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Findings of Fact and Decision Case No. 247538
CASE NUMBER: 598519 NYC: 247538
FINDINGS OF FACT AND DECISION
Case Number: 247538
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed.,
Rep. District REDACTED
CSE REDACTED
Impartial Hearing Officer: Dr. Oren Varnai, Esq.
Date of Filing: 4/17/2023
Hearing Requested by: Parent
Dated of Hearing: 6/8/2023 10:00:00 AM
Record Close Date: 10/6/2025
Date of Decision: 10/6/2025 Findings of Fact and Decision
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE DUE PROCESS HEARING:
1. REDACTED, Esq. for the parent, (hereinafter referred to as “Parent’s attorney”) — Student
(“DOE”): — DOE
1. REDACTED, Esq. appeared on behalf of the DOE, (hereinafter referred to as — DOE
“District’s Representative”) — DOE
Findings of Fact and Decision — DOE
NEW YORK CITY OFFICE OF ADMINISTRATIVE
TRIALS AND HEARINGS (OATH)
SPECIAL EDUCATION HEARINGS DIVISION
REDACTED, a Minor, by and through his/her Parent(s),
PETITIONER FINDINGS OF FACT AND
DECISION
against
THE NEW YORK CITY Dr. Oren Varnai, Esq. DEPARTMENT OF EDUCATION, Impartial Hearing Officer
RESPONDENT
FINDINGS OF FACT AND DECISION
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.
The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.
Findings of Fact and Decision
II. Background and Procedural History
A. Due Process Complaint Notice
Petitioner (Parent) is the parent of Student (“Student” or “Child”). On 4/17/2023,
Petitioner filed a Due Process Complaint (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”). Parent alleges that the Department of Education (“DOE”) failed to implement an individualized education service plan (“IESP”) for the 2022-2023 school year. The Parent seeks a compensatory education award consisting of:
SLT, group setting, 2 times per week, 30-minute sessions
OT, individual 1:1, twice per week, 30-minute seessions
PT, individual 1:1, twice per week, 30-minute sessions
Counseling, group setting, once per week, 30-minute sesions
Paraprofessional, full-time, group setting, but based on Parent’s inability to secure a group setting, for Parent to use the services of a 1:1 paraprofessional until such time as DOE can implement the IESP.
I was appointed on 4/18/2023. A settlement conference before an impartial hearing officer not appointed to adjudicate this action was held virtually on . On 6/8/2023 10:00:00
AM, both parties appeared virtually for a hearing. A list of the exhibits is included at the end Findings of Fact and Decision of the decision. The parties each put their respective positions on the record in the form of an oral closing (See 6/8/2023 10:00:00 AM Transcript) [1]
In light of the foregoing and as more fully discussed below, I find that the DOE failed to implement the IESP, thereby denying the Student a access to equitable services for the 2022-2023 school year(s), and that the relief Parent seeks, implementation of the IESP or funding for the provision of services directly to the Student consistent with the IESP, is appropriate compensatory relief.
III. Finding of Facts and Decision
After a full review of the record generated at hearing, I make the following findings of fact and determinations.
It is uncontested that the Student and Parent reside in New York City and the Student attended the Private School during the 2022-2023 school year(s). Furthermore, it is uncontested that the Private School is located within the geographic boundaries of the DOE.
The Parent did not challenge the content of the IESP, merely the delivery of the recommended services. See 6/8/2023 10:00:00 AM Hearing Transcript.[2] Moreover, the parties agree to the following operative facts:
1 The instant decision is being issued prior to the completion of the 6/8/2023 10:00:00 AM transcript.
2 In that the transcript from the hearing has not been finished, reference to the transcript as a whole is made herein. Findings of Fact and Decision
3. Any services provided to the Student during the 2022-2023 school year pursuant to the recommendations of the IESP should be funded at a rate not to exceed
$65/hour for the paraprofessional, and with a Related Services Authorization (“RSA”) rate (without the need for the issuance of an RSA) for the remaining services.
In considering the above representations, it is clear that the parties agree on the essential nature of the parent’s dispute, to wit: the Student is entitled to services as described in the IESP and that the DOE did not provide such services. Moreover, there is no dispute for me to resolve between the parties as to how any IESP services provided to the Student should be funded.
Burden
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); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014))
FAPE
The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Findings of Fact and Decision
Individualized Education Program (“IEP”) (20 U.S.C. § 1401(9)). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
Dual enrollment
A board of education must offer a 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)(l)(A); Educ. Law§ 4402(2)(a), (b)(2)). 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)). Under State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability by filing a request in the district 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)). Then, the district of location's CSE must review the request 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)(l)).
