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Special Education Law
DECISIONParent PrevailedIHO Case No. 242227

New York City Department of Education, Impartial Hearing Decision

February 28, 2023·Daniel Ajello·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 591415 – NYC: 242227

FINDINGS OF FACT AND DECISION

Case Number: 242227

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 01/23/2023

02/08/2023

Hearing Officer: Daniel Ajello Esq.

Actual Record Close Date: 2/27/2023

Decision Date: 2/28/2023 Hearing Officer‘s Finding of Fact & Decision

NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/23/2023

(All present by video or telephone)

[REDACTED], Attorney — Student

[REDACTED], — Parents

[REDACTED], Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 02/08/2023

(All present by video or telephone)

[REDACTED], Attorney — Student

[REDACTED], SETSS Provider — Student

[REDACTED], — Parents

[REDACTED], Attorney — DOE

Hearing Officer‘s Finding of Fact & Decision — DOE

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Exh. # Description Date Pages Entered 01/23/2013 A Request for Impartial Hearing 11/14/2022 4 Due Process Complaint (DPC) B Individualized Education Services Program (IESP) 04/14/2022 24 C Individualized education Program (IEP) 05/05/2022 33 D 3602c Letter 04/04/2022 1 E List of Special Education Teacher Support Service 8

(SETSS) Providers Contacted by Parent F [REDACTED] Resume 2

DEPARTMENT OF EDUCATION (DOE)

NONE

IMPARTIAL HEARING OFFICER

Entered 01/23/2023 I Notice of Appointment, 01/09/2023, 4 pages II Notice of Appearance, 01/10/2023, 1 page Entered 02/08/2023 III Resolution Agreement, 2/11/2023, 3 pages Entered 02/24/2023 IV Parent Closing Letter, 02/24/2023, 8 pages V DOE Closing Brief, 02/24/2023, 9 pages Hearing Officer‘s Finding of Fact & Decision

INTRODUCTION

On 01/09/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Appended to the record are lists of persons in attendance and the documents received in evidence.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

This matter was instituted by the impartial hearing request, of 11/14/2022. (Ex A)

Parent alleges:

- Failure to identify and provide a teacher capable of appropriately implementing the Individualized Education Program (IEP) and Individualized Services Program (IESP) for the 2022- 2023 school year. Upon information and belief, the DOE did not offer a SETSS teacher capable of implementing Student’s IEP/IESP for the 2022-2023 school year (Ex A 1);

- Student is twelve years old, classified by the New York City Department of Education’s Committee on Special Education (CSE) as student with Autism: diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Obsessive Compulsive Disorder (OCD); currently in seventh grade at [REDACTED] [REDACTED]; has significant writing and processing speed weaknesses; presents with significant deficits in the areas of fine motor skills, gross motor skills, sensory processing skills, pragmatic language skills, communication and language skills, social/emotional skills, and executive functioning skills; and in order to make measurable academic and social/emotional progress, Student requires SETSS and appropriate related services and supplemental services throughout the school day (Ex A 1);

- Student IESP and IEP recommend Student special education services (Ex B & C, Ex A 2);

- Parent contacted approximately 230 SETSS providers listed on the NYC DOE SETSS Providers

Directory for the 2022 summer, and for the 2022-2023 school year, but was unable to locate, secure, and identify an appropriate SETSS teacher to implement Student’s summer IEP or IESP; Hearing Officer‘s Finding of Fact & Decision

- The SETSS teachers were either unavailable, unqualified, no longer worked for the DOE, or did not respond to the parent’s inquiry;

- The parent subsequently contacted the CSE and advised that she had been searching for a SETSS provider since early July with no success; and

- Upon information and belief, the CSE did not identify or provide a SETSS provider capable of implementing Student’s IEP for the summer 2022, or his IESP for the 2022-2023 school year (Ex

A 2).

Parent seeks, as relief, which includes:

- DOE direct funding/reimbursement for fifteen hours per week of SETSS at the provider’s rate during the 2022-2023 12-month school year;

- We therefore request an order requiring the CSE to fund the SETSS program at the provider’s current rate, as the Department of Education has not offered or recommended a provider for these services, and upon information and belief, has no such staff with the appropriate qualifications available; and

- We further request the provision of compensatory SETSS at the provider’s rate for any services not provided during the 2022-2023 12-month school year; to be calculated on a 1:1 basis for all sessions missed. (Ex A 3)

POSITION OF THE PARTIES

Hearing commenced, and concluded, on 01/23/2013.

