New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 601489 - NYC: 249410

FINDINGS OF FACT AND DECISION

Case Number: 249410

Student’s Name: [REDACTED]

District of Private School Location: District # [REDACTED]

Impartial Hearing Officer: DI’INDRA FORGENIE-DHANANTWARI

Date of Filing: 06/29/2023

Hearing Requested by: Parent

Date of Hearing: 09/27/23 & 11/8/23

Record Close Date: 12/11/2023

Date of Decision: 12/12/2023

BACKGROUND

The Parent, through counsel, filed Due Process Complaints (“DPCs”) on or about June 29, 2023 under case number 249410 for the 2021-2022 and 2022-2023 school years and on or about August 10, 2023 under case number 252451 for the 2022-2023 school year. On August 10, 2023 the undersigned IHO consolidated the matters and both cases now proceed under case number 249410.

Under DPC number 249410 the Parent alleges that the DOE failed to implement an individualized education service plan (“IESP”) for the 2021-2022 and 2022-2023 school years. Ex. A. As a result, the Parent had no choice but to secure a SETTS Service Provider at a designated location outside of the Student’s school and home and the only way for the Student to receive the SETSS services was to travel to and from the SETSS Service Provider which the Parent paid for out of pocket. As a remedy for the DOE’s failure, the Parent seeks reimbursement for the transportation cost to and from the selected SETSS Service Provider.

Under DPC number 252451 the Parent alleges that the DOE failed to implement an IESP for the 2022-2023 school year. Ex. J. The Parent seeks a compensatory education award consisting of 5 periods a week of direct individual SETSS services for the 10-month school year, provided by the SETSS Service Provider, at their prevailing rate of $195 per hour.

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 free appropriate public education (“FAPE”) on an equitable basis for the 2021-2022 and 2022-2023 school years, and that the relief Parent seeks is appropriate compensatory relief.

PROCEDURAL HISTORY

I was appointed to on June 30, 2023 and case number 252451 on August 10, 2023. A prehearing conference was held virtually on August 10, 2023 for case number 249410. On August 10, 2023 case numbers 249410 and 252451 were consolidated. On September 27, 2023 and November 8, 2023, both parties appeared virtually for a hearing on the merits. The DOE did not seek to introduce witness testimony nor any other evidence. Additionally, the DOE conceded it had failed to offer the Student equitable services for the school years at issue. Tr. 11/8/23 p.69. Parent submitted thirteen exhibits into the record on consent of the DOE. Parent’s counsel also submitted the testimony of the Parent and the owner and administrator of the SETSS Service Provider (hereafter “Administrator”). Parent’s counsel made an opening and closing statement. The DOE declined to make an opening and closing statement.

FINDINGS OF FACT 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 2021-2022 and 2022-2023 school years. Ex. A; Ex. J. Furthermore, it is uncontested that the Private School is located within the geographic boundaries of the DOE. Id. The Parent did not challenge the content of the IESP, merely the delivery of the recommended services. Id.

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 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)).

Here, there is no dispute that the Student is entitled to services pursuant to the IESP dated December 16, 2021. Ex. B. The DOE conceded that they did not provide the Student with equitable services. Additionally, the Parent alleges and credibly testified that the DOE failed to secure a provider to implement 5 periods a week of Direct Service SETSS and the DOE, which bears the burden of proof, has failed to introduce any evidence to the contrary. Tr.11/8/2023 p. 92.

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.

A district cannot be absolved of its statutory obligation to implement services for the student simply by being inactive in implementing the mandated services. The DOE had the obligation to provide services to the Student in conformity with the IESP (Educ. Law § 3602-c(2)(a), (b)(l);. In failing to do so, the DOE failed to provide the Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.

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 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").

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).

The DOE is required under the due process procedures set forth in New York State law to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that he would have been but for the denial of a FAPE. The DOE had an opportunity during the impartial hearing to set forth its position regarding the appropriate compensatory education remedy. The DOE did not introduce any evidence regarding appropriate relief.

Given that the DOE conceded it did not provide the Student with equitable services for the 2021-2022 and 2022-2023 school years, and based on that failure the Parent was left to secure their own SETSS Service Provider, I find reimbursement for the cost of transportation to and from the SETSS Service Provider is reasonable and appropriate. Furthermore, I find no issue with the cost of the transportation which is approximately $26 per round trip.

I have considered both parties’ positions and find that the Student should have received instruction as mandated by the January 10, 2022 IESP for the 10-month 2022-2023 school year. As there is no dispute as to the appropriateness of the IESP recommendation, this same number of sessions are appropriate to put the Student in the position they would have been in but for the DOE’s failure to implement the IESP.

The Administrator testified credibly that the SETSS Service Provider provided center based SETSS services to the Student for the 2022-2023 school year at a rate of $195 per hour. Tr. 11/8/23 p. 97-99. The DOE did not challenge the qualifications or credentials of the Parent’s chosen SETSS provider. Based on the evidence presented, I find that the Parent is entitled to direct funding for the 5 SETSS services a week provided to the Student by the Service Provider at their enhanced rate of $195 per hour for the 2022-2023 10-month school year.

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 2021-2022 and 2022-2023 school years.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

1. The DOE shall fund the following compensatory services for the 2021-2022 and 2022-2023 school years:
   1. The DOE shall reimburse the Parent for transportation of the Student to and from the SETSS Service Provider, as follows, $3,276 for the 2021-2022 school year and $4,862 for the 2022-2023 school year;
   2. The DOE shall reimburse the Parent for the cost of transportation as described above within 35 days of submission of proof of payment;
   3. The DOE shall fund 5 hours of SETSS per week for the 2022-2023 10-month school year, at an enhanced rate, not to exceed, $195 per hour. The total reimbursable hours should not exceed 197 hours;
   4. The DOE shall pay the SETSS Service Provider listed above within 35 days of receipt of invoices for services rendered.

Dated: 12/12/2023

Di’Indra Forgenie-Dhanantwari, Esq.

Di’Indra Forgenie-Dhanantwari, 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.

DISTRICT EVIDENCE

Exhibit	Title	Date	Pages
1.	none

PARENT EVIDENCE

Exhibit	Title	Date	Pages
A.	Impartial Hearing Request	June 29, 2023	4
B.	Individualized Education Services Program	December 16, 2021	14
C.	Vendor Monthly Service Invoice Form For 21-22	Various	8
D.	Transportation Reimbursement Voucher For 21-22	Various	22
E.	Invoices From Tovar Transportation For 21-22	Various	7
F.	Vendor Monthly Service Invoice Form For 22-23	Various	14
G.	Transportation Reimbursement Voucher For 22-23	Various	30
H.	Invoices From [REDACTED] Transportation For 22-23	Various	10
I.	Letter of [REDACTED] (Mother)	September 19, 2023	1
J.	Impartial Hearing Request #252451	August 10, 2023	4
K.	Providers’ Certificates	September 8, 2022	4
L.	Parent Contract	September 8, 2023	1
M.	Progress Report	June 24, 2023	4

IHO EXHIBITS

Exhibit	Title	Date	Pages
I.	none