New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 595715 - NYC: 245415

FINDINGS OF FACT AND DECISION

Student’s Name: 1 [REDACTED] (“Student”)

Date of Birth: [REDACTED]

School District: [REDACTED]

Hearing Requested by: [REDACTED] (“Parent”)

Request Date/Date Complaint Filed: January 30, 2023

Date(s) of Hearing: March 14, 2023

May 8, 2023

June 21, 2023

June 22, 2023

August 2, 2023

August 16, 2023

August 22, 2023

Actual Record Closed Date: September 7, 2023

Date of Decision: September 28, 2023

Date of Distribution if Different than Decision Date: N/A Hearing Officer: Katia Mehu

1 Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

NAMES AND TITLES OF PERSONS WHO APPEARED

March 14, 2023:

For the Student:

[REDACTED], Advocate

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

May 8, 2023:

For the Student:

[REDACTED], Advocate

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

June 21, 2023:

For the Student:

[REDACTED], Advocate

For the Department of Education:

[REDACTED], District Representative

[REDACTED], District Representative (Observer)

NAMES AND TITLES OF PERSONS WHO APPEARED

June 22, 2023:

For the Student:

[REDACTED], Advocate

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], District Representative

[REDACTED], District Representative (Observer)

NAMES AND TITLES OF PERSONS WHO APPEARED

August 2, 2023:

For the Student:

[REDACTED], Advocate

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

August 16, 2023:

For the Student:

[REDACTED], Advocate

[REDACTED], Administrator, [REDACTED]

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

August 22, 2023:

For the Student:

[REDACTED], Advocate

[REDACTED], Administrator, [REDACTED]

For the Department of Education:

[REDACTED], District Representative

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (IHO) on Parent’s Due Process Complaint (DPC) filed on or about January 30, 2023, on behalf of [REDACTED] (Student), for the 2022-2023 school year. (Parent Exh. A-1) ^[2]. Parent filed the complaint against the New York City Department of Education (DOE, District, or CSE).

The undersigned was appointed on February 6, 2023. The matter proceeded directly to a pendency hearing at Parent’s request. The pendency hearing was held on March 14, 2023. Parent was represented by [REDACTED]. DOE was represented by [REDACTED], Consultant Impartial Hearing Representative, Special Education Unit, Office of the General Counsel, NYC Department of Education. District contested pendency on the basis that it had extended a resolution offer to fully settle the dispute on March 9, 2023. (RT 03/14/2023, at 4, 8-9.) District also based its opposition on the estoppel doctrine, contending Parent had not requested equitable services for Student by June 1, 2022, as required by statute. (Id. at 8-9.) District also argued that the IESP was outdated. (Id.) The parties made their record orally and later submitted briefs outlining their respective positions. (IHO-I–III.) Thereafter the matter proceeded to the proffer of evidence in support of a request for pendency. (RT 03/14/2023, at 12-13.) A list of the documentary evidence submitted and admitted into evidence is appended to this Final Decision and Order (FOFD). Parent’s reply brief in support of pendency was submitted on May 25, 2023, and a pendency order was issued on June 12, 2023, granting Parent’s request for pendency.

The pendency hearing was followed by one status conference, which occurred on May 8, 2023. The matter was set for a merits hearing to convene on June 21, 2023. (TR 05/08/2023, at 44.) Thereafter, on June 8, 2023, Parent proposed, via email, that the entire matter be resolved with an order providing Student a bank of compensatory education services as a remedial measure for not having provided Student with equitable services during the 2022-2023 school year. (IHO-IV-2, Parent Proposed Resolution.) The District expressed a preference for proceeding with the merits hearing. (Id.)

The merits hearing convened on June 21, 2023; June 22, 2023; August 2, 2023; August 16, 2023; and August 22, 2023. On June 21, 2023, the first day of the merits hearing, Parent was represented by [REDACTED]. The DOE was represented by [REDACTED], who was shadowed by [REDACTED]. No witnesses were presented. It was a closed hearing. Apart from the parties’ pendency briefs and the June 12 pendency order, no significant agreements occurred, nor were any motions filed, before the hearing proceeded. District moved for the admission of 5 documents into the hearing record. (TR 06/21/2023, at 55-56.) Exhibits 1 through 4 were admitted into evidence without objection. Exhibit 5 was not admitted into evidence on grounds of duplicability. (Id. at 60.) Parent moved for the admission of 2 documents into the hearing record. (Id. at 60-61.) Exhibit B, a March 25, 2018 IESP, was admitted into the hearing record over the objections of the District. (Id. at 61, 70.)

