New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Field	Value
Case Number	249345
Student’s Name	REDACTED (hereinafter “Student”)
Date of Birth	REDACTED
School District	REDACTED (hereinafter “School District”)
Date of Filing	06/27/2023
Hearing Requested by	REDACTED (hereinafter “Parent”)
Dates of Hearings	08/03/2023; 08/24/2023; 09/27/2023; 10/24/2023; 10/30/2023
Record Close Date	12/04/2023
Date of Decision	12/04/2023
Impartial Hearing Officer	R. Emily Rodriguez, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 3, 2023:

For the Student:

REDACTED (hereinafter “Parent Attorney I”)

For the Department of Education (“DOE”):

REDACTED (hereinafter “DOE Representative”)

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 24, 2023:

For the Student:

REDACTED (hereinafter “Parent Attorney II”)

For the Department of Education (“DOE”):

DOE Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMEBR 27, 2023:

For the Student:

Parent Attorney I

For the Department of Education (“DOE”):

DOE Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 24, 2023:

For the Student:

Parent Attorney I

For the Department of Education (“DOE”):

DOE Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 30, 2023:

For the Student:

Parent Attorney I

REDACTED (hereinafter “Parent”)

For the Department of Education (“DOE”):

DOE Representative

BACKGROUND

Student^[1] is a REDACTED-year-old child who is classified by the New York City Department of Education’s (“DOE”) Committee on Special Education (“CSE”) as a child with Speech or Language Impairment. (D – 1)^[2]. Student’s classification and entitlement to special education programming and services is not in dispute.

Parent seeks an order directing the DOE to reimburse the parents for the payments they made for transporting Student to receive their SETSS (Special Education Teacher Support Services), and then back home or to school, during the 2021-2022 school year. (P – A).

DOE filed a motion to dismiss alleging that since Parent had previously filed for payment for SETSS for the 2021-2022 school year the matter should be dismissed under res judicata. (IHO – II). Parent filed a motion in response to the DOE’s motion. (IHO – III). On September 27, 2023 I met with the parties and found that DOE’s motion to dismiss should be dismissed and that the matter should be allowed to proceed to a due process hearing. (September 27, 2023 T).

DOE presented a case consisting of direct testimony of Parent and documents placed in evidence by DOE Representative. (D – 1-5). Parent presented a case consisting of documents placed in evidence by Parent’s Attorney. (P – A-E).

There are three IHO exhibits which include DOE’s motion to dismiss, Parent’s response to DOE’s motion to dismiss and Parent’s basis in law to support Parent’s claim for transportation expenses. (IHO – I, IHO – II, IHO – III).

PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s due process complaint (“DPC”), filed on or around June 27, 2023. (P – A). The resolution period expired without the parties reaching an agreement. I was appointed on June 28, 2023, to conduct an impartial hearing pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1) to determine the claims in the DPC. A pre-hearing conference in this matter was held on August 3, 2023. Closed hearings were held on October 24, 2023 and October 30, 2023.

The initial compliance date was September 10, 2023. Extensions were granted extending the compliance date to December 9, 2023. The record closed on December 4, 2023.

JURISDICTION

A decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (“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 Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200.

LEGAL FRAMEWORK

The IDEA directs that, in general, an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 NYCRR § 200.5(j)(4)(ii).

The IDEA is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). 34 C.F.R. § 300.13. A FAPE is further defined as “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 Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). Two purposes of the IDEA are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B).

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][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

In New York, “Boards of education . . . 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 or person in parental relation of any such student.” N.Y. Educ. Law § 3602-c(2)(a). The “request shall be reviewed by the committee on special education [CSE] of the school district of location, which shall develop an individualized education service program [IESP] for the student . . . [and] assure that special education programs and services are made available to student with disabilities . . . on an equitable basis” to programs at other public or nonpublic schools in that district. Id. at § 3602-c(2)(b) (emphasis added). This law is known as the “dual enrollment” statute. See Application of a Student with a Disability, Appeal No. 20-115 (Sept. 3, 2020) at pg. 1. Offering services on “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 . . . 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.” 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). As such, 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.” Id. If a dispute arises between a parent and a school district over the provision of services under an IESP, “[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil” via an impartial due process hearing, as called for by the IDEA. Education Law § 3602-c(2)(b)(1); 20 U.S.C. §§ 1221e-3, 1415(e)-(f); Education Law § 4404(1); 34 CFR §§ 300.151- 300.152; 8 NYCRR §§ 200.5(h)-(l). Where it is determined that IESP services were not appropriately provided on an equitable basis, the New York State Education Law permits an IHO to redress the violation under the same broad authority available for violations of the IDEA. SeeApplication 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]). The only limitations on the scope of relief are that it must “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) and damage awards are not available under the IDEA. SeePolera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002). Thus, the tribunal “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” See Doe v. East Lyme, 790 F.3d at 454.