Parent seeks a specific number of SETSS hours sought, of 690, related to the 22-23 school year. (T 6)

The Student has not received any of the mandated hours, for the 22-23 school year. (T 6)

The Student is, however, receiving hours via a prior resolution agreement. (T 6)

Student is presently receiving about 17 hours weekly, of SETSS services, which Parent contends is appropriate. (T 14)

The DOE position included that a resolution offer was made to the Parents. (T 7)

The DOE also has no objection to the sought after 15 hours of weekly SETSS services. (T 8)

The DOE also claims there is no basis for compensatory relief. (T 14-15)

The IHO reminded the Parent that evidence would have to show the Student suffered some form of harm to then be entitled to compensatory services. Another Hearing date, of 02/08/2023, was scheduled, for the Parent’s case. (T 16-17 & 27)

Parent sought to support its case via Testimonial and Documentary Evidence as considered below.

Parent Attorney also provided a copy of the Resolution Agreement, referred to at Hearing, entered as IHO Ex III. Hearing Officer‘s Finding of Fact & Decision

This Agreement related to the 21-22 school year, and provided the Student with 690 SETSS sessions, to be utilized by 12/31/2024. (IHO Ex III 1)

The Agreement, this is the manner by which the Student’s SETSS services are currently being funded.

(IHO Ex III, T 36)

The DOE contends the Compensatory services, related to the 21-22 school year, should be counted towards the 22-23 mandated Student services. This would therefore alleviate the need for any relief, since the Student can utilize the compensatory services to obtain the 22-23 mandated services. (T 66-67)

This argument discounts the fact that the DOE could therefore avoid delivering any mandated 22-23 Student services by categorizing the compensatory services as currently mandated services, which they are not. (T 67-68)

The IHO noted that the hours being delivered are compensatory and cannot now be identified by the DOE as properly delivered 22-23 mandated services. Of course, the DOE could have agreed to fund the services being delivered as 22-23 services, and let the compensatory services remain available. This would have done away with the primary need for a Hearing, since the compensatory services are available through the end of 2024. (T 69-72, IHO Ex III)

[REDACTED], SETSS Provider

Witness Testimony included:

- A review of her qualifications and experience. (T 51-53);

- A review of Student needs and supports provided (T 53-54);

- A review of a typical SETSS session with the Student (T 55-56);

- SETSS services provided, for the Student are invoiced, then funded by the DOE, as compensatory services (T 56-57 & 76);

- SETSS provider, on average, is providing about 15 hours weekly (T 77-78);

- Student still is behind the average student, and still requires SETSS services to become independent at his grade level (T 59-60); and

- Student has made progress with the SETSS services provided. (T 60-61); and

- Witness believes the Student always required more than 15 weekly hours of SETSS. (T 78-79)

Witness Testimony confirmed the Student is receiving compensatory education services, and not the mandated IEP SETSS services, for the 22-23 school year.

[REDACTED], Parent

Witness Testimony included:

- A review of Student’s educational history which led to the need for special education services (T Hearing Officer‘s Finding of Fact & Decision

93-97);

- Student is utilizing the SETSS services agreed to via the Resolution Agreement (IHO Ex III), but fell short of obtaining the 15 weekly SETSS hours recommended, by about 178 hours thus far, this year (T 109);

- Student, despite receiving compensatory SETSS services remains two to three years behind his peers (T 111);

- Student has made progress via the SETSS services (T 112-113);

- Student received compensatory services related to the 21-22 school year (T 114); and

- Parent seeks to obtain the 22-23 SETSS services, totaling 690 hours, via a compensatory bank of hours. (T 115)

Parent Testimony confirms the Student’s need for SETSS services, and the Compensatory Services being delivered related to the 21-22 school year.

A Request for Impartial Hearing Due Process Complaint (DPC) 11/14/2022

Details allegations of a denial of FAPE, for the 22-23 school year, and sets out sought after relief.

