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CASE NUMBER: 590818 -NYC: 241728
NEW YORK CITY DEPARTMENT OF EDUCATION
IMPARTIAL HEARING OFFICE
STUDENT, by and through his/her PARENT(S),
Petitioner(s),
- against -
THE NEW YORK CITY DEPARTMENT OF EDUCATION,
Respondent.
Record Close Date: 04/21/23
FINDINGS OF FACT AND DECISION
HASHIM RAHMAN, Hearing Officer:
The Petitioners are the parents of a Student who requires special education services. (See Pet’rs’ Ex. A at 3.) On November 4, 2022, the Petitioners filed a due process complaint against the New York City Department of Education (“DOE” or Respondent). (See id at 15.) In the Complaint, the Petitioners assert that the DOE denied the Student a free and appropriate publication education (or “FAPE”) by, inter alia, failing to develop an appropriate educational program for the 2020-2021, 2021-2022, and 2022-2023 school years. (Id. at [1]; see also, the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq.) The Petitioners also assert that the DOE violated Section 504 of the Rehabilitation Act of 1973. (Pet’rs’ Ex. A at 1.) They contend that the DOE applied blanket policies to decisions about the Student’s education. (Id. at 13.)
THE DUE PROCESS COMPLAINT
The Complaint states that for the 2020-2021 school year, the DOE recommended the Student to receive special education itinerant teacher (“SEIT”) services for five hours per week and occupational therapy (“OT”) twice per week for thirty minutes. (Pet’rs’ Ex. A at 3.) The Petitioners were informed that the said level was the maximum available OT. (Id.)
For the 2021-2022 school year, the DOE recommended the same levels of SEIT and OT but on a ten-month basis. (Id. at 4.) The Petitioners expressed concerns regarding the lack of support. (Id.) In February of 2022, the Petitioners obtained [private] applied behavior analysis (“ABA”) services through their insurance. (Id. at 5.)
For the 2022-2023 school year, the DOE recommended “ICT [or integrated co-teaching] for 25 periods per week,” general education services, OT twice per week, and parent counseling and training. (Id. at 6.) However, the Petitioners placed the Student in a Private School. (Id. at 7.) As asserted, they arranged for the insurance-funded ABA team to push into the school, and they have had to pay for a floortime therapist. (Id. at 7.) It is contended that the “combined program of SEIT and related services as pendency, and ABA and Floortime, along with the smaller class size and intensive teacher ratio should be appropriate.” (Id.)
The Complaint states that the Petitioners are “asking for the DOE to fund the tuition portion of this program, along with the pendency services and any additional 1:1 services and ABA that they need to fund but which would not be covered by their insurance.” (Id. at 8.) The Complaint further states, “To the extent the program is not appropriate, the Parents are seeking compensatory education.” (Id.) The Complaint also states that the Petitioners “disagree with the evaluations and reevaluations conducted” and they contend that the DOE should fund an independent educational evaluation (“IEE”). (Id.)
THE DUE PROCESS HEARING
I. Facts and Assertions by the DOE At the hearing, the DOE did not present any documents or witnesses. (See Hr’g Tr. 54.) However, counsel argued that the relief requested by the Petitioners should be denied as they failed to present sufficient evidence of payment obligations for services. (Id. at 176-177.)
II. Facts and Assertions by the Petitioners The Petitioners presented twenty-six documents (see App.) and two witnesses (see Hr’g Tr. 115). The Petitioners asserted that a FAPE was not provided for the three years at issue because, inter alia, the DOE developed inadequate Individualized Education Programs (“IEPs”). (Hr’g Tr. 48-51.) The Petitioners also asserted that they are entitled reimbursement for costs relating to OT, reimbursement of co-payments paid for ABA therapy, and reimbursement for the costs of “the private diagnostic assessment conducted.” (Id. at 52.) They further request compensatory education in the form of SEIT, ABA services, and OT. (Id. at 52, 190-191.) Lastly, the Petitioners also seek reimbursement for an evaluation and funding for an independent evaluation. (Id. at 190, 197.)
The Parent testified that she agreed with the evaluation conducted by the DOE in 2020. (Id. at 122.) She added that she did not agree with the services the DOE thought the Student needed. (Id.) She said the DOE recommended five hours per week of SEIT plus OT twice per week, she asked the DOE “if [the Student] could get a little bit more SEIT and OT . . .” (Id. at 123.)
