student may not be denied services that a public school student would receive based solely upon his or her status as a nonpublic student . . . ”
15 Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c, Attachment 1, September 2007.
Where it is determined that IESP services were not appropriately provided on an equitable basis, the New York State Education Law permits a hearing officer to redress the violation under the same broad authority available for violations of the IDEA.[16] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act”[17] and damage awards are not available under the IDEA. [18]
The hearing officer “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” [19]
FINDINGS OF FACT AND DECISION
Based on the record and Parent’s evidence, I find that the DOE failed to recommend an appropriate program with sufficient support services, given the evaluative material available to the Committee on Special Education, to enable Student to make meaningful progress (Ex. P-C-7; P-N-8) by only recommending 5 (five) periods of SETSS per week in a separate location, especially given the contents of the report and the recommendations (Ex. P-B12, & P-B-13) of the Evaluator (defined on page 13), which report was relied upon by the DOE in developing Student’s IESP(s) (Ex. P-C-1, P-M-2, P-M-3, & P-N-2). Additionally, the DOE’s failure to implement the Student’s IESPs was also tantamount to the denial of a FAPE, and the IESP services were not appropriately provided on an equitable basis during both SYs. No SETSS provider was made available by the DOE and Parent was left on her own to find a provider willing to implement the SETSS recommended in the Student’s IESPs (Ex. P-M-3).
Relief pursued in these proceedings:
Parent seeks an award of 10 (ten) hours of SETSS per week for Student for the two SYs at issue at the enhanced rate of $180.00 (T. P18).
Claim for recovery at an “enhanced rate”:
Notwithstanding my finding that the Student was denied the equivalent of a FAPE, and that the recommended IESP services were not provided on an equitable basis by the DOE, during the two SYs at issue, that is not the end of the enquiry.
It has been held that in approaching the dispute as to the recoverability of an enhanced rate, such disputes should as a practical matter be “effectively examined using a Burlington/Carter unilateral placement framework” and that “attempts that … do not use a Burlington/Carter analysis have tended to lead to chaos” [20].
Further that "parents who are dissatisfied with their child's education can 'unilaterally change their child's placement during the pendency of review proceedings' and can, for example, 'pay for private services, including private schooling.' They 'do so,' however, 'at their own financial risk.'
They can obtain retroactive reimbursement from the school district after the IEP dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test. A parent can obtain such reimbursement if: '(1) the school district's proposed placement violated the IDEA' by, for example, denying a FAPE to the student because the IEP was inadequate; (2) 'the parents' alternative private placement was appropriate'; and (3) 'equitable considerations favor reimbursement.'" [21].
A district is required by State law to locate and assign publicly provided teachers for a dually enrolled student [22]. It has been found that the District's system for providing SETSS that requires the parent to seek out and arrange for a student's instruction by a special education teacher based on information the parent acquired online is a violation of State law [23].
It has been held that "a board of education lacks authority to provide instructional services through an independent contractor"[24] and that the application of State law requires that core instruction provided by a school district be performed either by teachers who are employees of the district or pursuant to a contract for special education services that a district is specifically authorized by law to enter into [25].
It has also been held that “any notion of a public rate for independent SETSS instruction for this student that may be sanctioned in a policy of the district is flawed and cannot be reasonably relied upon by either party, because the district was not authorized to contract for the provision of an independent special education teacher” and that while “districts cannot deliver special education services called for by their educational programming in an unauthorized manner, due at least in part to the requirements that school officials and employees remain accountable under the statutory and regulatory mechanisms put in place by state and federal authorities, they can be made to pay for a privately obtained parental placement, a process that is essentially the same as the federal process under IDEA" 26.
Parent submitted into evidence an affidavit by Parent’s Witness 2 (defined on page 13), the controller of the Agency (defined on page 13) (Ex. P-L), as well as a printout of “Certificate Information for SETSS Providers” (Ex. P-
J) for Provider (defined on page 13). Parent’s Witness 2 stated in her affidavit inter alia that: She is the Controller at the Agency; the Agency agreed to provide Student with 10 (ten) hours of SETSS per week; the Agency started providing services from October [26], 2021; the Agency charges $180.00 per hour for SETSS; the Agency’s “rate of $180 per hour is commensurate with the rates charged by other SETSS agencies in New York City”; Provider was and is the SETSS provider for Student for the two SYs and that he is a licensed and certified special education teacher in the State of New York; the Agency provided 315.5 hours of SETSS to Student for the 2021-2022 SY; as of February 3, 2023 the Agency provided 196 hours of SETSS to Student for the 2022-2023 SY, and that as of the date of the affidavit, namely on February 9, 2023, the agency has not received any payment for providing those services.
Since Parent has not actually paid any money for which she must be reimbursed, this matter is “in a subset of more complicated cases in which the financial injury to the parent and the appropriate remedy are less clear”. “The Second Circuit Court of Appeals has held that a direct payment remedy is an appropriate form of relief in some circumstances, and that "[i]ndeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework" [27].