B IESP 04/14/2022

Confirms Student entitlement to special education services, with a classification of Autism. (Ex B 1)

Recommended services include:

o Special Education Teacher Support Services (SETSS), Direct Service, Individual Service,

English,[15] periods per week;

o Counseling Services, Individual, English, 5 x 45 minutes weekly;

o Speech-Language Therapy, Individual Service, English, 2 x 45 minutes per week;

o Speech-Language Therapy, Group Service, English, 1 x 45 minutes per week;

o Occupational Therapy, Individual Service, English, 2 x 45 minutes per week;

o Occupational Therapy, Group Service, English, 1 x 45 minutes per week (Ex B 20); and o Paraprofessional. (Ex B 21)

C Individualized education Program (IEP) 05/05/2022

Confirms Student entitlement to special education services, with a classification of Autism. (Ex B 1)

Recommended services include:

o Special Education Teacher Support Services (SETSS), Direct Service, Individual Service, English, Hearing Officer‘s Finding of Fact & Decision o Speech-Language Therapy, Individual Service, English, 1 x 45 minutes per week; o Speech-Language Therapy, Group Service, English, 1 x 45 minutes per week;

o Occupational Therapy, Individual Service, English, 2 x 45 minutes per week; and o Occupational Therapy, Group Service, English, 1 x 45 minutes per week. (Ex C 27)

o 12 Month Services (Ex C 28)

D 3602c Letter 04/04/2022

Parent provides Notice to the District requesting special education services in writing to the school district:

- “I hereby request that the school district of location furnish my child with special education services during the 2022-2023 year, in accordance with applicable New York State law”;

- “I consent to the exchange of any necessary educational records and information by and between the school district of residence, the school district of location, and the non-public school”;

- “Please be advised that nothing in this letter is intended to waive any rights otherwise provided by law to either parents, or my child, including my right to seek tuition reimbursement/funding for a private placement and services, or my child's right to receive a free and appropriate public education for the 2022-2023 school year from the district of residence.” (Ex D 1)

E List of Special Education Teacher Support Service (SETSS) Providers Contacted by Parent

Parent attempts to locate a SETSS provider , for the Student, related to a list referred to as dated 06/15/2022.

F [REDACTED] Resume

Resume of Student SETSS provider,

Parties presented written closing arguments, as considered below.

Parent argues that:

- At its core, this is a case about the DOE’s egregious and repeated failure to implement [Student’s]

IEP and IESP, specifically, 1:1 SETSS, for fifteen hours per week, and to secure a SETSS provider capable of implementing those services. (See record generally) (IHO Ex IV 1-2);

- The DOE is responsible to implement a student’s IEP/IESP services (IHO Ex IV 2); and

- The Parents are entitled to funding for Student 22-23 SETSS services. (IHO Ex IV 3-4)

Parties do not dispute the Student’s entitlement to the SETSS services recommended, for the 22-23 school year.

Parent argues for Compensatory Education services: Hearing Officer‘s Finding of Fact & Decision

- The issue then becomes what level of service would put [Student] in the same position he would have occupied, but for the DOE’s failure to provide the mandated services. The burden of proof for this analysis lies with the DOE. (IHO Ex IV 5);

- Parent demonstrated that the DOE was required to provide fifteen hours of 1:1SETSS per week to [Student] during the 2022-2023 twelve-month school year. (Ex. B,C). [Student’s] mother credibly testified that these services have not yet been implemented and provided details regarding her significant difficulties with the DOE and its systemic and repeated failures to implement [Student’s] mandated and agreed upon 1:1 SETSS for fifteen hours per week. (Tr. 105-115; Ex.

E). (IHO Ex IV 6); and

- Based on a 12 month school year the Student has, to date, failed to received 485 hours of SETSS services. (IHO Ex IV 6-7)

Parent Attorney concludes: “The DOE made no attempt to refute the parent’s assertions as to the number of hours due and not provided. The DOE did not provide any testimonial or documentary evidence. They have abdicated their responsibility and failed to carry their burden of proof to provide an evidentiary record as to that level of service that would most reasonably and efficiently place {Student] in the position that he would have been but for the denial of a FAPE.” (Ex IV 7)

Parent Attorney requests a finding that Student: was entitled to fifteen hours per week of SETSS services from the DOE; that he is entitled to a compensatory bank of those services under the pendency provisions of the law; that those services are also the responsibility of the DOE under § 3602-c of the Education Law, and in the absence of any claim to the contrary by the DOE, a bank of fifteen hours per week at the provider's current rate or fair market value for the costs of a highly trained and appropriate SETSS provider, a total of 630 hours, be created to be used over of a minimum of three years and to be directly funded by the DOE and/or reimbursement to the parent for the costs of services provided upon proof of payment; in the alternative, we ask that the DOE be ordered to immediately implement the 1:1 SETSS for fifteen hours per week mandated in the IEP and IESP, at the provider’s current rate or fair market value for the costs of a highly trained and appropriate SETSS provider as of the date of the IHO's decision and provide a bank of 485 hours to be used over a minimum of three years and to be directly funded by the DOE and/or reimbursement to the parent for the costs of services provided upon proof of payment; and for such other and further relief as the Hearing Officer may deem just and proper” (IHO Ex IV 7-8 & T 44)

