New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 590230 NYC: 241202

FINDINGS OF FACT AND DECISION

Student’s Name: Redacted

District of Private

School Location: N.Y.C. Dept. of Ed.,

REDACTED

Impartial Hearing Officer: Jeannie L. Elie-Fulgencio, esq.

Date of Filing: 10/27/2022

Hearing Requested by: Parent

Date of Hearing: March 28th, May 3rd, & June 5th of 2023 Record Close Date: 06/16/2023

Date of Decision: 07/01/2023

BACKGROUND

The Parent, through counsel, filed a Due Process Complaint(“DPC”) on or about October 27, 2022. Parent alleges that the Department of Education (“DOE”) failed to implement an individualized education service plan (“IESP”) for the 2022-2023 school year. (Ex. P-A). The Parent seeks DOE funding for the providers located by the Parent at the reasonable market rate.

In light of the foregoing and as more fully discussed below, I find that the DOE failed to implement the IESP, thereby denying the Student a free appropriate public education (“FAPE”) on an equitable basis for the 2022-2023 school year, and that the DOE should fund the providers located by the Parent.

PROCEDURAL HISTORY

I was appointed on January 13, 2023. A prehearing conference was held virtually on February 7, 2023. On March 8, 2023, the parties appeared for a Pendency Hearing. The parties indicated that they were unable to resolve the case at that time, the parties jointly moved for an extension of the compliance period in order to proceed with a merits hearing, which I granted.

On March 28th, May 3rd, and June 5th of 2023, both parties appeared virtually for the hearing. The DOE did not seek to introduce witness testimony nor any other evidence. In addition, the DOE acknowledged that the Student is entitled to the services recommended in the Student’s IESP and that the duty rest on the DOE to provide the providers to implement said services. Parent submitted ten (10) exhibits into the record on consent of the DOE. (March 28, 2023, Trans. Pg. 5). Included in Parent’s evidence were three (3) affidavits from the Parent, Speech Language -Pathologist, and Educational Director of the Agency, respectively. All three affidavits were accepted into the record. The DOE crossed examined the Parent. Parent rested and the DOE advised that it had no further statement to make or testimony or documents to offer. Both the DOE and Parent’s counsel made their oral closing arguments. (See June 5, 2023, Trans.)^[1]

FINDINGS OF FACT AND DECISION

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

It is uncontested that the Student and Parent reside in New York City and the Student attended the Private School during the 2022-2023 school year. (Ex. P- A) Furthermore, it is uncontested that the Private School is located within the geographic boundaries of the DOE. The Parent did not challenge the content of the IESP, merely the delivery of the recommended services. (Ex. P-A).

Burden

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

June 1st Notification/ Waiver

The DOE argued that due to Parent’s failure to submit a written request for special education services for Student prior to June 1st, 2022, Student was not entitled to services (Educ. Law § 3602-c(2)). The Parent’s attorney argued that the DOE waived the June 1st deadline through its conduct and should therefore be barred from raising it as a defense. The SRO has developed the “clear and unmistakable” waiver standard found in L.L.R.B v. N.Y. Tele. Co., 930 F.2d 1009 (2d Cir. 1991). Such a waiver can be implied, if a party is aware of their rights, by express language, agreement or conduct of the parties. (Id.)

There is no dispute that the parent failed to request special education services before June 1, 2022, or that the DOE failed to provide the services. However, since the DOE failed to raise this defense at the onset of administrative proceedings, it is clear, through their conduct, the DOE waived the June 1st requirement.

Thus, I agree with Parent’s Attorney that the DOE’s actions constitute a waiver of the June 1st deadline.

FAPE

The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (20 U.S.C. § 1401(9)). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

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 (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 CFR 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 (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)).

Here, there is no dispute that the Student is entitled to services pursuant to the IESP dated April 7, 2022. (Ex. P-B). Parent alleges testified that the DOE failed to implement SETSS, Speech-Language Therapy, and Occupational Therapy and the DOE, which bears the burden of proof, has failed to introduce any evidence to the contrary

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.

A district cannot be absolved of its statutory obligation to implement services for the student simply by being inactive in implementing the mandated services. The DOE had the obligation to provide services to the Student in conformity with the IESP (Educ. Law§ 3602c(2)(a), (b)(l);. In failing to do so, the DOE failed to provide the Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.

Compensatory Relief

The remedy for a school district’s failure to provide appropriate equitable services required under Education Law § 3602-c is similar to the remedy for a school district’s failure to provide appropriate services under the IDEA. See Application of a Student with a Disability, Appeal No. 20-023, citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 (D.Conn. 2017). Under the IDEA, courts can “grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act” (Doe

v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015)) (citation omitted). 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).

As to the remedy, although the Department chose to not present a case, “an outright default judgment awarding any and all of the relief requested without question is a disfavored outcome.”^[2] This is so “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.”^[3] Moreover, the State Review Office (SRO) has held that when the parent has not already paid the SETSS 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.^[4] Because the Parent had to find the provider on their own and because “caselaw supports reimbursement and direct remedies in a unilateral placement case,” the SRO has determined that the question of whether a SETSS 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.”^[5] 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.”^[6] The evidence therefore must show that the providers’ rates are reasonable and appropriate under the circumstances.