Parent formally advised they were limiting their request for remedies to compensatory education services. (RT 06/21/2023, at 65-66.) District did not present a Prong 1 case but argued Parent had an obligation to present a Prong 2 case. (Id. at 74.) The second day of the hearing convened on June 22, 2023. It was a closed hearing. No significant agreements occurred, nor were any motions filed, before the hearing proceeded. Parent was represented by [REDACTED]. The DOE was represented by [REDACTED], who was shadowed by [REDACTED]. Parent, [REDACTED], testified on direct and was cross-examined by District’s representative. (RT 06/22/2023, at 96-137.) The matter moved to closing statements. (Id. at 138-50.)

The undersigned determined that an additional hearing date was warranted and did not take the matter under advisement on June 22, 2023. (RT 06/22/2023, at 150.) In an interim order, the undersigned requested the parties present evidence establishing the prevailing market rate to be awarded in the event a determination was made that compensatory education services were warranted. (IHO-V.)

The due process hearing was resumed on August 2, 2023. Parent was represented by [REDACTED]. The DOE was represented by [REDACTED]. No exhibits were introduced, and no witnesses were presented, as District was not provided fair notice that the matter would proceed as a hearing and not a status conference.

The fourth day of the hearing occurred on August 16, 2023. Parent was represented by [REDACTED]. The DOE was represented by [REDACTED]. Parent’s representative presented [REDACTED], an administrator at [REDACTED], as an expert witness on prevailing market rates in the special education community. The witness was examined by Parent’s representative and cross-examined by District. Another hearing date was scheduled for District’s representative to finish his cross-examination of the witness.

The due process hearing concluded on August 22, 2023. Parent was represented by [REDACTED]. The DOE was represented by [REDACTED]. [REDACTED] returned and was cross-examined by District’s representative. She underwent redirect examination by Parent’s representative and was questioned by the hearing officer. Parent presented oral closing statements, and District submitted a closing brief. The record was closed on September 7, 2023. The parties requested an extension of the compliance date for the preparation of the transcripts and the issuance of the FOFD.

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., Educ. Law § 3602-C, and their implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND AND POSITION OF THE PARTIES

Student, D.O.B. [REDACTED], was [REDACTED] at the beginning of the 2022-2023 school year and was enrolled at [REDACTED]. (P-A-1.) Student’s disability classification is learning disability and on March 25, 2018, the CSE convened a Turning 5 Individualized Education Services Program (IESP) meeting for Student. The CSE recommended the following program for Student:

1. Special Education Teacher Support Services (SETSS), Direct Service, Group Service, English, 4 periods per week;

2. Counseling Services, Group Service, English, 1x30 minutes per week; and

3. Counseling Services, Individual Service, English, 1x30 minutes per week. (P-B-9). The March 25, 2018 IESP was the last agreed upon IESP. No other IEP or IESP meetings were convened for Student. (See TR 06/22/2023, at 145; D-1, D-2, D-3, D-4.)

Parent narrowed his request for remedies to an order compelling the district to provide a bank of compensatory education services for services not provided during the 2022-2023 school year. District contended the DPC should be dismissed with prejudice because Parent had not timely requested educational services for Student by June 1, 2022, as required by statute. Alternatively, District argued Parent had not presented sufficient evidence in support of the request for compensatory services.

District did not present a Prong 1 case but argued Parent had an obligation to present a Prong 2 case. (RT 06/21/2023, at 74.) District also objected to the request for enhanced rates and asserted the enhanced rate sought was not appropriate and would not be established to be appropriate. (Id. at 74-75.) Parent countered the district was obligated to provide Student with SETSS services for the 2022-2023 school year pursuant to a 2018 IESP as it was the last agreed upon IESP for Student. (Id. at 79.) Parent contended they did not have a Prong II burden because Student did not receive any services during the 2022-2023 school year. (Id. at 80.) Parent argued he should not bear the burden of establishing that a compensatory award was warranted as the district did not provide Student with any equitable services during the 2022-2023 school year. Parent asserted there was an hour-for-hour failure to provide equitable services during the school year and therefore, and hour-for-hour relief was warranted. (Id. at 81.) Parent clarified he was not seeking a specific enhanced rate because he had not contracted with service providers. (Id.) Therefore, he did not know whether the provider rates would be “$100 per hour, $200 per hour, or $300 per hour.” (Id.) Parent requested that the rate be ordered at market rate to be determined by the DOE’s implementation unit. (Id. at 82.)