The DOE argues that:

- The Student is not entitled to an award of compensatory services, arguing that the Parent has not shown that compensatory relief and direct funding can and should be combined for the same school year; the IHO cannot enforce a Resolution Agreement; Compensatory Claim is not ripe, and speculative; therefor Parent’s claim must be denied (Ex V 1); Hearing Officer‘s Finding of Fact & Decision

-

The DOE argument fails for several reasons.

There is no requirement that compensatory relief be combined, or not, with direct funding of services.

The IHO is not enforcing the Resolution Agreement, which seems to continue to be utilized through the course of the Hearing.

Parent Compensatory Claim, though perhaps not entirely accurate, is certainly ripe. The DOE has been aware of the lack of delivery of Student services since at least the filing of the DPC, back on 11/15/2022. Evidence is not presented as to any effort by the DOE to deliver the services mandated in the relevant IEP. (Ex A & C)

The DOE argument, in part, is that the services agreed to in the Resolution Agreement (IHO Ex III), can be utilized for the services mandated in the IEP. (Ex B & C)

If that was the intent that could have been included in the Resolution Agreement. (IHO Ex III)

Additionally, if the intent was to usurp the IEP services with Resolution Agreement service, the DOE could have called for another IEP meeting to update the IEP with the information contained in the Resolution Agreement. (IHO Ex III)

Notably, the Resolution agreement obligates the SETSS provider to provide documentation and participate in IEP meetings, upon request of the CSE. (IHO Ex III 3)

Of course, this makes no sense since no Parent could not reasonably be expected to sign a Resolution Agreement that intended to resolve the failure to provide past services by removing the obligation to provide future services.

The DOE restates the law, generally, as it relates to compensatory services, correctly noting:

The purpose of compensatory relief is to provide an appropriate remedy for a deprivation of a FAPE.

See, e.g., E.M. v. New Yok City Dep’t of Educ., 758 F.3d 442,451 (2d Cir 2014). It is intended to place a student in the position they would be in had FAPE been provided. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 1998) (holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE). It is an equitable remedy that is tailored to meet the unique circumstances of each case. See Wenger v. Canastota, 979 F. Supp. 3 147, 151 (N.D.N.Y. 1997). This relief must be “designed to compensate the student for the district’s failure to offer the Student a FAPE.” Id.; See Reid v. Dist. of Columbia, 401 F.3d 516, 524 (DC Cir. 2005) (IHO Ex V 3-4) Hearing Officer‘s Finding of Fact & Decision The DOE argues that an award of compensatory relief, in this case, would be redundant. (IHO Ex V 4)

This argument fails for several reasons.

First, if there was indeed an award for compensatory services then the DOE would be able to use those services as a sword to deny services in the future. Instead the services should be considered in assembling any IEP which is in effect while the services are being delivered.

Second, and more importantly, there is no award of compensatory services for the Student. Parties have referred to the Resolution Agreement services as Compensatory, however, they are not compensatory services.

The Document utilized to deliver the Student services is entitled: Resolution Agreement, and contains no reference to compensatory services. (IHO Ex III)

The Agreement makes no reference to a particular school year, nor does it reference any particular

IEP. (IHO Ex III)

The Agreement cannot be used now to claim it is intended to usurp the services recommended for the 22-23 school year. (Ex B & C)

It is important to note that while the IEP mandate 15 weekly hours of SETSS (Ex B 20 & C 28), the Resolution Agreement allows up to 40 weekly hours of SETSS weekly. (IHO Ex III)

The document itself acknowledges that the services to be delivered are above and beyond those recommended in the IEP.

