Skip to main content
Special Education Law
DECISIONParent PrevailedIHO Case No. 244422

New York City Department of Education, Impartial Hearing Decision

February 2, 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.

FINDINGS OF FACT AND DECISION

Case Number: 244422

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 01/30/2023 Pendency Hearing

02/02/2023

Hearing Officer: Daniel Ajello Esq.

Actual Record Close Date: 02/02/2023

Decision Date: 02/02/2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/30/2023

(All present by video or telephone)

For the Student: [REDACTED], Advocate

For the Department of Education: NONE

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

(All present by video or telephone)

For the Student: [REDACTED], Advocate

For the Department of Education: NONE

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Entered 01/30/2023

  1. Due Process Complaint (DPC), 01/02/2023, 4 pages
  2. Individualized Education Services Program (IESP), 09/23/2022, 10 pages

DEPARTMENT OF EDUCATION (DOE)

NONE

IMPARTIAL HEARING OFFICER

Entered 01/30/2023

I Notice of Appointment, 01/17/2023, 4 pages

II Consolidation Order, 01/17/2023, 3 pages

Entered 02/02/2023

III Pendency Order, 01/30/2023, 7 pages

INTRODUCTION

On 01/17/2023, 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.

Parent requested a determination of the Student’s Pendency during the proceedings. (Ex A 2)

Hearing to determine Student Pendency was held on 01/30/2023. The DOE did not appear.

Hearing continued, and concluded, on 02/02/2023. The DOE did not appear at this Hearing.

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 01/02/2023. (Ex A)

Pendency placement was found to exist in the IESP, of 09/23/2022, which contained:

  • Special Education Teacher Support Services (SETSS), Direct Service, Group Service,

[REDACTED], 3 periods per week; and

  • Speech-Language Therapy, Individual Service, [REDACTED], 2 x 30 minutes per week.

(IHO Ex III 6, Ex B 7)

Parent alleges:

  • For the 2022-2023 school year, the District failed to offer the student a program of special education services and supports to address his documented disabilities;
  • The District failed to offer the student with all the recommended services for the 2022-2023 school year;
  • Therefore, the District’s failure to provide the student with an appropriate program of services was not in compliance with NYS Education Law and denied the student the right to equitable special educations services;
  • For the 2022-2023 school year, the District failed in their statuary burden to implement the student’s mandated SETSS and Related Services with a certified SETSS and Related Service providers;
  • The District shifted the burden of implementation onto the parent, failing to provide the student with SETSS and Related Service providers and expecting the parent to find providers on her own;
  • The parent, having no other recourse, exerted extensive efforts to find SETSS and Related Service providers to service the student’s mandate services at the regular DOE-published rates (Ex A 1);
  • Despite the efforts, the parent was unable to procure SETSS and Related Service providers

for the school year (Ex A 1-2);

  • The Parent was forced to implement the services on her own by utilizing the services of an agency at an enhanced rate;
  • This issue is not new to this school year;
  • During the past two school years, the DOE has failed to ensure that the full complement of mandated services was implemented and provided per the child’s IESP program, resulting in lost services for the Student. (Ex A 2)

Parent seeks, as relief, DOE funding of services, indicated in the last IESP (Ex B), and an award of Compensatory Services for any missed sessions for the 22-23 school year. (Ex A 4)

POSITION OF THE PARTIES

The DOE failed to appear at either Hearing date for this Student.

The DOE failed to evidence any action taken to offer the Student a FAPE, for the 22-23 school year.

The DOE failed to evidence any effort to implement or otherwise facilitate appropriate Student services, for the 22-23 school year.

Parent Advocate relied upon the evidence submitted. (Ex A & B) That Evidence is found to be credible, and supportive of the Parent’s case. This includes the DPC and an IESP mandating appropriate Student services. (Ex A & B)

A Request for Impartial Hearing Due Process Complaint (DPC) 01/02/2023

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

B IESP 09/23/2022

Confirms Student entitlement to special education services, with a classification of Speech or Language Impairment. (Ex B 1)

Recommended services include:

    • Special Education Teacher Support Services (SETSS), Direct Service, Group Service,

[REDACTED], 3 periods per week; and

    • Speech-Language Therapy, Individual Service, [REDACTED], 2 x 30 minutes per week.

(Ex B 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. § 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 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 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 defending against the allegations contained in the DPC.

Evidence supports continuing Student services, as indicated in most recent IESP. (Ex B)

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 services, for the 22-23 school year.

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 IESP 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).

I find the Student is entitled to receipt of the services most recently recommended, at the IEP meeting of 09/23/2022. (Ex B)

I find the DOE failed to offer the Student a FAPE for the 22-23 school year and failed to act to implement appropriate Student services for the Student, for the 22-23 school year.

Evidence is not presented to indicate the Parent in any way thwarted an effort of the DOE to offer the Student a FAPE.

Evidence is not presented to indicate the parent in any way thwarted any effort by the DOE to deliver Student services, 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

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.10 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 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.

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 IESP, of 09/23/2022. (Ex B) The DOE has also not evidenced any response to the DPC, and has failed to appear at either Hearing date.

Parent evidences a reasonable basis for award of compensatory services, in light of the DOE failure, as detailed above. 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.

The DOE shall authorize funding of any Student services not utilized, for the 22-23 school year.

Parent will have through 12/31/2023 to utilize any such services, for the Student.

ORDER

  1. The Department of Education (DOE) failed to offer the Student a FAPE, for the 22-23 school year.
  2. The DOE failed to facilitate mandated Student services for the 22-23 school year
  3. The DOE shall fund Student services, for the entire 22-23 school year, at reasonable market rate, via Parent chosen provider(s) as follows:
    • Special Education Teacher Support Services (SETSS), Direct Service, Group Service,

[REDACTED], 3 periods per week; and

    • Speech-Language Therapy, Individual Service, [REDACTED], 2 x 30 minutes per week.
  1. The DOE shall authorize, and fund any Student services, as detailed above, not utilized, by the Student, for the 22-23 school year; and Parent will have through 12/31/2023 to utilize any such services, for the Student.

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

DATED: FEBRUARY 2, 2022

DANIEL AJELLO

DANIEL AJELLO

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.

.