In closing argument, District argued Parent had not met his Prong 2 burden and had not established that the unilateral placement was appropriate. (RT 06/22/2023, at 138.) District contended the due process complaint should be dismissed in its entirety due to the insufficiency of evidence establishing Student’s current educational abilities and needs. (Id. at 139.) District also invoked a procedural bar to relief, contending Parent had not established he timely requested educational services for Student by June 1, 2022, as required by statute. (Id. at 140.) District closed by arguing that the due process complaint should be dismissed with prejudice. (Id. at 143.)

Parent countered that the burden of establishing non-compliance with the June 1 deadline rests with the district and it had not established that Parent had not complied with the filing deadline. (RT 06/22/2023, at 145.) Parent argued that an award for compensatory education was warranted to place Student in the position she would have been had District provided her with services at either the beginning of the school year or after the DPC was filed on January 30, 2023. (Id. at 146.) Parent further argued that compensatory education was warranted as the district failed to implement Student’s pendency placement. (Id.) According to Parent, Student should receive pendency services to which she was entitled as a compensatory remedy. (Id.) Parent argued that, when compensatory services are requested, it is the district’s burden to provide countervailing evidence that Student did not need said services. (Id. at 147.) In closing, Parent requested compensatory education services for the entirety of the 2022-2023 school year, based both on the student not receiving equitable services during the school year, and on the student not receiving said services under pendency. (Id. at 148.) Parent requested Student be awarded a bank of 160 hours of SETSS services and 80 counseling sessions. (Id.) The District objected to the requested relief arguing that Parent had not presented sufficient evidence to support the requested relief. (Id. at 150.)

At the conclusion of the hearing on the prevailing market rate issue, Parent’s representative made an oral closing argument, arguing that an hour-for-hour compensatory services award was warranted for services not received under pendency. (RT 08/22/2023, at 267.) Parent relied on the holding of Burlington/Carter to argue that any award less than the full value of the stay-put services would undermine the stay-put provision and give the local education agency an incentive to ignore the stay put obligation. (Id.) Parent also relied on the holding of DOE v. East Lyme Board of Education for the proposition that compensatory services may/should be awarded when an agency has violated the stayput provision to make up for any appreciable difference between the full value of the stay-put services owed and the reimbursable services that the parent actually obtained. (Id. at 268.) Parent contended Student should receive the full value of the services she would have received under pendency as no educational services were obtained by Parent during the school year. (Id. at 268-69.) Parent commented that, although she had presented market rate evidence as requested, a rate should not be specified in the FOFD as the district has a statutory obligation to implement an FOFD and would do so based on the rate the provider demanded. (Id. 269-70.) Parent noted the district had not presented market rate evidence to counter Parent’s evidence and therefore an inference should be drawn that Parent’s evidence reflected current market rates. (Id. at 271-72.) Parent concluded by asking for an hour-for-hour award of compensatory education services. (Id. at 272.)

In their closing brief, the district asserted Student was not entitled to a FAPE since Student had been parentally placed in a school outside the New York City school system. (IHO-VII.) In addition, District argued Student is not entitled to compensatory education hours on the following bases: (1) failure to demonstrate that compensatory education hours are needed to ensure Student is making progress; (2) failure to demonstrate that Student is entitled to counseling services as a compensatory benefit; and (3) the equities favor the DOE as Student is not entitled to compensatory education services.

ISSUES

Parent contends Student is entitled to compensatory education services due to the DOE’s failure to conduct an IESP meeting or implement past recommended services for the 2022-2023 school year. (P-A-2.)

APPLICABLE LEGAL STANDARDS

A. The IDEA’s Legal Framework A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009); accord, Phillips ex rel. T.P. v. District of Columbia, 932 F.Supp.2d 42 (D. D.C. 2013) (“The stated purpose of the IDEA is ‘to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.’”)