Further, the IDEA requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ . . . even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport” Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 [11th Cir. 1997] (internal citation omitted). Transportation may be deemed necessary “if in its absence a disabled child in Current school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’, . . . or special education program benefits “comparable in quality, scope, and opportunity for participation . . . [to those provided for] students enrolled in public schools’” Donald B., 117 F.3d at 1375 (internal citations omitted). In addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” Education Law §§ 4401[1], 4402[4][a]; see also Education Law § 4401(2); 8 NYCRR § 200.1[ww]).

FINDINGS OF FACT

After a full review of the record generated at hearing, I make the following findings of fact and determinations:

Student is a REDACTED-year old, classified by the CSE as a student with a Speech or Language Impairment who has been placed by Parent at a private school.

Student’s Individualized Education Services Program (IESP) for the 2021-2022 school year, dated January 28, 2020, recommended a 10-month special education including SETSS, direct service/group service, 4 periods per week, in Yiddish, Speech-Language Therapy, individual, 2x30 in Yiddish and Occupational Therapy, individual, 2x30, in English. (D - 1).

Parent filed a DPC on October 7, 2021 seeking relief for the 2021-2022 school year. (D – 2). The claims alleged in this DPC were resolved through a resolution agreement that was drafted on March 22, 2022. (D – 3).

Parent then filed a DPC on June 27, 2023 seeking reimbursement for transportation expenses incurred by Student to attend SETTS with SETTS Provider at SETTS Provider Address. (P – A, D – 4).

DOE file a motion to dismiss alleging Parent’s claims were covered by the resolution of the October 7, 2021 DPC. I dismissed the DOE’s motion to dismiss as the Parent did not include a claim for transportation costs in the October 7, 2021 DPC so this issue was not resolved in the prior claim. (September 27, 2023 T).

Parent submitted twenty-one (21) invoices from SETTS Provider which indicate Student attended 106 sessions at SETTS Provider Address during the 2021-2022 school year. (P – C – pgs. 1-21). The invoices also show that Student traveled from Student Home Address which is .9 miles away from SETTS Provider Address. (October 30, 2023 T).

The DOE conceded that Student was entitled to SETTS for the 2021-2022 school year when they chose to resolve the October 7, 2021 DPC.

Parent is requesting reimbursement for car service in the amount of $2, 756^[3] but there is nothing in the hearing record that equitably justifies granting this family more than the cost of a MetroCard. Therefore, I find the DOE must reimburse Parent the cost of a roundtrip MetroCard for Student and Parent to attend the 106 sessions the DOE funded through the resolution agreement in the amount of $1,166.^[4]

Other Relief

The Supreme Court has held that the authority of administrative hearing officers in fashioning equitable relief is broad. Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 237 (2009). However, the IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party; and entitlement, if any, to costs must be determined by a court of competent jurisdiction. Only a court can determine who is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the Parent is the prevailing party entitled to costs.

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 on the foregoing, it is hereby:

ORDERED, that Student is entitled to appropriate transportation services and/or funding for Student and Parent to commute to and from SETTS Provider Address, and it further

ORDERED, that the DOE shall reimburse Parent the cost of a roundtrip MetroCard for Student and Parent to attend 106 SETSS sessions during the 2021-2022 school year in the amount of $1,166 within 30 days of the date of this order.

SO ORDERED.

DATED: December 4, 2023

___RER____(Signed Electronically)___

R. Emily Rodriguez, Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

DOE EXHIBITS

Exhibit	Date	Document Title	Number of Pages
1	01/28/2020	IESP	9
2	10/07/2021	DPC	4
3	03/22/2022	Resolution Agreement	3
4	06/27/2023	DPC	4
5	01/25/2020	IESP Attendance Page	1

PARENT EXHIBITS

Exhibit	Date	Document Title	Number of Pages
A	09/12/2022	Impartial Hearing Request	4
B	11/23/2021	INDIVIDUALIZED EDUCATION SERVICES PROGRAM (“IESP”)	13
C	06/03/2022	FOFD	6
D	09/02/2022	10 DAY NOTICE	1
E	01/24/2023	PROVIDER AFFIDAVIT	5
F	UNDATED	TEACHER CERTIFICATE	1

IHO EXHIBITS

Exhibit	Date	Document Title	Number of Pages
I.	10/27/2023	Basis in the law for Parent’s claim	2
II.	09/08/2023	DOE Motion to Dismiss	16
III.	09/15/2023	Parent Motion to Dismiss Response	3

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Footnotes

[1] No personal identifying information is contained within the body of this FOFD. For personal identifying information, please refer to the attached appendix. Further, this FOFD contains no references to the gender binary. The pronoun “they” is used as needed

[2] The Hearing Officer Exhibits will be cited to as “IHO - followed by a roman numeral”; Parent’s Exhibits will be cited to as “P - followed by a letter”; and DOE Exhibits will be cited to as “D - followed by a number”. References to the hearing transcript will be cited to as “T - followed by a page number”.

[3] $26 per ride times 106 SETSS sessions equals $2,756.

[4] Roundtrip MetroCard during 2021-2022 school year equals $5.50 times 2 = $11. $11 times 106 SETTS sessions = $1,166.