I have no reason to doubt Parent’s testimony that she made attempts to find a teacher and was unsuccessful in finding one available or willing to provide even the mandated services (Ex. P-M-3). Parent disclosed her call lists for the two SYs, which lists the providers Parent called, which also records that Parent was unable to find a SETSS provider available to service Student at the DOE’s standard rate (Ex. P-D, & P-G).
Parent also disclosed the two contracts entered into between Parent and the Agency, which contracts confirm an obligation by Parent to pay for the SETSS provided by the Agency to Student (Ex. P-E-1, & P-H-1).
It is asserted in the DPC that Parent was unable to find a provider willing to work with Student at the DOE’s standard rates (Ex. P-A-4), but was able to find the Provider willing to do so at an enhanced rate of $180.00 per hour (Ex. P-A-4). Only from September 23, 2022 when the DPC was filed, was the DOE on notice that Parent was seeking an enhanced rate of $180.00 from the DOE. This was the first time that there was an indication that Parent was pursuing that enhanced rate. This is factored into my award below when determining the reasonable rates for each SY before me.
New York State Education Law section 3001 (2016) states that a provider should be licensed in the area of the grade of the child, however, this applies to teachers being employed in public schools. The certification, or lack thereof, is however relevant when it comes to determining a reasonable rate for the services provided.
This is not the first time that such an issue has been before a hearing officer. Generally, teachers at a unilateral placement need not be State-certified [28], there must however be objective evidence of special education instruction or supports that are specially designed by the student's providers at the private school who have reasonable qualifications that are specifically related to the student's deficits [29].
Included in Parent’s disclosure is a printout of the Certificate of Information for New York State Teaching Certificate Holder (Ex. P-J), for the Provider who provided the SETSS to Student. It is evident therefrom that Provider held, effective from 02/01/2020 [30], certification for “Students With Disabilities (Birth – Grade 2) Professional Certificate” and “Early Childhood Education (Birth-Grade 2) Professional Certificate” (Ex. P-J-1).
Provider was not called as witness although it is evident from the Certificate Information that Provider does not hold a certification for the grades which Student was and is in for the 2021-2022 SY and the 2022-2023 SY, being 4th and 5th grade respectively. While this does not defeat Parent’s claim, it is a relevant factor in determining an appropriate award (Ex. P-D).
Parent’s Witness 1 testified as to, inter alia: His familiarity with Student; Student’s struggles to function in the classroom; when Student returned to school for the 2021-2022 SY, a decline in Student’s attentional and emotional challenges being noticeably worse, which needed to be addressed in a more formal way; what the testing which Parent had arranged (Ex. P-B) had shown regarding Student’s educational needs, including the classroom recommended by the Evaluator (P-B-12); how the Attending school offered a replica of an ICT classroom, which included the services for which Parent is claiming relief in these proceedings; how Parent arranged those services through the Agency; how the Provider worked with Student mostly in the classroom, but also out of the classroom if Student would become overwhelmed and needing a less distracting environment; how Student continues to require 10 (ten) hours of SETSS per week to make meaningful and appropriate progress; and how Student has progressed with the help of the Provider (Ex. P-K). Student’s progress and continued need for the same support was also confirmed by Parent in her affidavit (Ex. P-M-4), as well as by Provider in the two progress reports on record (Ex. P-F, & P-I).
Based on the above factors, I find that Parent is entitled to an award for SETSS and that a reasonable rate in the circumstances of this case for the SETSS to be funded is an amount of $165.00 per hour for the 2021-2022 SY, and $175.00 per hour for the 2022-2023 SY. I was not provided with the Attending School’s academic calendar for either SY, but note that Student made progress with the hours provided for the 2021-2022 SY, namely with 315.5 hours. The contract for the 2021-2022 SY was only signed on October 26, 2021, which aligns with the date when the services started (Ex. P-K-3) and explains why that number of specific number of hours was provided for the 2021-2022 SY.
In the circumstances, Parent is entitled to an Order for payment of SETSS provided by the Agency to Student during the 2021-2022 SY and the 2022-2023 SY at enhanced rates, but adjusted as regards the rate. Other than the relief set out in my Order below, I find that no basis and/or evidence in the record supports any additional relief.
ORDER
Based upon the above Findings of Fact, it is hereby:
1. ORDERED that, the DOE is directed to fund Student’s SETSS for the 2021-2022 SY (ten times per week), for the period commencing on October 26, 2021 through to the end of June 2022 at the enhanced rate of $165.00 per hour, by issuing payment directly to the Agency, upon the submission of invoices for the SETSS rendered to Student during that specified period, together with an affidavit referencing the Agency’s invoices and attesting to the provision of the SETSS provided to the Student for the period covered by each invoice, up to a maximum of 315.5 (three hundred and fifteen and a half) hours in total.