The factors that have been found relevant to the reasonableness of a provider’s rate include: the Provider’s explanation of the rate, including its costs and the qualifications of its instructors7; the value that specialized certification, such as a bilingual extension, adds to instruction8; the Parent’s efforts to locate a DOE-approved providers from a list provided by the Department to the Parent9 ; 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 Parent’s selected Providers at the requested rate.^[10] I will therefore determine, in light of these factors, whether the requested rate is unreasonable.^[11]

7 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”).

8 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).

9 See, e.g., Application of a Student with a Disability, Appeal No. 21-096 (May 26, 2021).

Here, the Parent that testified indicated that they considered other providers for Speech and Language Therapy, however when asked on cross examination if he made any efforts to contact another speech and language therapist he stated “it was my wife. It wasn’t me.” (June 5, 2023, Trans. Pg. 22). The Parent when asked, “did you reach out to CSE if you had trouble with the list of providers?” The Parent responded, “my wife took care of it, so I didn’t know. I don’t know much about that reach out.” (See, March 28, 2023, Trans. Pgs. 18-19). However, in the Parent’s signed affidavit they stated that they contacted the Speech and Language Therapy on behalf of the Student. (Ex. P-D2). Given the inconsistencies in the Parent’s testimony pertaining to efforts made to contact service providers from the list provided to him by the DOE, I find this portion of the Parent’s testimony to be not credible.

Furthermore, both contracts provided by the Parent for services rendered to the Student provide no rate of pay and fails to state the total cost of services rendered to the Student. The Parent stated that they have not made a single payment to the service providers. (Ex. P-D1). Nevertheless, the Parent is requesting the reasonable market rate, however the DOE is requesting the reasonable market rate capped at the amount that the DOE’s implementation unit has paid within the past twelve months and no greater than the lowest rate paid to providers by the DOE’s implementation unit within the past twelve months.

Based on the hearing record, I find that the Student is entitled to the following services: Special Education Teacher Support Services (SETSS) in Yiddish, five times per a week for a period, Speech-Language Therapy, in Yiddish, two times per a week for thirty minutes, and Occupational Therapy, in English, two times per a week, for thirty minutes.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

(1) The New York City Department of Education shall pay for the provision of SETSS in Yiddish, at no more than five times per a week for a period, for the ten-month 2022-2023 school year, less any amounts paid under pendency and to the extent such services have not already provided, at a rate equal to any agreed upon rate and, if there is no agreed upon rate, then at a rate equal to the average of the highest rate and the lowest rate that the Department has paid for such services with a similarly qualified provider in the last twelve months, 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 SETSS administered to the Student for the period covered by each invoice, up to the end of the ten-month 2022-2023 school year.

(2) The New York City Department of Education shall pay for the provision of Speech and Language Therapy in Yiddish, at no more than two times per a week for thirty, minutes for the ten-month 2022-2023 school year, less any amounts paid under pendency and to the extent such services have not already provided, at a rate equal to any agreed upon rate and, if there is no agreed upon rate, then at a rate equal to the average of the highest rate and the lowest rate that the Department has paid for such services with a similarly qualified provider in the last twelve months, 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 Speech and Language Therapy administered to the Student for the period covered by each invoice, up to the end of the ten-month 2022-2023 school year.

(3) The New York City Department of Education shall pay for the provision of Occupational Therapy in English, at no more than two times per a week, for a thirty minutes, for the ten-month 2022-2023 school year, less any amounts paid under pendency and to the extent such services have not already provided, at a rate equal to any agreed upon rate and, if there is no agreed upon rate, then at a rate equal to the average of the highest rate and the lowest rate that the Department has paid for such services with a similarly qualified provider in the last twelve months, 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 Occupational Therapy administered to the Student for the period covered by each invoice, up to the end of the ten-month 2022-2023 school year.

Dated: July 1, 2023

Jeannie L. Elie-Fulgencio

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

PARENT EVIDENCE

A. Due Process Complaint (“DPC”) 10/27/2022 6 pages

B. Individual Education Services Plan (“IESP”) 4/7/2022 14 pages

C. Ten Day Notice (“TDN”) 10/27/2022 2 pages

D. Affidavit of Parent 3/2/2023 3 pages

E. Contract 10/25/2022 1 page

F. Affidavit of Speech and Language Pathologist 3/3/2023 2 pages

G. Affidavit of Educational Director of Agency 3/6/2023 4 pages

H. Provider Credentials N/A 2 pages

I. Speech Therapy Contact 9/2/2022 1 page

J. Parent Outreach 9/1/2022 1 page

IHO EXHIBITS

1. Due Process Hearing Transcript 03/28/2023 44 pages IHO

2. Due Process Hearing Transcript 05/03/2023 43 pages IHO

3. Due Process Hearing Transcript APPENDIX 06/05/2023 24 pages IHO

Redacted Information Term Used In FOFD

Redacted Student

Redacted Parent(s)/Guardian(s)

Angela Lloyd & Philipe Parent

Gerschel Attorney/Representative

Tara Kennedy DOE Attorney/Representative

Redacted Private School

Redacted Service Providers

NYC Department of Department, DOE

Education

Redacted Educational Director of

Beyond Limits

Redacted Speech-Language Therapist

Footnotes

[1] The instant decision is being issued after the completion of the June 5, 2023, Transcript.

[2] 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]).

[3] Application of a Student with a Disability, Appeal No. 22-004.

[4] 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]).

[5] 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”).

[6] East Lyme Bd. of Educ., 790 F.3d at 454 (citation omitted).

[10] 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”).

[11] 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”).