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CASE NUMBER: 588817 – NYC: 239926
FINDINGS OF FACT AND DECISION
Student’s Name: REDACTED
District: REDACTED
Impartial Hearing Officer: Ginger James
Date of Filing: September 28, 2022
Hearing Requested by: Parent
Date of Hearing: February 1, 2023
Record Close Date: February 28, 2023
Date of Decision: March 8, 2023
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 4, 2023
For the Student:
REDACTED, Esq., Parent’s Attorney #2
For the Department of Education:
REDACTED, District Representative
Observer:
REDACTED, Esq., Observing IHO
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 6, 2023
For the Student:
REDACTED, Esq., Parent’s Attorney #2
For the Department of Education:
REDACTED, District Representative
Observer:
REDACTED, Esq., Observing IHO
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 1, 2023
For the Student:
REDACTED, Esq., Parent’s Attorney #2
For the Department of Education:
REDACTED, District Representative
BACKGROUND AND POSITIONS OF THE PARTIES
Parent,[1] through Parent Attorney #1, filed a Due Process Complaint (“DPC”) on or about September 28, 2022.
Parent alleges that the Department of Education (“DOE” or “District”) failed to provide Student a free appropriate public education (“FAPE”) on an equitable basis for the 2022-2023 school year by failing to implement the services contained in an Individualized Education Program (“IEP”) dated June 28, 2022 (“the 2022 IEP”) (Ex. A; Ex. B; Tr. 46).[2] [3]
Regarding relief sought, at the outset, Parent invoked pendency (Ex. A-2; PHC Tr. 5-6). Regarding final relief, Parent seeks a compensatory education award consisting of: Speech-Language Therapy (“SLT”) to be provided individually three times per week for 30 minutes each session to be administered in REDACTED; Occupational Therapy (“OT”) to be provided individually three times per week for 30 minutes each session to be administered in English; and a Health Paraprofessional to assist Student individually six hours per day five days per week (Ex. A-2; Ex. B-1, 12; Pend Tr. 27-28; Tr. 46-47). Parent seeks an order requiring the District to fund these services by issuing payments to providers of Parent’s choosing through Related Services Authorizations (“RSAs”) or at a “reasonable market rate” (Ex. A-3; Tr. 49).[4] Additionally, Parent seeks attorney’s fees and expenses and any other relief that may be just and proper (Ex. A-3). In light of the foregoing and as more fully discussed below, I find that the DOE failed to provide Student a FAPE on an equitable basis for the 2022-2023 school year, and that the relief Parent seeks is appropriate. However, as more fully described below, I decline to award attorney’s fees and expenses.
PROCEDURAL HISTORY
For the 2022-2023 school year, Student attends “the Private School” (Ex. A-2).
Parent’s Attorney #1 filed the DPC on September 28, 2022. After the filing, the Resolution Period began. It ended on October 28, 2022 with no meeting held (PHC Tr. 8-9).
On December 21, 2022, I was appointed as Impartial Hearing Officer (“IHO”) to preside over this matter.
On January 4, 2023, Parent’s Attorney #2 and District Representative met with an IHO for a Settlement Conference and thereafter met with me for a Pre-Hearing Conference (“PHC”).[5] At the PHC, Parent’s Attorney #2 renewed their request for pendency, and I scheduled a Pendency Hearing for January 6, 2023 (PHC Tr. 5-8). Noting that the State had extended the compliance date by 30 days prior to my appointment, I granted the Parties’ request to extend the compliance date to March 3, 2023 (PHC Tr. 9-12). I scheduled a Status Conference for February 1, 2023 (PHC Tr. 13-14), and the Due Process Hearing for February 13, 2023 (PHC Tr. 12-13, 15).
