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CASE NUMBER: 597750 - NYC: 246967
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: 03/27/2023
Date(s) of Hearing: 07/06/2023
Actual Record Closed Date: 07/10/2023
Date of Decision: 07/10/2023
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
JULY 6, 2023
For the Student:
REDACTED (hereinafter referred to as “Parent’s representative”) For the Department of Education (“DOE”): REDACTED (hereinafter referred to as “District’s representative”)
Other: Observer (defined below)
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 27, 2023 [2], Parent, through Parent’s representative firm, 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 28, 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, failed: to implement the Student’s most recent Individualized Education Program (“IEP”); and that Parent was seeking a finding that the failure of the DOE to implement their recommendation was a denial of a Free Appropriate Public Education (“FAPE”) for the 2022-2023 SY (Ex. P-A-2, & P-A-3). Parent sought, inter alia, to invoke Student’s pendency rights (Ex. P-A-2), 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. P._) [3].
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[4] and its implementing regulations,[5] and the New York State Education Law[6] and its implementing regulations. [7]
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 [8].
If a procedural violation is 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 [9].
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 [10]. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" [11].
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 [12]. 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" [13].
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. [14]
Students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an Individualized Education Services Program (“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 [15].
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. [16]
Instead, the IDEA requires school districts to participate in a consultation process for making special education services available to students in nonpublic schools,[17] 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. [18]
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.” [19]
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 20:
“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.
…
20 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.
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.[21] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act”[22] and damage awards are not available under the IDEA. [23]
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.” [24]
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. [25]
FINDINGS OF FACT AND DECISION
Parent disclosed a CPSE IEP relevant to the 2022-2023 SY developed pursuant to an IEP meeting held on October 27, 2022, which was admitted to the record (Ex. P-B). This IEP was developed for Student with an implementation period 11/2022 through 10/2023, and was authorized on “11/01/2022” (Ex. P-B-1).
The CPSE recommended in this IEP, inter alia, the following Related Services for Student:
i. Speech-Language Therapy, 2:1/Yiddish, Frequency: 2 times per week, Duration: 30 minutes, Location:
Early Childhood setting selected by parent; ii. Occupational Therapy, 2:1, Frequency: 2 times per week, Duration: 30 minutes, Location: Early Childhood setting selected by parent; and iii. Other Health Para, 1:1, Frequency: 5 times per week, Duration: 360 minutes, Location: Early Childhood setting selected by parent (Ex. P-B-10).
Parent asserts in the DPC that the Parent located a paraprofessional provider independently for the 2022-2023 SY at the provider’s prevailing rate, and reserved the right to ask for compensatory services for any hours of the related services not provided during the current SY (P-A-3, & P-A-3).
At the IH Parent’s representative asserted that the relief being sought, namely a bank of compensatory services for: i) Speech-Language Therapy, 2:1/Yiddish, Frequency: 2 times per week, Duration: 30 minutes, Location: Early Childhood setting selected by parent; and ii) Occupational Therapy, 2:1, Frequency: 2 times per week, Duration: 30 minutes, Location: Early Childhood setting selected by parent; as well as direct funding for iii) Other Health Para, 1:1, Frequency: 5 times per week, Duration: 360 minutes, Location: Early Childhood setting selected by parent [26], limited to hours actually being used by Student for the 2022-2023 SY given the hours Student is at school (“The Relief”), would be an appropriate remedy for DOE’s failure to provide the a FAPE, for the claims in the DPC. District’s representative confirmed at the IH that there was no factual dispute and therefore, no need for testimony to be put on record and there was no objection to a final order being granted without the need for further hearing.
There is no evidence on record that the DOE provided Student with the related services mandated in Student’s IEP. Given the concession regarding Parent’s assertions and the lack of a dispute in regard thereto, I find that the DOE’s failure to implement the Student’s IEP services was tantamount the denial of a FAPE. Despite the concession, given that the District bears the onus, the record and the probabilities, even if it were 50-50, supports a finding that the District failed to meet its burden. Parent asserts that the DOE has not made available any providers for the related services (Ex. P-F-2).
To the extent that Parent has not actually paid any money for which he must be reimbursed, this matter would fall “in a subset of more complicated cases in which the financial injury to the parent and the appropriate remedy are less clear”. “The Second Circuit Court of Appeals has held that a direct payment remedy is an appropriate form of relief in some circumstances, and that "[i]ndeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework" [27].