A board of education must offer a FAPE to each student with a disability, residing in the school district, whom requires special education services or programs. 20 U.S.C. § 1412(a)(1)(A); Educ. Law § 4402(2)(a), (b)(2). A board of education must also identify, locate, and evaluate children who are not enrolled in public schools, such as children who are homeless, wards of the State, or attending private schools. 20 U.S.C. § 1412(a)(3)(A) (IDEA Child Find provision). Students who are enrolled in nonpublic schools, however, 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); Educ. Law § 3602-C.

Under the dual-enrollment statute—Education Law § 3602-C—students who reside in New York and attend nonpublic schools located within the state are eligible for special education services. Education Law 3602-C(2)(b)(1) directs the school district of location to develop an individualized education service program (IESP) upon written request of the parent. Education Law 3602-C(2)(a) directs parents to file a request for services on or before the first day of June preceding the school year for which the request for services is made.^[3] The task of creating an IESP is assigned to the same committee that designs educational programming for students with disabilities under IDEA, namely a local committee on special education that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative. Educ. Law §§ 3602-C(2)(b)(1), 4402; 8 NYCRR §§ 200.3, 200.4(d)(2); see also Memorandum from James P. DeLorenzo, re: Chapter 378 of the Laws of 2007, New York State Education Department, Sept 2007; see generally 20 U.S.C. § 1414(d)(1)(A)-(B); 34 CFR §§ 300.320, 300.321.

B. Burden of Persuasion in New York State IEP Proceedings Under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief. See Schaffer v. Weast, 546 U.S. 49, 59-62 (2005) (finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not). However, under New York State law, the burden of proof is on the school district during an impartial hearing, except for when a parent is seeking tuition reimbursement for a unilateral placement. The parent then has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404(1)(c); 8 NYCRR § 279.12[a]; see also 34 CFR § 300.514[b][2]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014); C.F. v. New York City Dep't of Educ., 746 F.3d 68, 76 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167,184-85 (2d Cir. 2012).

C. Dispute Resolution under the IDEA and State Mechanisms The IDEA ensures that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(B); 20 U.S.C. § 1415; Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 206-07 (1982); accord, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009). In general, Parents are entitled to avail themselves of the IDEA due process mechanism to resolve complaints “relating to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child.” 20 U.S.C. § 1415(b)(6); 34 CFR § 300.507(a)(1); 8 NYCRR § 200.5(j). Incorporated among the procedural protections of the IDEA and the analogous State law provisions governing dual-enrollment programming is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. Educ. Law § 3602-C; Educ. Law § 4404(1); 8 NYCRR 200.5(h)-(l); Board of Educ. of Monroe-Woodbury Cent. School Dist. v Wieder, 72 NY2d 174, 184 (1988); see also 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 CFR §§ 300.151-300.152, 300.506, 300.511.

However, access to the due process mechanism is limited for students enrolled in nonpublic schools. First, parents who enroll their children in nonpublic schools may avail themselves of the IDEA dispute mechanism only if the dispute pertains to Child Find requirements, including evaluation requirements. 20 U.S.C. § 1412(a)(10)(A); 34 CFR § 300.140; accord, Educ. Law § 3602-C(c). Additionally, Education Law 3602-C gives parents seeking educational services for their children the right to avail themselves of the due process mechanism if a dual-enrollment dispute pertains to the recommendation of the Committee on Special Education. Educ. Law § 3602-C(2)(b)(1).

Nonetheless, the impartial hearing mechanism may be invoked to contest an IEP and the failure to implement the IEP. Elmira City Sch. Dist. v. N.Y.S. Educ. Dep't, 166 N.Y.S.3d 710, 716 (N.Y. App. Div. 2022) (making the distinction that the dispute did not pertain to the components or adequacy of the IEP, but to the implementation of the IEP); R.E. v. N.Y. City Dep't. of Edu., 694 F.3d 167, 191-2 (2d Cir. 2012) (noting that a specified school must be capable of implementing the recommended IEP). If a party does not have the right to appeal under the IDEA, they may bring a civil action in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy. 20 U.S.C. §§ 1415(i)(2) and (3)(A), 1415(l); 34 CFR § 300.516(a); 8 NYCRR § 200.5(k)(3). States are also required to implement State complaint procedures (34 CFR § 300.151), and, in 8 NYCRR § 200.5(l), New York provides an aggrieved party with the mechanism to file a State complaint with New York State Education Department (NYSED).