On January 6, 2023, Parent’s Attorney #2 and District Representative appeared before me for the Pendency Hearing. District Representative asserted that: 1) Student is not entitled to pendency because Student was parentally placed in a private school and was to receive services on an equitable basis pursuant to NYS Educ. Law § 3602-c and not pursuant to the IDEA; 2) Student is not automatically entitled to the services as Parent was required to request services by June 1st of the preceding school year; 3) the DOE is not contesting that the equitable services requested by Parent were previously recommended by the DOE nor that the DOE failed to secure a provider for the services; and 4) the DOE is prepared to resolve the matter (Pend. Tr. 22-24, 31-32). Addressing the issue of whether the District is to provide services pursuant to an IEP, and not an IESP, District Representative explained that this case is akin to an IESP matter as Student is parentally placed and the only issue is implementation of services (Pend. Tr. 24-25, 33). Parent’s Attorney #2 did not know why an IEP had been generated, but argued that Student is entitled to pendency regardless of the type of document the District issued (Pend. Tr. 25-26). Parent’s Attorney #2 proffered Exhibits A, B and C (Pend. Tr. 26). District Representative had no objection to their introduction, and I admitted all exhibits into evidence (Pend. Tr. 26-27). Parent’s Attorney #2 then explained their position on pendency (Pend. Tr. 27-29, 32). District Representative did not contest that the June 2022 IEP was the last agreed-upon IEP (Pend. Tr. 29). The Parties then addressed their positions on whether the IEP should be treated as an IEP or an IESP (Pend. Tr. 29-30). District Representative maintained that the document “meets the requirements” of an IESP in that it does not provide for the Student’s “full education,” but rather acknowledges that Student is parentally placed and is to receive additional services (Pend. Tr. 30). Parent’s Attorney #2 surmised that Students in preschool who are not “turning five,” receive “IEPs because there is no public school setting for those students” (Pend. Tr. 31). The Parties continued discussing their positions on pendency, including the District’s position that pendency is grounded in NYS Educ. Law § 3602-c and NYS Educ. Law § 4404 (Pend. Tr. 31-35). I set a briefing schedule, with the District to submit their legal arguments on pendency to me by January 11, 2023 and Parent’s Attorney #2 to submit their response by January 18, 2023 (Pend Tr. 35-37).
On January 18, 2023, by email, District Representative submitted their brief contesting pendency (IHO Ex. I; IHO Ex. II). Although they opposed pendency, the District specifically requested that I “issue an [sic] FOFD awarding the Student the services prescribed in the IESP,” noting that the District does not dispute that Student is entitled to the services recommended in the IESP (IHO Ex. II-3; see also IHO Ex. II-2, 9). Parent’s Attorney #2 did not submit a written brief on pendency.
On February 1, 2023, Parent’s Attorney #2 and District Representative appeared virtually for the Status Conference, but based upon an off-record conversation, the Parties requested to proceed immediately to the Due Process Hearing (“DPH”) (Tr. 45). Parent’s Attorney #2 acknowledged that they had not filed their brief on pendency, that I would have provided additional time for them to do so, and that I had held my decision in abeyance pending that submission (Tr. 44, 45). Parent’s Attorney #2 sought to introduce the same exhibits as they had for the Pendency Hearing (Tr. 45, 47). As such, District Representative waived any argument regarding five-day disclosure and had no objection to their introduction (Tr. 45, 47-48). Accordingly, I admitted all exhibits (Tr. 48). Parent’s Attorney presented an opening statement explaining that the District never implemented the IEP issued on June 28, 2022 which recommended that Student receive SLT, OT and the services of a Paraprofessional (Tr. 48). Parent’s Attorney #2 further explained that Parent sent the District a ten day notice (“TDN”) informing the District that they would privately place Student and seek the services on their own (Tr. 48). Accordingly, Parent’s Attorney #2 asserted that the District failed to meet Prong One, that they had met Prong Two and that equites were in their favor (Tr. 49). District Representative again agreed that the District failed to implement the IEP (Tr. 49). Parent reiterated the remedies sought, including a declaration that the District denied Student a FAPE, and that the District fund providers selected by Parent at the “fair market rate” or through Related Services Authorizations (“RSAs”) (Tr. 49-50). Finally, Parent’s Attorney withdrew their application for pendency (Tr. 51). Neither Party presented a closing statement (Tr. 50).
