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CASE NUMBER: 597133 - NYC: 246508
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: 03/09/2023
Date(s) of Hearing: 06/15/2023 (status conference)
Actual Record Closed Date: 06/26/2023
Date of Decision: 07/07/2023
Date of Distribution if Different than Decision Date: N/A
Time Sensitive: No
Hearing Officer: Harry A. Christodoulou
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 15, 2023
For the Student:
[REDACTED] (hereinafter referred to as “Parent’s representative”)
For the Department of Education:
[REDACTED] (hereinafter referred to as “District’s representative”)
INTRODUCTION AND PROCEDURAL HISTORY
Student is a [REDACTED]-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute. On March 9, 2023 [2], Parent, through Parent’s representative, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA regarding the 2022-2023 school year (“SY”) (Ex. P-A). I was appointed on March 12, 2023 to determine the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1), concerning Student’s special education program.
It is asserted in the DPC that the DOE, inter alia: that the DOE failed to implement the Student’s Individualized Education Services Program (“IESP”); and that it is the DOE’s responsibility to ensure that the services are provided (Ex. P-A-2, & P-A-3). Parent sought, inter alia, to invoke Student’s pendency rights (Ex. P-A2), but given the manner in which the case was disposed of (addressed below), Parent’s representative withdrew Parent’s request for an Order on Pendency (T. P4).
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[3] and its implementing regulations,[4] and the New York State Education Law[5] and its implementing regulations. [6]
LEGAL FRAMEWORK
A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits [7]. If a procedural violation is alleged, an IH 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 [8].
The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE [9]. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" [10].
To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP [11]. Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" [12].
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. [13]
Students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP from the public school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them [14].
The IDEA does not confer entitlement to students enrolled in nonpublic schools to all the special education programs or related services such students would receive if they attended public schools.[15] Instead, the IDEA requires school districts to participate in a consultation process for making special education services available to students in nonpublic schools,[16] and to “allocate a proportional share of federal IDEA funds to provide special education and related services to parentally-placed private school children” with disabilities. [17]
These “more limited services provided to parentally-placed children in private schools is commonly known as equitable participation, and is distinct from the FAPE requirement.” [18]
The IESP must be developed in the same manner and with the same contents as an IEP is developed. School districts are required to provide special education services pursuant to the IESP. Such services must be provided on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.
Per a New York State Education Department guidance document 19:
“The term "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. The new State legislation is intended to maintain the level of services provided to NYS nonpublic students with disabilities through IEPs. … Accordingly, 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. A nonpublic student may not be denied services that a public school student would receive based solely upon his or her status as a nonpublic student . . . ”
Where it is determined that IESP services were not appropriately provided on an equitable basis, the New York State Education Law permits a hearing officer to redress the violation under the same broad authority available for violations of the IDEA.[20] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act”[21] and damage awards are not available under the IDEA. [22]
19 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, September 2007.
The hearing officer “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” [23]
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement or direct funding for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement – which is not applicable in this case. [24]
FINDINGS OF FACT AND DECISION
Parent disclosed an IEP relevant to prior SY(s), which was admitted to the record (Ex. P-B). This IEP was developed for Student with an implementation period 09/08/2020-05/04/2021, pursuant to an IEP meeting held on May 4, 2020. In this IEP, the CSE recommended, inter alia:
i) Special Education Program/Services for Student: Special Education Teacher Support Services (“SETSS”) ELA; Service Delivery Recommendations: Direct Service, Group service, Language of Service:
Yiddish; Frequency: 3 times per week; Duration: Period; Location: Separate Location, Provider room; Projected Beginning / Service Date: 09/08/2020; and ii) Related Services: Speech-Language Therapy, Service Delivery Recommendations: Group of 3, Language of Service: Yiddish; Frequency: 2 times per week; Duration: 30 minutes; Location: Separate Location, therapy room; Projected Beginning / Service Date: 09/08/2020 (Ex. P-B-8).
Parent asserts in the DPC that: the complaint arises from the NYC Department of Education’s failure to offer the Student a Free Appropriate Public Education (“FAPE”); and that if the DOE maintains that it did provide a FAPE for the Student, the Parent reserves the right to challenge the appropriateness of any recommended placement, as well as the entire (IEP) including, but not limited to, the appropriateness of any services, programs, classes, staffing rations, performance levels, student participation, accommodations, objectives, and drafted annual goals (Ex. P-A-2). Parent asserts in the DPC that the Parent unilaterally secured a Service Provider(s) to work with the Student at an enhanced rate, and included as part of the proposed solution compensatory or make-up sessions for any services the Student was entitled to but did not receive (P-A-2, & P-A-3).
At the IH Parent’s representative asserted that the relief being sought, namely only the SETSS to be funded at market rate, would be an appropriate remedy for DOE’s failure to provide the equivalent of a FAPE, or equitable services, to Student for the claims in the DPC that remained - Parent’s representative confirmed that the request for an Order for Speech-Language therapy was being withdrawn. District’s representative confirmed at the IH that: there is no factual dispute and therefore, no need for testimony to be put on record; and that a final order should be granted without the need for further hearing (T. P5).
It appears, and there is no evidence on record to prove otherwise, that neither was an IEP nor an IESP was developed for Student for the 2022-2023 SY.