D. Grounds for Rendering a Decision An impartial hearing under the IDEA is limited to issues “relating to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child.” 20 U.S.C. § 1415(b)(6); 34 CFR § 300.507(a)(1); 8 NYCRR § 200.5(j). A decision made by an impartial hearing officer shall be made on substantive grounds based on a determination of whether the student received a free appropriate public education. 20 U.S.C. § 1415(f)(3)(E)(i); 34 CFR § 300.513(a); 8 NYCRR § 200.5(j)(4).

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; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012); 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. Fla. 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). The Supreme Court has indicated that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 137 S. Ct. 988, 999 (2017).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Burlington/Carter ^[4]. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014); C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 (2d Cir. 2014); Gagliardo, 489 F.3d at 114-15.

In Burlington, the Supreme Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. 471 U.S. at 370-71; accord, Ventura de Paulino v. New York City Dep’t of Educ., 959 F.3d 519, 526 (2d Cir. 2020); see also Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 (2d Cir. 2007); Cerra v. Pawling Cent. Sch. Dist. 427 F.3d at 192 (2d Cir. 2005). “Reimbursement merely requires (a district) to belatedly pay expenses that it should have paid all along and would have borne in the first instance,” had it offered the student a FAPE. Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412(a)(10)(C)(ii); 34 CFR § 300.148. Burlington’s three-part test is applicable to requests for prospective relief, retroactive reimbursement, and retroactive direct tuition payment claims. Mr. and Mrs. A. v. N.Y. City Dep’t of Educ., 769 F.Supp.2d 403, 415 (S.D.N.Y. 2011). Equitable education services disputes are also examined under the Burlington/Carter unilateral placement framework because the administrative due process system was not designed to set rate-making policies. Application of a Student with A Disability, Appeal No. 23-076 *14; Application of a Student with A Disability, Appeal No. 23-010, *8 (unilaterally-obtained SETSS).

FINDINGS OF FACT [SEE BELOW]

CONCLUSIONS OF LAW

This case involves a parentally placed student with an IESP rather than an IEP. Accordingly, Parent does not have the right to avail themselves of the IDEA due process mechanism per se, as Parent is not seeking to educate Student in public schools. While the dual-enrollment dispute at issue does not pertain to the recommendation of the Committee on Special Education, Parent may invoke the impartial hearing mechanism to contest an IESP and the failure to implement an IESP, as set forth above.

A. Procedural Bar to Relief District contends the DPC should be dismissed with prejudice because Parent had not established he timely requested educational services for Student by June 1, 2022. District lodged this objection to due process proceedings at the first hearing (the pendency hearing) and relied on the doctrine in closing arguments.

The undersigned concludes the DPC must be dismissed on those grounds.

Parent cited the decision of the SRO in Application of a Student with a Disability, 23-065, for the proposition that the June 1 requirement falls by the wayside when the district fails to provide a child with educational services. (RT 06/22/2023, at 145.) SRO Decision 23-065 was instructive in that the parent therein contested the finding that he had not provided notice to the district by June 1, 2022, on multiple grounds. Id. at 4. The parent argued that the district bore the burden of proof but had failed to raise this issue until its closing statement. Next, the parent asserted that even if he failed to make a timely request for services, the district implicitly waived the June 1 deadline via its actions, as it did not raise the procedural bar in any filing, status conferences, or in its opening statement. The parent also asserted that the district had only raised the procedural bar in response to a request for pendency. The parent argued the district had not historically asserted the June 1 requirement as a bar for services. The parent contended the District bears the burden of notifying a parent of the June 1 deadline, and there was no evidence that the district notified the parent of this requirement. Last, the parent argues that even when a student is parentally placed, the district retains all of its responsibilities to provide special education to students who reside within the district and the IHO should have determined whether the district met its basic obligations.

The SRO determined that the matter before it was not strictly a Section 3602-c matter. SRO Decision 23-065 at 9-10. Parent had alleged a denial of FAPE, and there was nothing in the parent’s request limiting the matter to a request for equitable services. The SRO also reasoned the IDEA imposed a requirement on the CSE to meet annually to review the student’s educational programming. Id.