FINDINGS OF FACT
After a full review of the record generated in these proceedings, I make the following findings of fact and determinations. Unless otherwise noted, none of the facts are contested in this matter. On June 28, 2022, the Committee on Preschool Special Education (“CPSE”) convened to consider Student’s eligibility for special education and related services (Ex. B). The CPSE classified Student as a Preschool Student with a Disability (Ex. B-2), noting that Student tested in the below average range on the Stanford-Benet Intelligence Scale, Fifth Edition (Ex. B-3-4), and exhibited weaknesses in many areas such as “significantly delayed” speech intelligibility, poor expressive language skills, below average receptive language skills, poor fine motor skills and “significantly decreased grasping skills” (B-4-5). Student is allergic to many foods, with exposure to such foods potentially resulting in swelling, hives, and esophageal collapse (Ex. B-5). The CPSE developed an IEP recommending: SLT to be provided individually three times per week for 30 minutes each session to be administered in REDACTED; OT to be provided individually three times per week for 30 minutes each session to be administered in English; and a Health Paraprofessional to assist Student individually six hours per day five days per week (Ex. B-12). Services were to have been provided at a childcare location selected by Parent and were to have commenced on September 8, 2022 (Ex. B-2, 12).
The District failed to implement any of the services (Tr. 49).
Student and Parent reside in New York City and Student is attending Private School for the 2022-2023 school year (Ex. A). Private School is located within the geographic boundaries of the DOE.
On September 28, 2022, Parent, through Parent’s Attorney #1, sent the District a TDN (Ex. C). Pursuant to the TDN, Parent “consent[ed] to all services recommended on [the June 2022] IESP [sic] being implemented by the DOE” (Ex. C-2). Parent further relayed that they were unable to locate related service providers to administer services at the District’s “standard rate,” and therefore, Parent would implement the IEP on their own and seek reimbursement or direct payment from the District (Ex. C-2). Parent asked the District to respond if the District had any alternative options (Ex. C-2).
On September 28, 2022, the same day that Parent’s Attorney #1 filed the TDN, Parent’s Attorney #1 filed the DPC (Ex. C; Ex. A).
LEGAL STANDARDS AND FRAMEWORK
Burden of Proof
Under the IDEA and the NY State Education Law, school districts have the burden of proof that a FAPE has been provided to the student, except that where tuition reimbursement is sought, the parent has the burden of proof with respect to the appropriateness of the parent’s chosen educational placement. See 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). [6]
FAPE
The IDEA provides that children with disabilities are entitled to a FAPE. See 20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). See 20 U.S.C. § 1401(9). A school district has offered a student a FAPE when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
Dual enrollment
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs. See 20 U.S.C. § 1412(a)(l)(A); Educ. Law § 4402(2)(a), (b)(2). The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools. See 34 C.F.R. § 300.137(a). Under State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made. See Educ. Law § 3602-c(2). 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]." Educ. Law § 3602-c(2)(b)(l).
The implementation of IESP services falls on the district of location insofar as "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." Educ. Law § 3602-c(2)(a). The CSE must "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.” Educ. Law § 3602-c(2)(b)(1). Additionally, section 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404.
Although it may be permissible for a district to include the parent in the identification of a particular provider, especially if the parent is willing and able to do so, the District may not shift the responsibility of finding a provider to the parent. The District agreed that it did not implement Student’s IEP. The District did not explain why it did not locate providers for Student and schedule the special education services for Student. Had the District done so, Parent would have had the responsibility to produce Student to receive the services.
Whether Student was entitled to the recommended services pursuant to an IEP or pursuant to an IESP does not change the outcome here. There was no dispute as to any material fact– that the Student was entitled to the services in the June 28, 2022 IEP and that the District failed to provide those services (Tr. 49; IHO Ex. II-2, 3, 9). A district cannot be absolved of its statutory obligation to implement services for the student simply by being inactive in implementing the mandated services. By not implementing the services pursuant to an IEP, the District denied Student a FAPE. The District’s position that Student was entitled to those services on an equitable basis does not alter the outcome. By failing to provide Student with the services to which Student was entitled, the DOE failed to provide services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district. See Educ. Law§ 3602-c(2)(a), (b)(l).