The Parent also said that she found a “great” Private School for the Student. (Id. at 125.) The said Private School was, it seems, one of three private institutions that the Student attended. (See id. at 122, 124-125, 137-138.) The IEP presented by the Petitioners indicates that the Student was to receive services in a “District 1-32” non-specialized school for the 2022-2023 year. (Pet’rs’ Ex. C.) In relation to this, the Parent said that the Student was not offered a public school placement. (Hr’g Tr. 133.) She also said that she considered public school enrollment twice, once when a private school said the Student was not a good fit, and another time when services were deemed at risk because the Private School was located outside New York City. (Id. at 139.) She also said that the Student did not receive services while he was at home between the said [private] placements. (Id. at 125.)
The SEIT Provider testified that she has been working with the Student for two years in the Private School. (Id. at 150.) She said she has been providing the Student with SEIT five days a week for one hour per day; and he has made progress. (Id. at 151, 160.) She said that she is not aware of the existence of any contract between the agency she works for and the Petitioners. (Id. at 166.)
ANALYSIS
I. General Legal Framework for FAPE Claims Under the IDEA, an educational agency must offer a free and appropriate public education (“FAPE”) to each student with a disability residing in the state. 20 U.S.C. § 1412(a)(1)(A). The IDEA defines FAPE as “special education and related services that have been provided at public expense, under public supervision and direction, and without charge . . .” that meet state standards and are provided in conformity with IEP requirements. 20 U.S.C. § 1401(9). Congress enacted the IDEA "to ensure that all children with disabilities have available to them a free appropriate public education" and "to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d)(1)(A), (B). A FAPE should emphasize “special education and related services designed to meet [a disabled child's] unique needs and prepare [the child] for further education, employment, and independent living." Id. § 1400(d)(1)(A).
When addressing whether a FAPE was provided, two factors should be considered: 1) whether the IEP was developed according to the IDEA’s procedural requirements, and 2) whether the educational plan set forth in the IEP was reasonably calculated to confer a substantive educational benefit on the student. See Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982)). Under the IDEA, if procedural violations are alleged, a hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(ii). The school district bears the burden of proving that it provided a FAPE to the Student. See EDUC. L. § 4404(1)(c).
a. Tuition Reimbursement
If a FAPE has not been provided to a child with a disability, a parent may unilaterally place that child in a private school or program and seek an award for reimbursement from the school district. 20 U.S.C. § 1412(a)(10)(C)(ii); see also, Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985) ("Burlington"); Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12 (1993) ("Carter"). The determination of whether a parent is entitled to reimbursement is based on the three-prong Burlington/Carter test, "which looks to (1) whether the school district's proposed plan will provide the child with a free appropriate public education; (2) whether the parents' private placement is appropriate to the child's needs; and (3) a consideration of the equities." C.F. ex rel. R.F. v. N.Y.C. Dep't of Educ., 746 F.3d 68, 73 (2d Cir. 2014).
b. Compensatory Education
A parent may also request compensatory education for a deprivation of FAPE. Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. Wenger v. Canastota Cent. School Dist., 979 F. Supp. 147, 151 (N.D.N.Y. 1997) “Compensatory education is prospective equitable relief” that seeks to remedy earlier deprivations in the child’s education. Somoza v. N.Y.C. Dep't of Educ., 538 F.3d 106, 109 n.[2] (2d Cir. 2008). 2 “Where the parent has not unilaterally enrolled a child in a private school, and thus does not seek retroactive reimbursement, the child may be entitled to compensatory education.” IndividuallyM v. Kingston City Sch. Dist., 1:14-CV-0542 (GTS/DJS), at *29 (N.D.N.Y. Nov. 23, 2015). Compensatory education has been awarded to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See In re of Board of Educ of City School Dist, 16 A.D.3d 1142, 1143 (N.Y. App. Div. 2005) (finding it proper for an SRO to order a school district to provide "make up" services to a student upon the school district's failure to provide those educational services to the student during home instruction); Application of a Student with a Disability, Appeal No. 09-111, 109 LRP 76689 (Nov. 20, 2009) (adding summer reading instruction to an additional services award).
II. FAPE
Before addressing relief, it is necessary to determine whether FAPE was provided to the Student. In the case here, the DOE did not present any documents, witnesses, or arguments on the issue of FAPE. On account of this, I find that the DOE has failed to meet its burden of proof and it has failed to demonstrate that a FAPE was provided during the school years at issue. This means that the Petitioners’ general contention that the DOE did not design or provide adequate educational programs for the years at issue shall be accepted as true.