The DOE argues: “In this case, the parents do not allege that the IESP was insufficient, merely that they are seeking SETSS through a resolution agreement which they have concerns about how many hours the Student will receive during the 2022-2023 school year. There is no showing the student has suffered an actual deprivation of SETSS received as the student is receiving the SETSS that the parents and Department agree the student is entitled to.” (IHO Ex V 4)

This argument ignores the fact that: the DOE agreed that the Student requires 15 weekly hours of SETSS, unrelated to any Resolution Agreement; and the DOE has evidenced no act related to delivering the mandated IEP services. (Ex B & C)

The DOE argues the Parent’s claim is not ripe. (IHO Ex V 5-6)

However, the DOE continues to fail to act to implement the IEP services agreed to, and sought via the DPC. (Ex A & C)

The DOE argues the Parent claim for compensatory services must fail since the Parent has not yet retained services. However, this is not a case where the Parent sought outside services in contradiction to an IEP recommendation. This is a case where the DOE acted to recommend services, and took no action to enable access to those services. This results in a denial of FAPE. The DOE recommended services and refuses to deliver those services to the Student. (IHO Ex V 5, Ex B & C) Hearing Officer‘s Finding of Fact & Decision The DOE has been, since the development of the IEP, empowered to direct Parent to access the recommended services via an engaged provider, and instead has denied the Parent the Student services by arguing the Resolution Agreement is delivering the IEP services. (IHO Ex V 7-8).

The DOE argues that cost of services may be inflated, however, Parent claim is not based on a specific rate of service. The DOE can provide the services and do away with any question related to cost by negotiating services from a provider of the DOE choosing. (Ex A, IHO Ex III 7)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).

While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative 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. § Hearing Officer‘s Finding of Fact & Decision

1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 394 Fed. App'x 718, 720 [2d Cir. Aug. 16, 2010]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192).

A board of education must offer a free appropriate public education (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][1][A]; Educ. Law § 4402[2][a], [b][2]). However, 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]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the district of location 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]). "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]). In such circumstances, the district of location's CSE must review the request for Hearing Officer‘s Finding of Fact & Decision services 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][1]). 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]).

State guidance explains that providing services on an "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" ("Chapter 378 of the Laws of 2007 – 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 at p. 11, VESID Mem. [Sept. 2007], available at http://www.p12.nysed.gov/specialed/publications/policy/nonpublic907.pdf).

The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.).

Additionally, unlike the provisions of the IDEA, 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 provisions of Education Law § 4404 (id.).

Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district for the purpose of receiving special education programming under Education Law § 3602-c, services for which a public school district may be held accountable through an impartial hearing.

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (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]).

The district "'need not make FAPE available'" to a student who has been parentally placed in a private school in the district of location and who has been evaluated and provided with an IESP by the district of location.

While the statutory scheme of Education Law section 3602-c places the responsibility of selecting and placing the student in a nonpublic school on the parent, the implementation of the services called for by a student's IESP falls on the district 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 Hearing Officer‘s Finding of Fact & Decision school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). See, Application of Student with a Disability, SRO Appeal 16-008.

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. Id.

Additionally, unlike the provisions of the IDEA, 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. Id. 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]; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

While it may very well 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, it does not follow that the responsibility to redress a parents' inability to locate a provider is shifted permanently to the parent. See, Application of Student with a Disability, SRO Appeal 17-034.

REVIEW OF THE EVIDENCE

In this matter the DOE presents no evidence of any action taken to implement the Student’s IEP and the recommended services contained therein. (Ex B & C)

Parties do not dispute the recommendations contained in the IEP. (Ex B & C)

In this case, at no point during the impartial hearing did the District offer any evidence that it attempted to offer the Student a FAPE, for the 22-23 school year.

The DOE also failed to evidence any action to facilitate appropriate Student IEP services, for the 22-

23 school year. (Ex B & C)

As detailed above, the DOE argument that past Resolution Agreement does away with the obligation to provide the IEP/IESP services is not successful.

The district does not challenge that the parent is authorized to select a provider of her choosing.

The district does not explain why it did not simply schedule the mandated services as envisioned under the IEP and, in essence, inform the parent where and when the SETSS would be available, and at which time the parent would have the responsibility to produce the student in order to receive the services.

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 district had the obligation to provide services to the student in conformity with her IEP, or IESP (Educ. Law § 3602-c[2][a], [b][1]; see 20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see also 20 U.S.C. § 1414[d]; 34 CFR 300.320). Hearing Officer‘s Finding of Fact & Decision

In this case the DOE has not provided, or assisted in providing, services in accordance with the Student’s IEP. (Ex B & C)

Evidence is not presented to indicate the Parent in any way thwarted an effort of the DOE to offer the Student a FAPE, for the 22-23 school year.