The SRO’s reasoning for not enforcing the assertion of procedural bar is at odds with the Supreme Court’s analysis of claim-processing statutes. Therefore, SRO Decision 23-065 does not control the outcome of these proceedings.

The Supreme Court has explained that a statute which makes no mention of subject-matter jurisdiction is a claim-processing rule. Fort Bend County v. Davis, 139 S. Ct. 1843, 1851 (2019). As a general matter, “claim-processing rules” are those that “seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at specified times.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011). A court rule is likewise a claim-processing rule and is subject to forfeiture if not properly raised. Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017). A claim-processing rule must be enforced if a party properly raised it. Davis, 139 S. Ct. at 1849 (quoting Eberhart v. United States, 546 U.S. 12, 19 (2005) (per curiam)). Fort Bend, for example, had forfeited the right to challenge an EEOC claim on procedural grounds because it raised the claim-processing requirement after “an entire round of appeals all the way to the Supreme Court.” Id. at 1848.

There is no express reference to subject-matter jurisdiction in Education Law 3602-C. As a result it is a claim-processing rule as, on its face, it, “seek(s) to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.”

Education Law 3602-C’s deadline proscription is forfeited if not timely asserted. Here, District expressly raised the failure to comply with the claim-processing rule at the pendency hearing, and again at the end of the due process hearing. Raising the filing requirement in opening statements would have squarely provided Parent with advance notice of District’s position, but it is not fatal to District’s ability to raise it in closing statements. Parent was certainly on notice that the filing requirement was in play as District conducted extensive cross-examination on the matter. In any event, until Parent rests their case, District cannot allege an element insufficiency argument. Closing arguments was the proper forum to formally raise the filing requirement as grounds for dismissal of the DPC.

Further, under the IDEA, District was not required to raise the failure to comply with a statutory mandate any earlier than closing arguments, as non-compliance with the written notice requirement is to be taken into consideration during the financial award phase of the proceedings. 20 U.S.C. § 1412(a)(10)(C)(iii)(III) (tuition reimbursement may be reduced or denied upon a judicial finding of unreasonableness with respect to actions taken by the parents); see also Burlington, 471 U.S. at 374; Forest Grove, 557 U.S. at 240-41 (discussing circumstances under which court may reduce or deny reimbursement under 20 U.S.C. § 1412).

In any event, SRO Decision 23-065 does not control the outcome of this dispute, because the matter before the undersigned is strictly a Section 3602-C matter. Parent expressly limited their litigation to obtaining compensatory educational services for Student. Parent did not seek a FAPE determination.

Nonetheless, a FAPE determination is not available to a student attending private school. The IDEA expressly provides that students attending private schools may only avail themselves of the due process mechanism if the dispute pertains to Child Find. 20 U.S.C. § 1412(a)(10)(A); 34 CFR § 300.140; accord, Educ. Law § 3602-C(c). See also, Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools, OSEP QA 21-03 at 50-51 (Revised December 2020). 34 CFR § 300.140 implicitly precludes parents of children with disabilities parentally enrolled in private schools from lodging causes of action under federal law pertaining to evaluation, placement, or the provision of a FAPE:

§ 300.140 Due process complaints and State complaints (a) Due process not applicable, except for child find. (1) Except as provided in paragraph (b) of this section, the procedures in §§ 300.504 through 300.519 do not apply to complaints that an LEA has failed to meet the requirements of §§ 300.132 through 300.139, including the provision of services indicated on the child’s services plan.

While Parent may avail himself of the due process mechanism to litigate the failure to provide educational services for Student under state law, Parent is not able to assert the DOE denied Student a free appropriate public education. Parent is not, in fact, seeking a free appropriate public education for Student.

The assertion that the district was required to prove a negative is disregarded. The IDEA squarely places the burden on parents to establish they complied with statutory requirements when seeking tuition reimbursement. When FAPE is at issue, the IDEA expressly provides that reimbursement may be reduced or denied if a parent fails to provide the local education authority with written notice of removal of a child from public school. § 300.148(d)(1)(ii). Consequently, every DPC is preceded by a 10 day notice to the DOE. Whereas Parent failed to produce a request for services submitted by June 1, 2022, an essential element of his claim for relief is missing. See Arbaugh v. Y & H Corp., 546 U.S. 500, 516, 504 (2006) (distinguishing between the essential ingredients of a federal claim for relief and subject-matter jurisdiction over a controversy); Adams v. Zarnel (In re Zarnel), 619 F.3d 156, 168 (2nd Cir. 2010) (noting Arbaugh clarified the distinction between subject-matter jurisdiction over a controversy and the essential ingredients of a federal claim for relief).