III. Compensatory Education Relief The Petitioners have requested compensatory education in the form of SEIT, ABA hours, and OT hours. (Hr’g Tr. 52, 190-191.) The Petitioners propose that the Student receive twentyfive hours per week of ABA services for each year FAPE was not provided. (Id. at 190.) The Petitioners also seek compensatory OT for the lack of “sufficient therapies received by the Student” during the years at issue. (Id. at 191.) The Petitioners make no specific proposal regarding compensatory SEIT. (See id. at 52, 190-191.) The Petitioners were also asked to quantify any hours of missed services for each year at issue when presenting their proposal for compensatory education (id. at 146); yet that was not sufficiently done here (see id. 115-198.).
Notwithstanding all this, I find compensatory education to be an unwarranted remedy for this. The Student has never attended public school. Rather, he has enrolled in several private educational programs (see id. at 122, 124-125, 137-138.), and he is seeking compensatory education while continuing at current Private School. [3]
The Third Circuit has held that “compensatory education is not an available remedy when a student has been unilaterally enrolled in private school.” P.P. ex rel. Michael P. v. West Chester Area School District, 585 F.3d 727, 739 (3d Cir. 2009). In its decision, the court emphasized that “record shows that [the student] has never been enrolled in public school. Therefore, compensatory education is not an available remedy.” Id. at 740. The Second Circuit has not explicitly ruled as such; however, the New York district court in Individually M v. Kingston City Sch. Dist. seemed to adopt this principle in holding that compensatory education is a remedy available for students not unilaterally enrolled in a private school. 1:14-CV-0542 (GTS/DJS) at *29.
In the present case, the Student has been unilaterally placed in private programs. (See id. at 122, 124-125, 137-138.) Furthermore, the Parent said that public school was only considered twice, once when a private school said he was not a good fit, and another time when services were deemed at risk because the Private School was located outside New York City. (Id. at 139.) In P.P. ex rel. Michael P, compensatory education was deemed unavailable where a student has never enrolled in public school. That principle should apply here where the Student has been unilaterally placed in private programs and has never attended public school.
It should further be noted that compensatory education is a fact-based remedy tailored to meet the unique circumstances of each case. In the case here it is difficult to understand how compensatory ABA and SEIT services would place the Student into a position that he would have been if the services had been provided when such services were received privately during the years at issue. (See Hr’g Tr. 129, 150.) It is also difficult to understand how compensatory OT services would place the Student in a beneficial position as the Petitioners failed to quantify any missed or deficient services. (See id. at 146.) All this makes compensatory education an especially unsuitable remedy here.
IV. Reimbursement and Funding Relief Although the Complaint states that the Petitioners are seeking funding for the tuition portion of the program at the Private School, this was not asserted at the hearing. (See id. 115-198.) In fact, the Parent specifically said that she is paying for the Private School out-of-pocket and she is not seeking a reimbursement for that. (Id. at 138.) However, at the hearing the Petitioners did request out-of-pocket costs related to OT and ABA therapy.
To justify reimbursement of costs associated with privately-obtained educational services, the Petitioners must prove that the unilateral placement in such services was appropriate as per the the second prong of the Burlington/Carter test. See EDUC. L. § 4404(1)(c). The appropriateness of placement hinges on whether it is "reasonably calculated to enable the child to receive educational benefits." Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006), (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)). “No one factor is necessarily dispositive in determining whether parents' unilateral placement” is reasonably calculated to confer educational benefits to the child. Id. at 364-365. To qualify for reimbursement a parent “need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child . . .” Id., (quoting Rowley, 458 U.S. at 188-89).
Here, the Petitioners did not present any testimony of the ABA provider that it used. It also did not provide any testimony of an OT professional. The Petitioners also did not provide testimony by the Private School to show how such services fit within the curriculum. On account of this, I find that the Petitioners have not demonstrated that the services for which they seek reimbursement were appropriate under Burlington/Carter standard. Thus, reimbursement or funding for such services is not warranted here.
V. Evaluations The Petitioners also seek reimbursement for an evaluation and funding for an independent evaluation. (Hr’g Tr. 190, 197.) Under 34 CFR § 300.502(b)(1) and 8 N.Y.C.R.R. § 200.5(g)(1), parents do have the right to have evaluations conducted at public expense if they express disagreement with an evaluation conducted by the school district. Here, the Petitioners presented no evidence of any disagreement with a DOE evaluation expressed prior to the commencement of this action. (See App.) In fact, the Parent testified that she agreed with the evaluation conducted by the DOE. (Hr’g Tr. 122.) Thus, reimbursement or funding for any evaluations is unwarranted and denied.