Parent testified by affidavit that: despite his best efforts, he was unable to locate any providers that were available to service Student at the DOE’s rate; the DOE did not make available any providers; he contracted the Agency (defined below) independently, which facilitated Paraprofessional services for the 2022-2023 SY at their prevailing rate; the Agency is providing 25.5 hours per week of Health Paraprofessional services to Student for the 2022-2023 SY; he signed an Acknowledgment of Liability, obligating himself to pay for these services in the event that the DOE does not pay the Agency for the services provided; paying for these services upfront would pose extreme financial hardship for him; and he would not be able to pay for these services without outside financial support from friends and family (Ex. P-F-2).
Parent disclosed the Acknowledgment of Liability signed by Parent in favor of the Agency, which document supports his testimony and confirms an obligation by Parent for the Paraprofessional services provided by the Agency to Student (Ex. P-D-1). The DOE neither contested Parent’s obligation to pay nor Parent’s financial ability. [28]
Based on the record, which includes the DOE’s concessions, I find that Parent is entitled to an award for The Relief requested by Parent. If the proposed relief is seeking an award for payment of Attorney’s fees as part of this decision, then the relief is not being granted by me as only a court can determine which party is entitled to attorney’s fees, and expenses. I would be exceeding the scope of my authority by determining that Parent was the prevailing party entitled thereto. [29]
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 directly fund at reasonable market rate, by making payment directly to the Agency, 25.5 (twenty five and a half) hours per week of Health Paraprofessional services provided to Student at the Attending School from November 1, 2022 for the reminder of the 2022-2023 SY.
2. FURTHER ORDERED that, the DOE shall fund the following compensatory services for Student, to be provided by duly New York State licensed providers of the Parent’s own choosing at the providers’ customary and regular rates (i.e. “an enhanced rate”), limited to a reasonable market rate for each of the following compensatory services:
a. Speech-Language Therapy, 2:1/Yiddish, Frequency: 2 times per week, Duration: 30 minutes; and
b. Occupational Therapy, 2:1, Frequency: 2 times per week, Duration: 30 minutes, by issuing payment directly to the provider(s) within 30 (thirty) days upon the submission of invoices for services rendered.
3. FURTHER ORDERED that, the bank of compensatory services set out in #2 of this Order shall not expire until the expiration of 2 (two) years from the date of this Order.
SO ORDERED.
DATED: July 10, 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 03/25/2023 6 pages
B. CPSE IEP 10/27/2022 13 pages
C. TDN 03/25/2023 2 pages
D. Acknowledgment of Liability 05/15/2023 1 page
E. Affidavit of Affiant (defined above) 05/17/2023 2 pages
F. Affidavit of Parent DOE’S EXHIBITS 07/03/2023 - - - IHO’S EXHIBITS IHO IHO PHC Summary 04/28/2023 1 3 pages
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 was filed with the Impartial Hearing Office on March 25, 2023, which was outside of business hours and is therefore reflected as “requested on 03/27/2023” in the Impartial hearing System, being the next business day.
[3] The transcript of the IH was of available at the time of writing this decision.
[4] 20 U.S.C. § 1400 et seq.
[5] 34 C.F.R. § 300 et seq.
[6] Educ. Law Art. 89 § 4404 et seq.
[7] 8 NYCRR § Part 200.
[8] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[9] 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].
[10] 20 U.S.C. § 1415[f][3][E][i].
[11] Rowley, 458 U.S. at 203.
[12] 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]
[13] 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].
[14] 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].
[15] Provisions of section 3602-c; See also 34 CFR 300.130 and 300.145-147.
[16] See 34 C.F.R. § 300.137(a).
[17] See 34 C.F.R. § 300.134.
[18] 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.
[19] 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)).
[21] 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]).
[22] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[23] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[24] See Doe v. East Lyme, 790 F.3d at 454.
[25] NYS Educ. Law § 4404(1)(c).
[26] Despite only seeking as part of the final relief an award of 25.5 hours per week for the Health Paraprofessional for the 2022-2023 SY, which is based upon Student’s attendance at the Attending School (defined below) – given that the IEP provided for “Location: Early Childhood setting selected by parent” and Student attends the selected location (I understood from Parent’s representative) for that number of hours – Parent’s representative however noted at the IH Student’s entitlement, pursuant to the IEP, to a frequency of 5 times per week, and a duration of 360 minutes for the 1:1 related service (Ex. P-B-10).
[27] See Application of a Student with a Disability, Appeal No. 20-140 citing E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 [2d Cir. 2014]; also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 430 [S.D.N.Y. 2011] this latter case finding it appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, had not done so due to a lack of financial resources. See also Application of a Student with a Disability, Appeal No. 20-087.
[28] The Service Provider’s (defined below) credentials were also not placed in issue.
[29] See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); and Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006).