In a DOE guidance memorandum [25], published after the 2005 amendments to § 3602-c, describing its intended application of the law, the memorandum recognized that “Section 3602-c . . . was amended to comply with section 612(a)(1) of IDEA . . . to require the public school district where the nonpublic school is located to provide students with disabilities enrolled in nonpublic elementary and secondary schools by their parents with special education services.” [26]
Among the State’s acknowledged obligations listed in the memorandum are, inter alia: “[T]he district of location must conduct a reevaluation at least once every three years of each eligible parentally placed nonpublic school student with a disability” which “is important . . . because [reevaluations] provide current date needed to determine that total number of eligible students . . . used in calculating the proportionate share of funds that must be used on services” [27]; and “The CSE of the district of location must develop an IESP for students with disabilities who are NYS residents and who are enrolled by their parents in nonpublic elementary and secondary schools . . . The IESP must be reviewed . . . not less than annually.”[28] There is no evidence on record that any of this occurred for the Student for the 2022-2023 SY.
Given the DOE’s concessions, I find that the DOE’s failure to develop an appropriate program for Student for the 2022-2023 SY, review Student’s IEP/IESP not less than annually, and/or implement the Student’s IEP/IESP services, was tantamount to a denial of a FAPE, alternatively an IESP program and/or services were not appropriately developed and provided to Student on an equitable basis.
Based on the record, which includes the DOE’s concessions, I find that Parent is entitled to an award for the SETSS requested by Parent. Other than the relief set out in my Order below, I find that no basis and/or evidence in the record supports any additional relief.
ORDER
Based upon the above Findings of Fact, it is hereby:
1. ORDERED that, the DOE shall either reimburse, alternatively fund (subject to #2 of this order), at market rate, Student’s mandated SETSS (Service Delivery Recommendations: Direct Service, Group service, Language of Service: Yiddish; Frequency: 3 times per week; Duration: Period; Location: Separate Location, Provider room) for the 10-month 2022-2023 SY (i.e., September 2022 through June 2023).
2. FURTHER ORDERED that, to the extent that Parent has not paid for any of the SETSS specified in #1 of this Order, the DOE shall directly fund and pay to the provider of Parent’s own choosing, the mandated SETSS detailed in #1 of this Order, still at market rate, upon the submission to the DOE’s Implementation Unit of: i) the signed contract in terms of which Parent secured a licensed provider to provide the SETSS to Student for the 2022-2023 SY; and ii) a sworn affidavit or affirmation by Parent confirming Parent’s ultimate obligation to pay for the SETSS, and that the contract was not otherwise cancelled, or terminated.
3. FURTHER ORDERED that, to the extent that not all mandated SETSS were provided to Student by a provider/s of Parent’s own choosing during the period specified in #1 of this Order, then the DOE shall fund the remaining balance of SETSS as compensatory services for Student, to be provided by a licensed provider/s of the Parent’s own choosing, at a market rate, by issuing payment directly to the provider/s within 30 (thirty) days upon the submission of invoices for services rendered.
4. FURTHER ORDERED that, the bank of compensatory SETSS set out in #3 of this Order shall expire after 8 (eight) months from the date of this Order.
SO ORDERED.
DATED: July 07, 2023
__H.A.C._(Signed Electronically)___
Impartial Hearing Officer
Harry A. Christodoulou
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 – REDACTION IDENTIFICATION PAGE [REDACTED]
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT’S EXHIBITS
A. DPC 03/08/2023 4 pages
B. IEP 09/08/2020 14 pages
DOE’S EXHIBITS
- - - -
IHO’S EXHIBITS
I. IHO’s PHC Summary 04/12/2023 1 page
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] The DPC is dated March 8, 2023 but is reflected as “requested on 03/09/2023” in the Impartial hearing System.
[3] 20 U.S.C. § 1400 et seq.
[4] 34 C.F.R. § 300 et seq.
[5] Educ. Law Art. 89 § 4404 et seq.
[6] 8 NYCRR § Part 200.
[7] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[8] 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[9] 20 U.S.C. § 1415[f][3][E][i].
[10] Rowley, 458 U.S. at 203.
[11] Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]
[12] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007].
[13] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[14] Provisions of section 3602-c; See also 34 CFR 300.130 and 300.145-147.
[15] See 34 C.F.R. § 300.137(a).
[16] See 34 C.F.R. § 300.134.
[17] E.T. and D.T. ex rel. E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at 10 (S.D.N.Y. 2012) (citing J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 665 [S.D.N.Y. 2011] [internal quotation marks omitted]); see also 20 U.S.C. § 1412(a)(10)(A)(i)-(ii); 34 C.F.R. §§ 300.131 – 300.133.
[18] E.T. and D.T. ex rel. E.T., supra., at 11 (internal quotations and citations omitted); c.f. Application of a Student with a Disability, Appeal No. 20-115 (Sept. 3, 2020) at pg. 4 (noting that in a particular case the difference in applying a FAPE standard or an “equitable services standard” is a “distinction without a difference” where N.Y. Educ. Law § 3602-c “has been routinely treated . . . as providing eligible students with an individual right to special education services that must be tailored to the student’s particular needs by the CSE” that are then protected “through the due process hearing system called for by the IDEA” (internal citations omitted)).
[20] See Application of a Student with a Disability, Appeal No. 20-023 (citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 [D. Conn. 2017]).
[21] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[22] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[23] See Doe v. East Lyme, 790 F.3d at 454.
[24] NYS Educ. Law § 4404(1)(c).
[25] See Guidance on Parentally Place 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 (Memorandum from James P. DeLorenzo to education stakeholders, September 2007).
[26] Id. at pp. 1 to 2 (emphasis removed).
[27] Id., Attachment 1, at pg. 3.
[28] Id., Attachment 1, at pg. 4 (emphasis added).