In sum, District has timely raised the filing requirement as a bar to obtaining relief and dismissal of the DPC is mandatory.

B. Reimbursable, Unilaterally-Obtained SETSS Analysis

While not required, as a claim-processing requirement bars relief, the undersigned will briefly address the substantive issue presented. A dispute pertaining to privately obtained equitable services is, in essence, a subset of the Burlington-Carter unilateral placement framework. The State Review Officer has noted that, when districts cannot deliver special education services called for by their educational programming in an authorized manner, districts can be made to pay for a privately obtained parental placement. Application of A Student with A Disability, Appeal No. 23-010 at 8. The SRO views this process as “essentially the same as the federal process under the IDEA.” Id. Accordingly, a determination must be made as to whether the district’s proposed placement was appropriate. If not, was the parent’s unilateral placement appropriate? If parent’s unilateral placement was appropriate, do equitable considerations support the parent’s claim?

Prong 1 – Appropriateness of School District Program

District did not present a Prong 1 case to establish that the DOE procedurally and substantively offered Student a FAPE. Therefore District did not establish that it (a) “complied with the procedural requirements of the IDEA”; and (b) the IEP was “reasonably calculated to enable the child to receive educational benefits.” Walczak, 142 F.3d at 129 (quoting Rowley, 458 U.S. at 206-07).

Prong 2 – Appropriateness of Parental Placement

Parent contended he was not required to establish the appropriateness of the program selected as he was seeking a prospective remedy and had not obtained SETSS or counseling services for Student during the 2022-2023 school year. In its closing brief, District advised the DOE took no position on the Prong 2 question. (IHO-VIII-9.)

The undersigned concludes that the appropriateness of the parent’s placement is not at issue in these proceedings. As set forth above, a dispute pertaining to privately obtained equitable services is, in essence, a subset of the Burlington-Carter unilateral placement framework. Depending on the dispute, the analysis may not proceed linearly as contemplated by Burlington-Carter.

Prong 3 – Equitable Considerations

Were this dispute a straight-forward request to pay for services, Parent would not prevail. As set forth above, Burlington’s three-part test is applicable to requests for prospective relief, retroactive reimbursement, and retroactive direct tuition payment claims. The State Review Officer has concluded that the Burlington analysis is to be applied even when requests for equitable services are at issue. See Application of A Student with A Disability, Appeal No. 23-010, at 8. The SRO views the analysis as “essentially the same as the federal process under the IDEA,” and holds districts can be made to pay for a privately obtained parental placement. Id.

The undersigned adopts the SRO’s summary of the applicable law as set forth in Application of a Student with a Disability, Appeal 23-093, at 22:

In a tuition reimbursement case, equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep’t of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations in the tuition reimbursement context, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M., 758 F.3d at 461 [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 [2d Cir. 2014] [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

In this case, Parent did not timely request services by June 1, 2022 for the 2022-2023 school year. Evidence was elicited on cross-examination that Parent did not make Student available for evaluation. Student was [REDACTED] at the beginning of the 2022-2023 school year, yet Parent is attempting to obtain a level of services best suited for a kindergartener. District offered Parent a resolution offer on March 9, 2023, for all the equitable services requested before the pendency hearing convened on March 14, 2023. Parent did not take the resolution offer and instead proceeded with the due process hearing to litigate compensatory education services. On the basis of the record before the undersigned, Parent was not substantially justified in rejecting the settlement offer. The equities would not favor Parent were a Burlington-Carter analysis to be made.

C. Compensatory Education Analysis The undersigned will also address the compensatory education issue, as Parent proceeded with the due process hearing solely to obtain compensatory education services for Student.