REMEDIES
The remedy for a school district’s failure to provide appropriate equitable services required under Education Law § 3602-c is similar to the remedy for a school district’s failure to provide appropriate services under the IDEA. See Application of a Student with a Disability, Appeal No. 20-023, citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 (D.Conn. 2017). Under the IDEA, courts can “grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA (see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 [2d Cir. 2002]), “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme, 790 F.3d at 454).
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time, and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. See P. v. Newington, 546 F.3d at 123. Compensatory education can serve as a “replacement of educational services the child should have received in the first place,” and any award “should aim to place disabled children in the same position they would have occupied but for the school district’s violations of IDEA[.]” Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that “[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act”).
Compensatory education awards may include payment for out-of-pocket educational expenses incurred by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate remedy. See Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-79 (7th Cir. 2015) (citing cases). Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers. See Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 (D. Minn. 2022), citing Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2019).
State law places the burden of production and persuasion in this type of case entirely on the DOE. See NY Educ. Law § 4404(1)(c). The DOE is, therefore, required to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that they would have been but for the denial of a FAPE.
In this case, the District did not carry its burden, and elected not to do so, by asking me to issue a FOFD “on the papers consistent with the IESP” and by not challenging Parent’s request for RSAs or reasonable market value for the services (Tr. 45, 47-48, 49, 50; IHO Ex. II-2, 3, 9).
Finally, I find that there is no evidence or claim made by the District asserting or suggesting that the Parent failed to cooperate with the District or interfered in any manner with the District’s obligation to provide the Student with a FAPE on an equitable basis for the 2022-2023 school year.
OTHER CONTENTIONS
Parent seeks payment of attorney’s fees and expenses associated with representation in this matter (Ex. A-10). The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party. Entitlement, if any, to costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008; Application of a Child with a Disability, Appeal No. 06-109.
Only a court can determine who is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the Parent is the prevailing party entitled to attorney fees.
Other than the relief set out in my Order below, and my findings detailed in this section of “Other Contentions,” I find the Parties’ remaining contentions to be unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all of Parent’s remaining claims not discussed herein are dismissed with prejudice
ORDERS
IT IS HEREBY ORDERED THAT the Department of Education (“DOE”) shall provide Student with a bank of 54 hours of Speech-Language Therapy (“SLT”) to be administered in REDACTED by a licensed provider of Parent’s choosing. The provider shall be paid either by providing Parent Related Services Authorizations (“RSAs”) for said services or at a reasonable market rate for any period during which said services are not provided by the DOE for the 2022-2023 school year. The reasonable market rate shall be consistent with rates that have been paid by the Implementation Unit for comparable services within six months of the date of this Order; and it is further
ORDERED THAT the DOE shall reimburse Parent for the cost of the SLT services described above within 15 days of receipt of proof of payment and an accompanying sworn affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT the DOE shall pay to the Provider listed above upon within 15 days of receipt of invoices for services rendered and an accompanying sworn affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT the DOE shall provide Student with a bank of 54 hours of Occupational Therapy (“OT”) to be administered in English by a licensed provider of Parent’s choosing. The provider shall be paid either by providing Parent RSAs for said services or at a reasonable market rate for any period during which said services are not provided by the DOE for the 2022-2023 school year. The reasonable market rate shall be consistent with rates that have been paid by the Implementation Unit for comparable services within six months of the date of this Order; and it is further