VI. Section 504 Claims Section 504 provides that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). To state a prima facie violation of Section 504, a plaintiff or petitioner must show that “(1) he is a ‘[disabled] person' under the Rehabilitation Act; (2) he is ‘otherwise qualified' for the program; (3) he is excluded from benefits solely because of his [disability]; and (4) the program or special service receives federal funding.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840-41 (2d Cir. 2014) (alterations in original) (quoting Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990)). Exclusion may take the form of disparate treatment, disparate impact, or failure to make a reasonable accommodation.[4] B.C. ex rel. J.C. v. Mount Vernon Sch. Dist., 837 F.3d 152, 158 (2nd Cir. 2016). Furthermore, claims under Section 504 require a showing of bad faith or gross misjudgment on the part of an administrator of services. See Scarsdale Union, 744 F.3d at 840-841.
Here, the Petitioners did not even attempt to make a prima-facie showing that the Student was excluded from benefits solely due to a disability. In fact, Section 504 was not even mentioned at the hearing. (See Hr’g Tr. 41-113.) As such, claims under Section 504 are denied.
CONCLUSION AND ORDER
I find that the Student was denied a FAPE for the three school years at issue. However, I find that the compensatory and reimbursement/funding relief requested by the Petitioners is unwarranted under the circumstances of this case. Accordingly, all claims for relief are hereby denied in full.
Dated: 04/21/23 SO ORDERED
HASHIM RAHMAN,
HEARING OFFICER
Sent via Email to All Parties
APPENDIX A – EXHIBITS BY PETITIONER
A. Exhibit Description Date Pages Due Process Complaint 9/8/2022 19 pages
B. Petitioner's Motion to Compel Production of Records 1/26/2023 59 pages
C. Motion for Interim Order for Independent Evaluation 1/31/2023 104 pages
D. All Children’s Therapy Annual Review OT Progress Report 1/31/2022 2 pages
E. SE Report 2/14/2023 3 pages
F. SEIT Annual Review Progress Report 1/20/2022 3 pages
G. Comprehensive Psychological Evaluation 2/1/2022 6 pages
H. Early Childhood Learning Center Letter and Preschool Student Evaluation Summary Report 1/28/2021 52 pages
I. CPSE IEP 2/16/2021 21 pages
J. ABA Treatment Request 2/18/2022 17 pages
K. New York State Teach System 2/14/2023 2 pages
L. NYC DOE Vendor Invoice Form 10/4/2022-2/1/2023 5 pages
N. M SEIT Session Notes- 9/13/2022- 6 2/5/2023 Receipt 03/29/2022 1 page
O. Receipt 05/18/2022 1 page
P. Receipt 05/12/2022 1 page
Q. Receipt 05/04/2022 1 page
R. Receipt 04/06/2022 1 page
S. Affidavit of BCBA 03/27/2023 3 pages
T. Affidavit of Rates 03/28/2023 2 pages
U. Rate Schedule 2023 2023 1 page
V. Affidavit of Rates 02/13/2023 3 pages
W. Invoices 04/06/2022 05/04/2022 05/18/2022 03/29/2022 1 page
X. Email RE: request for new IEP 03/28/2022 4 pages
Y. ABA Patient Responsibility Invoice 03/24/2023 15 pages
Z. Evaluation Invoice 02/02/2022 1 page
APPENDIX B – TERMS AND REFERENCES [INTENTIONALLY OMITTED]
Footnotes
[1] Personally-identifiable information has been removed from this decision but is shown in the appendix.
[2] More specifically, the Somoza court stated, “Compensatory education is prospective equitable relief, requiring a school district to fund education beyond the expiration of a child's eligibility as a remedy for any earlier deprivations in the child's education.” (Internal quotations omitted.) The expiration of a child’s eligibility is not at issue here.
[3] In fact, the only times at which OT and SEIT services were not provided when the Student was at home and not attending one of the described private school programs. (See Hr’g Tr. 125.)
[4] The hallmark of a reasonable accommodation is effectiveness. See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002) (“It is the word ‘accommodation,’ not the word ‘reasonable,’ that conveys the need for effectiveness.”). The accommodation need not be perfect and it need not be one that is strongly preferred by a plaintiff or petitioner, but it still must be effective. Noll v. Int'l Bus. Machs. Corp., 787 F.3d 89, 95 (2d Cir.2015). Given the “fact-specific” nature of the question of whether a measure to accommodate a student's disability is a reasonable accommodation, this determination “must be made on a case-by-case basis.” Wernick v. Fed. Reserve Bank of N.Y., 91 F.3d 379, 385 (2d Cir.1996)