The purpose of an award of compensatory education is to provide an appropriate remedy for the denial of a FAPE. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 (2d Cir. 2014); accord, Phillips ex rel. T.P. v. Dist. of D.C., 736 F.Supp.2d 240, 247 (D. D.C. 2010); accord, Reid, 401 F.3d at 522 (reasoning that, if IDEA permits reimbursement for educational services, then it must also allow awards of the services themselves); see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440 (2d Cir. 2015) ('Doe I'). “Under the theory of ‘compensatory education,’ courts and hearing officers may award ‘educational services . . . to be provided prospectively to compensate for a past deficient program.’” Reid, 401 F.3d at 522; accord, Jane Doe v. E. Lyme Bd. of Educ., 962 F.3d 649, 659 (2nd Cir. 2020) ('Doe II'). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (holding that compensatory education awards should be designed so as to “appropriately address[] the problems with the IEP”); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that “[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act”).

The evidence presented does not support awarding Student compensatory services on an hourfor-hour basis. See Phillips, 736 F.Supp.2d at 250 (placing burden on the parent to present evidence that would allow the hearing officer to properly craft a compensatory award that comports with the IDEA). When fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award 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.” Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007) (holding that a flexible approach, rather than a rote, hour-by-hour compensation award, is more likely to address the student’s educational problems successfully); Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997) (compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case). The D.C. District has held, “even if entitlement to an award is shown through a denial of a free and appropriate public education, ‘[i]t may be conceivable that no compensatory education is required for the denial of [a free and appropriate public education] ... either because it would not help or because [the student] has flourished in his current placement....’” Phillips, 736 F.Supp.2d at 247 (quoting Thomas v. Dist. of Columbia, 407 F.Supp.2d 102, 115 (D. D.C. 2005)).

Parent requested an hour-for-hour compensatory services award and did not present specific educational deficits that resulted from the failure to provide Student with the services delineated in the 2018 IESP. An hour-for-hour compensatory education award is not supportable, as Parent has not proposed “a well-articulated plan that reflects [the student’s] current education abilities and needs that is supported by the record.” Phillips, 736 F.Supp.2d at 248. In fact, Parent’s representative stated Parent had not identified providers to provide compensatory educational services for Student. The compensatory education award was seemingly sought as a type of back-up insurance:

So the parents are foreseeing having her, of course, be eligible for four periods of SETSS per an IESP for the coming school year, and having that implemented in school to support her in her studies. And having the compensatory hours at four periods per week be provided to her at home to provide her with the catch-up, the -- to catch her up with the skills that she missed and to repair the harm that she endured. … I also asked that there would be no expiration date to such services so that if she doesn’t receive the four periods per week on a very consistent basis, the remaining services could be implemented in the coming summers.

(RT 08/22/2023, at 273-74.)

Parent has not met his burden of establishing Student would benefit from compensatory education services to redress educational deficits.

ORDER

Based upon the above findings of fact and conclusions of law, Parent’s due process claim is dismissed with prejudice.

SO ORDERED.

DATED: September 28, 2023 /s/Katia Mehu

KATIA MEHU

Impartial Hearing Officer

Copies:

[REDACTED] – [REDACTED] [REDACTED] – [REDACTED]

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Impartial Hearing Request 01/30/2023 4 pages

B. CSE IESP 03/25/2018 10 pages

DOE’S EXHIBITS

1. IEP Meeting Notice 09/30/2022 3 pages DOE

2. IESP 10/06/2022 6 pages DOE

3. Assessment Planning 03/25/2021 1 page DOE

4. Prior Written Notice 11/28/2022 5 pages DOE

IHO’S EXHIBITS

PARENT

I. Brief on Pendency 04/24/2023 5 pages

II. District Position Brief Concerning Pendency 05/01/2023 9 pages

PARENT

III. Second Pendency Entitlement Brief 05/25/2023 8 pages

IV. Email Exchange in re Proposed Resolution of Dispute 06/08/2023 3 pages

V. IHO Email Addressed to the Parties in re Focus of Hearing 08/02/2023 2 pages

VI. Attachment to IHO Email Addressed to the Parties SRO Decision No. 23-068 ND 13 pages

VII. District Closing Brief 09/07/2023 9 pages

Footnotes

[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

[3] See also, James P. DeLorenzo’s 2007 Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students, instructs: The parent must request special education services in writing to the school district of location by June 1 preceding the school year for which the request for services is made, except that when a student is first identified as a student with a disability after the first day of June preceding the school year for which the request is made and prior to the first day of April of such current school year, the parent must submit the written request for services within 30 days after the student was first identified.

[4] Sch. Comm. of Burlington v. Dep’t. of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).