ORDERED THAT the DOE shall reimburse Parent for the cost of the OT services described above within 15 days of receipt of proof of payment and an accompanying sworn affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT the DOE shall pay to the Provider listed above upon within 15 days of receipt of invoices for services rendered and an accompanying sworn affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT the DOE shall provide Student with a bank of 1080 hours of Health Paraprofessional Services to be administered in English by a licensed provider of Parent’s choosing. The provider shall be paid either by providing Parent RSAs for said services or at a reasonable market rate for any period during which said services are not provided by the DOE for the 2022-2023 school year. The reasonable market rate shall be consistent with rates that have been paid by the Implementation Unit for comparable services within six months of the date of this Order; and it is further
ORDERED THAT the DOE shall reimburse Parent for the cost of the Health Paraprofessional Services described above within 15 days of receipt of proof of payment and an accompanying sworn affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT the DOE shall pay to the Provider listed above upon within 15 days of receipt of invoices for services rendered and an accompanying sworn affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT if Parent requests assistance finding a provider to provide the above services at any time, the DOE must locate three providers who are ready, willing, and able to begin providing the services to the Student according to the terms of this order. If Parent presents a good faith basis for rejecting the three providers, the DOE must locate two additional providers from which Parent may choose. The DOE shall not be required to identify more than five providers in any given six-month period. Nothing stated here prevents Parent from locating and utilizing a provider of their own choosing; and it is further
ORDERED THAT to the extent such services, as described above, are not utilized by Student by one year from the date of this Order, any remaining services shall expire; and it is further
March 8, 2023 (signed electronically)
Ginger James Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX A- REDACTION IDENTIFICATION PAGE
Redacted Information Term Used In FOFD
REDACTED Student
REDACTED Parent
REDACTED Parent’s Attorney #1
REDACTED Parent’s Attorney #2
REDACTED District Representative
REDACTED District
REDACTED Private School
APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Due Process Complaint 09/28/2022 6 pages
B. CPSE IEP 06/28/2022 16 pages
C. Ten Day Notice 09/28/2022 2 pages
DOE EXHIBITS
None
IHO EXHIBITS
II. District Representative’s Email I Submitting the District’s Brief in Opposition to Pendency 01/18/2023 1 District’s Pendency Brief 01/18/2023 10 pages
Footnotes
[1] No personal identifying information is contained within the body of this Findings of Fact and Decision (“FOFD”). For personal identifying information, please refer to the attached appendix. Further, this FOFD contains no references to the gender binary. The pronoun “they” is used as needed.
[2] As detailed below, I have analyzed this matter both as an IEP and as an Individualized Education Services Program (“IESP”) pursuant NYS Educ. Law § 3602-c, recognizing that although the District is to provide Student services pursuant to an IEP, Student is parentally placed in Private School, which generally entitles a student to receive services on equitable basis.
[3] References to the transcript from the Pre-Hearing Conference are denoted “PHC Tr.” References to the transcript from the Pendency Hearing are denoted “Pend. Tr.” References to the transcript from the Due Process Hearing are denoted “Tr.”
[4] In the DPC, Parent’s Attorney #1 had requested that the services be funded though RSAs or at the providers’ prevailing rates (Ex. A-3). However, at the DPH, Parent’s Attorney #2 requested funding through RSAs or “fair market rate” (Tr. 49-50).
[5] Settlement conferences are conducted by an OATH IHO not assigned to the case whose purpose is to aid the parties in exploring and facilitating a resolution to the DPC. The content of the conferences is confidential, and the parties are directed to attend with knowledge of the dispute and settlement authority should there be an interest in resolution.
[6] SETSS cases have been treated as a hybrid between unilateral placement theory cases, see e.g., Application of a Student with a Disability, Appeal No. 21-101, and pure compensatory education cases. See, e.g., 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). Accordingly, I would first determine whether the District met its burden to demonstrate that its offered program was reasonably calculated and implemented to provide this Student with educational benefits. I would then turn to whether the providers Parent chose to implement the services are appropriate, the burden being upon Parent. I would also examine the reasonableness of the rate and the equities, such as the TDN Parent served on the District. Despite the assertion by Parent’s Attorney #2 that the “program [selected by Parent] is fair,” meaning appropriate, that record was not developed (Tr. 49). The Parties agreed to proceed with the documents that are in evidence with the understanding that the District would have no objection to Parent seeking “fair market rate” for the services the District is not providing Student. Accordingly, I have decided this matter using a pure compensatory education framework.