Findings of Fact and Decision
Here, there is no dispute that the Student is entitled to services pursuant to the IESP dated 4/28/2022 with the parties agreeing to the essential, operative facts (see above).
Moreover, the implementation of IESP services falls on the district of location 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)). 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)(b)(1)). Additionally, 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.
Compensatory Relief
The remedy for a school district’s failure to provide appropriate equitable services required under Education Law § 3602-c is similar to the remedy for a school district’s failure to provide appropriate services under the IDEA. 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).
Under the IDEA, courts can “grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act” (Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015)) (citation omitted). Equitable Findings of Fact and Decision
considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA (see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002)), “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme, 790 F.3d at
454).
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE.
See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time, and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education can serve as a “replacement of educational services the child should have received in the first place", and any award "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA[.]" Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); 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").
Findings of Fact and Decision
Compensatory education awards may include payment for out-of-pocket educational expenses incurred by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate remedy. Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-
79 (7th Cir. 2015) (citing cases). Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers. Indep. Sch. Dist. No. 283 v.
E.M.D.H., 2022 WL 1607292, at *3 (D. Minn. 2022), citing Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2019).
There is no evidence or claim made by the DOE asserting or suggesting that the Parent failed to cooperate with the DOE or interfered in any manner with the DOE’s obligation to provide the Student with a FAPE on an equitable basis for the 2022-2023 school year. After considering the representations of the parties and the evidence accepted into the record, I find that the Student is entitled to the services described in the 4/28/2022 IESP and that it is the DOE’s responsibility, as the district of location, to provide same. Therefore, the DOE must begin providing Student with the recommended services, and must fund the provision of such services at the below rates until implementation commences. Finally, based on the service provider’s testimony, a group paraprofessional is not available as Student is the only one in his class that requires a paraprofessional. To remove Student from his current educational setting to accomplish a group setting, which is DOE’s responsibility, would be inequitable, and DOE shall reimburse the 1:1 paraprofessional for this limited rationale; no change to Student’s IEP is warranted.
Findings of Fact and Decision
IV. Orders
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY:
1. ORDERED that the DOE is directed to implement the recommendations contained in the 4/28/2022 IESP, including:
a. SLT, group setting, 2 times per week, 30-minute sessions
b. OT, individual 1:1, twice per week, 30-minute seessions
c. PT, individual 1:1, twice per week, 30-minute sessions
d. Counseling, group setting, once per week, 30-minute sesions
e. Paraprofessional, full-time, group setting
2. ORDERED that until such time the DOE commences implementation of the
4/28/2022 IESP, the DOE’s Implementation Unit is directed to reimburse and/or directly fund the following services for the 2022-2023, 10-month, school year, with a provider of Parent’s choosing, at the prorated hourly rate of a Related Services Authorization (“RSA”), without the need for the issuance of an RSA, for all the below related services, except for a full-time 1:1 paraprofessional, which shall be at a rate not to exceed $65/hour, within 30 days of receipt of the supporting documentation:
a. SLT, group setting, 2 times per week, 30-minute sessions, at the RSA
prorated rate
b. OT, individual 1:1, twice per week, 30-minute seessions, at the RSA
prorated rate
c. PT, individual 1:1, twice per week, 30-minute sessions, at the RSA prorated rate Findings of Fact and Decision
d. Counseling, group setting, once per week, 30-minute sesions, at the RSA
prorated rate
e. Paraprofessional, full-time, group setting, to be funded at the 1:1 paraprofessional rate not to exceed $65/hour.
DATED: SO ORDERED
October 6, 2025
Dr. Oren Varnai, Esq., IHO Findings of Fact and Decision
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings 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.
Findings of Fact and Decision
EXHIBITS
PARENT EXHIBITS
Exhibit Document Date Pages
A. Request for Impartial Hearing 4/17/2023 5
B. IESP 4/28/2022 11
C. Contract 9/5/2022 4
D. Provider Affidavit 5/18/2023 3
DOE’S EXHIBITS
Exhibit Document Date Pages
1. None None None
IHO’S EXHIBITS
Exhibit Document Date Pages
I. None None None
Footnotes
[1] The 4/28/2022 IESP is the operative IESP for this student for the 2022-2023 school year.
[2] The DOE did not implement the IESP.