2. ORDERED that, the DOE is directed to fund Student’s SETSS for the 2022-2023 SY (ten times per week), for the period commencing at the beginning of September 2022 through to the end of June 2022 at the enhanced rate of $175.00 per hour, by issuing payment directly to the Agency, upon the submission of invoices for the SETSS rendered to Student during that specified period, together with an affidavit referencing the Agency’s invoices and attesting to the provision of the SETSS provided to the Student for the period covered by each invoice, up to a maximum of 400 (four hundred) hours in total (i.e., 40 weeks times 10 hours per week).
SO ORDERED.
DATED: March 9, 2023
__H.A.C._(Signed Electronically)___
Impartial Hearing Officer
Harry A. Christodoulou
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX A – REDACTION IDENTIFICATION PAGE
REDACTED
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT’S EXHIBITS
A. Request for Due Process Proceeding and Notice of Appearance 09/23/2022 6 pages
B. Confidential Neuropsychological and Educational Report 06/23/2021 17 pages
C. IESP 10/14/2021 10 pages
D. Parent’s Call List (21-22 SY) 10/26/2021 1 page
E. SETSS Contract 10/26/2021 2021-2022 2 pages
F. Special Education Teacher’s Progress Report 01/24/2022 4 pages
G. Parent’s Call List (22-23 SY) 09/06/2022 3 pages
H. SETSS Contract 09/06/2022 2022-2023 2 pages
I. Special Education Teacher’s Progress Report 01/19/2023 4 pages
J. Certificate Information for SETSS Provider 02/06/2023 1 page
K. Affidavit of Parent’s Witness 1 02/09/2023 3 pages
L. Affidavit of Parent’s Witness 2 02/09/2023 2 pages
M. Affidavit of Parent 02/13/2023 4 pages
N. IESP 01/10/2023 11 pages
DOE’S EXHIBITS
- - - -
IHO’S EXHIBITS
I. IHO’s email to the District 02/15/2023 1 page
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] 20 U.S.C. § 1400 et seq.
[3] 34 C.F.R. § 300 et seq.
[4] Educ. Law Art. 89 § 4404 et seq.
[5] 8 NYCRR § Part 200.
[6] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[7] 20 U.S.C. § 1415[f][3][E][i].
[8] Rowley, 458 U.S. at 203.
[9] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[10] Provisions of section 3602-c; See also 34 CFR 300.130 and 300.145-147.
[11] See 34 C.F.R. § 300.137(a).
[12] See 34 C.F.R. § 300.134.
[13] E.T. and D.T. ex rel. E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at 10 (S.D.N.Y. 2012) (citing J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 665 [S.D.N.Y. 2011] [internal quotation marks omitted]); see also 20 U.S.C. § 1412(a)(10)(A)(i)-(ii); 34 C.F.R. §§ 300.131 – 300.133.
[14] E.T. and D.T. ex rel. E.T., supra., at 11 (internal quotations and citations omitted); c.f. Application of a Student with a Disability, Appeal No. 20-115 (Sept. 3, 2020) at pg. 4 (noting that in a particular case the difference in applying a FAPE standard or an “equitable services standard” is a “distinction without a difference” where N.Y. Educ. Law § 3602-c “has been routinely treated . . . as providing eligible students with an individual right to special education services that must be tailored to the student’s particular needs by the CSE” that are then protected “through the due process hearing system called for by the IDEA” (internal citations omitted)).
[16] See Application of a Student with a Disability, Appeal No. 20-023 (citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 [D. Conn. 2017]).
[17] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[18] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[19] See Doe v. East Lyme, 790 F.3d at 454.
[20] Application of a Student with a Disability, Appeal No. 20-140.
[21] Ventura de Paulino v New York City Dept. of Educ., 959 F3d 519, 526-27 [2d Cir 2020] [citations omitted].
[22] Educ Law § 3602-c[2][a].
[23] See Application of a Student with a Disability, Appeal No. 20-115; Application of a Student with a Disability, Appeal No. 20- 087; Application of a Student with a Disability, Appeal No. 20-140.
[24] Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeal of Woodarek, 46 Ed Dept Rep 1, Decision No. 15,422).
[25] See Bd. of Co-op. Educ. Servs. for Second Supervisory Dist. of Erie, Chautauqua & Cattaraugus Ctys. v. Univ. of State Educ. Dep't, 40 A.D.3d 1349, 1350 [3d Dep't 2007].
[26] Application of a Student with a Disability, Appeal No. 20-140.
[27] See Application of a Student with a Disability, Appeal No. 20-140 citing E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 [2d Cir. 2014]; also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 430 [S.D.N.Y. 2011] this latter case finding it appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, had not done so due to a lack of financial resources. See also Application of a Student with a Disability, Appeal No. 20-087.
[28] See Carter, 510 U.S. 7, 14, noting that unilateral placements need not meet state standards such as state certification for teachers. See also Application of a Student with a Disability, Appeal No. 12-125.
[29] Application of a Student with a Disability, Appeal No. 20-140.
[30] This document reflects a printing date on the top left corner of 02/06/2023 and reflects registration status as “Registered Active” (Ex. P-J-1).