I find the DOE failed to offer the Student a FAPE, for the 22-23 school year.

I find the evidence outlined above supports the necessity of the sought after Student services via District funding.

COMPENSATORY SERVICES

Parent seeks, as relief related to the DOE denial of FAPE, an award of SETSS service hours, to be utilized over time moving forward.

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).

The nature and extent of compensatory education services that courts have recognized varies according to the facts and circumstances of a given case; however, as a remedy that arises out of the equitable jurisdiction of 20 U.S.C. §1415, courts will craft compensatory education relief that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)(same); see, e.g., G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295 (4th Cir.

2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student.”); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(Noting that “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation.).

In determining a compensatory award, most courts seek to ascertain the child’s needs at the time the relief is sought. Reid, 401 F.3d 516; see, e.g., Streck, 2010 WL 4847481, at *2 (Court awarded compensatory education relief that required the school district to “open and maintain for 3 years, an Hearing Officer‘s Finding of Fact & Decision escrow account,” which will be used to pay for student’s reading instruction at Landmark College and assistive technology supports.); Woods v. Northport Pub. Sch., 487 Fed. Appx. 968, 2012 WL 2612776, at *978-79 (6th Cir. July 5, 2012) (upholding IHO award of 768 hours of compensatory tutoring as “reasonable recover” for a lengthy denial of FAPE; given the student’s age, the “window of opportunity to become usefully literate ha[d] begun to close.”).

If Student is found to be entitled to compensatory education under applicable law; compensatory education is an equitable remedy that arises out of the jurisdiction of 20 U.S.C. § 1415; equitable factors do not bar relief here and no inequitable conduct was established on the part of the parents. N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Dist. of City, No. 07 Cv. 9648 (BSJ), 2009 WL 874061 (S.D.N.Y. Mar. 31, 2009) (Reversing the SRO and upholding the award; Court found that it is well established that, in the absence of evidence demonstrating that the parents failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim for tuition.); Wolfe v. Taconic Hills Cent. Sch. Dist., 167 21 F.Supp.2d 530 (N.D.N.Y. 2001)( the equities—requires a balancing of both parties’ conduct and interest—not merely the actions of the parent). There are no facts established here that show that the parent failed to cooperate or acted inequitably to interfere with the DOE’s ability provide FAPE.

The IDEA does not explicitly require that a district proactively provide compensatory services. However, the obligation arguably is implicit in the IDEA's FAPE mandate. The IDEA obligates districts to ensure students with disabilities receive an "appropriate" education. 34 CFR 104.33. Per the U.S. Supreme Court, FAPE requires that a district develop 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, 69 IDELR 174 (U.S. 2017).

It seems reasonable that, under the IDEA's FAPE standard, a district has an obligation to provide compensatory services to make up for the services it failed to implement to ensure the student continues to receive FAPE. The IDEA requires a district to implement a student's IEP with all required components. 34 CFR 300.323 (c).

In this case the evidence is clear that the DOE did not implement its own recommended services, specifically 15 weekly hours of SETSS. (Ex B & C)

A FAPE has already been found to have been denied the Student for the 22-23 school year.

This, in part, is due to the lack of any action, by the DOE, since development of the 22-23

IEP/IESP. (Ex B & C)

Parent Attorney argues correctly:

- the parent has demonstrated that the DOE was required to provide fifteen hours of 1:1 SETSS per week to Student during the 2022-2023 twelve-month school year. (Ex. B, C); and

- Student’s mother credibly testified that these services have not yet been implemented and Hearing Officer‘s Finding of Fact & Decision provided details regarding her significant difficulties with the DOE and its systemic and repeated failures to implement Student’s mandated and agreed upon 1:1 SETSS for fifteen hours per week. (Tr. 105-115; Ex. E) (IHO Ex IV 6)

Parent Attorney reasonably assembles a basis for SETSS hours due the Student, related to the DOE denial of FAPE:

- Student’s twelve-month school year consists of 210 days, which is equivalent to forty-two weeks of school and/or services. As [Student’s] IEP (for summer services 7/1/2022-

8/12/2022) and IESP (for the remainder of the 2022-2023 SY) mandates fifteen hours of 1:1 SETSS per week, to date, the DOE has failed to provide 485 hours of SETSS for the school year at issue. (Ex. B, C);

- Student currently has a mandate of fifteen hours of 1:1 SETSS per week going forward, until such time as another IESP changes that mandate;

- The DOE made no attempt to refute the parent’s assertions as to the number of hours due and not provided;

- The DOE did not provide any testimonial or documentary evidence;

- They (The DOE) have abdicated their responsibility and failed to carry their burden of proof to provide an evidentiary record as to that level of service that would most reasonably and efficiently place [Student] in the position that he would have been but for the denial of a

FAPE. (IHO Ex IV 6-7)

Parent evidences a reasonable basis for award of compensatory services, in light of the DOE failure, as detailed below. Essentially, Parent does not want the Student to suffer the loss of mandated services due to the inaction of the DOE.

Therefore, I find it appropriate to award Compensatory Services, as Ordered below.

I note that, currently the DOE is providing some SETSS services via a Resolution Agreement.

The DOE could have, and still can, fund the SETSS services provided in accordance with the IEP (15 hours weekly – Ex B & C), as currently appropriate IEP services.

If the DOE had done this at the start of the 22-23 school year, this case would not be necessary.

Instead, the DOE attempted to utilize the Resolution Agreement to thwart the Student from obtaining the 22-23 recommended services hours. This essentially would have made the Resolution Agreement worthless. (IHO Ex III)

The Student has indeed suffered a loss in being denied, and continuing to be denied, services recommended via valid IEPs. (Ex B & C)

The denial of FAPE is not a minor act of the DOE. The DOE has failed to implement its own recommendation. The DOE also takes the position that it does not need to adhere to the IEP in effect, which they could seek to amend at any time. The DOE argument that it can deny FAPE unilaterally, and Hearing Officer‘s Finding of Fact & Decision avoid any potential claim by the Parent is not valid. A denial of FAPE, especially in this case where it is purposeful, and continuous, cannot be left without a remedy.

"In enacting the IDEA, Congress did not intend to create a right without a remedy." Streck v. Bd.

of Educ. of the E. Greenbush Cent. Sch. Dist., 408 F. App'x 411, 415 (2d Cir. 2010) (internal citation removed). "The IDEA allows an IHO or SRO to fashion an appropriate remedy for students not provided a FAPE, and the Second Circuit has held that compensatory education is an available remedy under the IDEA to make up for denial of a FAPE." M.M. v. New York City Dep't of Educ., No. 15-CV-05846, 2017 U.S. Dist. LEXIS 47812, 2017 WL 1194685 (S.D.N.Y. Mar. 30, 2017).

Such compensatory education "must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place." Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015) (quoting Reid ex rel.

Reid v. District of Columbia, 401 F.3d 516, 524, 365 U.S. App. D.C. 234 (D.C. Cir. 2005)).

In some situations, where the record reflects that "the alleged deficiencies suffered by the student have already been mitigated (or even totally alleviated)," an award of compensatory education may not be required. See Doe by & through Doe v. E. Lyme Bd. of Educ., No. 11-CV-00291, 2020 U.S. Dist.

LEXIS 226464, 2020 WL 7078727 (D. Conn. Dec. 3, 2020).

The DOE has taken no steps to adhere to the IEP, in effect for the 22-23 school year.

In this case the Parties agree that the Student requires the services sought, and the Parent requires a means by which to access the services.

The DOE shall authorize funding of 690 hours of SETSS for the Student, as indicated in the Student’s 22-23 IEP/IESP. (Ex B & C)

Since the DOE is unable, and unwilling, to implement the IEP, the Parent shall be able to choose their own SETSS provider at reasonable market rate.

Parent will have through 06/30/2024 to utilize the awarded services, for the Student.

Hearing Officer‘s Finding of Fact & Decision

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE, for the 12 month, 22-

23, school year.

2. The DOE failed to facilitate mandated Student services for the 22-23 school year.

3. The DOE shall fund the following Student services, for the entire 22-23 school year, at reasonable market rate, via Parent chosen provider(s) as follows:

o 690 hours of Special Education Teacher Support Services (SETSS), Direct Service, English, up to 15 hours weekly.

4. The Parent shall have until 06/30/2024 to utilize the above services.

5. This decision is subject to appeal and review by the State Review Officer.

DATED: February 28, 2023

DANIEL AJELLO

DANIEL AJELLO

Impartial Hearing Officer Hearing Officer‘s Finding of Fact & Decision

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.

.

Footnotes

[15] periods per week; o Counseling Services, Individual, English, 5 x 45 minutes weekly;