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FINDINGS OF FACT AND DECISION
Case Number: 249482
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
School District: New York City Department of Education (District)
Hearing Requested by: [REDACTED] (Parent)
Request Date/Date Complaint Filed: 6/29/2023
Dates of Hearing: 09/14/2023
Actual Record Close Date: 10/30/2023
Date of Decision: 10/30/2023
Date of Distribution: 10/30/2023
Time Sensitive: Yes ☐ No ☒
Impartial Hearing Officer: Teresa R. Nuccio, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/14/2023
For the Student
- [REDACTED], Esq., Attorney for Petitioner
- [REDACTED], Esq., Observing
- [REDACTED], CSW, Director of [agency]
For the New York City Department of Education
- [REDACTED], Esq., Attorney for the District
OATH Impartial Hearing Officers in Training:
[REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]
INTRODUCTION AND PROCEDURAL HISTORY
1. Introduction
The parent filed a Due Process Complaint (DPC) against the district on 6/29/2023.[1] The DPC alleges violations of the Individuals with Disabilities Education Act (IDEA), Article 89 of the New York State Education Law, and New York State Education Law § 3602-c, based on the district’s failure to implement the student’s last-agreed-upon preschool Individualized Education Program (IEP) developed for the dually-enrolled student dated 06/03/2016, resulting in a denial of a free appropriate public education (FAPE) for the school year of 2023-2024.[2] The parent also demands an order of pendency. [3]
It is alleged that the last-agreed IEP dated 06/03/2016 recommends and mandates the following special education services for an extended 12-month school year:
1) Ten (10) hours per week of special education itinerant teacher (SEIT) on a 1:1 basis, direct service in Yiddish.
2) Three (3) 30-minute sessions of Speech and Language Therapy (SLT), on a 1:1 basis, in Yiddish.
3) Two (2) 30-minute sessions of Occupational Therapy (OT), on a 1:1 basis.[4]
2. Procedural History
I was appointed as the Impartial Hearing Officer (IHO) for this case on 6/30/2023. A prehearing conference was held on 9/14/2023. A prehearing conference summary and order (PHCO) was issued, scheduling the due process hearing (DPH) for 9/14/2023. On 9/14/2023, the parent and district appeared for the DPH. The parent offered Exhibits A through E in evidence, which were admitted into the record without objection.[5]
a) The District’s Case
The district waived making an opening statement and stated on the record that they were not conceding any issue, including whether the student was denied a FAPE and would “not [be] putting on a Prong I case.”[6] The district also did not raise any specific defense to the allegations in the DPC or challenge the student’s right to pendency.
The district rested without presenting a case in chief. [7]
b) The Parent’s Case
The parent presented an opening statement pointing out that . . . in these proceedings, the burden of proof and persuasion is on the Department of Education, other than for tuition funding, where for the limited purpose of proving an appropriate program for tuition funding, the burden would be on the Parent. But in this proceeding, where it is a case for services on the 3602-c of the New York Education Law for students in private schools, the burden rests fully with the Department of Education.
The parent’s attorney then acknowledged that although the 2016 IEP mandates SEIT services, the student, because of age, now receives Special Educational Teacher Support Services (SETSS). The district did not present evidence that another program or different services are appropriate for the 2023/2024 school year.[8] Because the district failed to implement the IEP, the parent was forced to retain their own provider and has provided a copy of the contract.[9] The contract signed by the parent and agency sets forth that the agency will provide the SETSS and speech services at the rate of $200 per session for each service. The IEP should be deemed an appropriate program, and the district should fund the services.[10]
c) The Testimony of the Director of the Service Agency
The service agency’s director submitted an affidavit attesting to the number of service hours for SETSS and STL at the hourly rate of $200 for the 2023/2024 school year.[11] The director was sworn in as a witness[12] and cross-examined by the district.[13] The tribunal asked clarifying questions.[14]
In light of the limited cross-examination and lack of evidence on behalf of the district, the parent waived a closing argument.[15] An application for an extension of the compliance date was granted. [16]
Finally, as of the date of the hearing, the parent was unable to locate an OT provider.[17] Therefore, the parent’s attorney requested that the district fund two OT sessions per week, 30 minutes each, as mandated in the IEP once a provider is located. [18]
FINDINGS OF FACT
The student is currently [REDACTED] years of age with a preschool IEP disability classification.[19] At the time this IEP was created, the student was documented with (a) a 33% delay (moderate) in cognitive/linguistic and fine motor/visual perceptual domains, (b) a 25-33% delay (mild to moderate delay) in the social-emotional domain, and (c) moderate delays in receptive and expressive language skills. The student was assessed as bilingual and could use simple word combinations to express himself. [20] The district did not come forward with evidence that (a) the student has been reevaluated since 2016, (b) his needs have changed, or (c) he no longer requires SETSS, SLT, or OT. Therefore, I find all three (3) services to be appropriate based on the evidence in the record.
The director testified on cross-examination that the SETSS teacher receives $170 of the $200 hourly rate, and the SL provider is paid $90 to $120 per hour of the $200 hourly rate. This is the mid-range market rate for bilingual providers,[21] as established by what they “have been paid before from implementation”[22] and based on “networking” with other agencies in the community who provide the same services. [23] This testimony was neither rebutted nor impeached by the district. Therefore, I find the $200 hourly rate to be reasonable and appropriate.
I also find that, pursuant to the contract, the parent remains obligated to pay the provider if the district is not required to do so.[24] There is no evidence of fraud, collusion, or bad faith. Although the parent did not testify, the district chose not to call the parent as a witness in its direct case. [25]
The hearing was 29 minutes in duration, starting at 2:01 P.M. and ending at 2:30 P.M. [26]
CONCLUSIONS OF LAW
1. Burdens of Proof, Persuasion, and Production
The school district carries the burden of proof, including the burdens of persuasion and production, in due process hearings commenced under the IDEA and Education Law § 4404, except in cases where the parent is seeking tuition reimbursement for a unilateral placement, which is not at issue in this case. [27] Accordingly, the burdens of proof, production, and persuasion remain on the district in this case.
“The IDEA does not specify default as the penalty for the failure to serve an appropriate response to the Due Process Complaint Notice because the response is a mechanism to guarantee meaningful parental participation in the student placement process.”[28] An order granted on default would subvert the administrative process and place the student without regard to the evidence of their actual needs.[29] The failure to serve a response to the DPC [or a PWN] is a procedural violation and is only actionable if it affects the student’s substantive rights.[30] This is because the intent of the IDEA is to ensure an “appropriate education,” and not one that provides everything desired by the parent.[31] Therefore, an IHO or Court must fully examine the record even when the district defaults.
2. Free and Appropriate Public Education
The purpose of the IDEA[32] is to provide a FAPE tailored to the unique needs of the special education student through an IEP.[33] Therefore, school districts must implement “extensive procedural requirements to protect the rights of the parents, guardians, and the child, including the right to be notified, inter alia, of a change in the child’s educational placement.”[34] Specifically designed instruction must meet the child’s unique needs in all aspects of their education during classroom instruction[35] and prepare them for further education, employment, and independent living.[36] In sum, a Court or IHO must conduct a two-prong analysis, i.e., (a) whether the school district complied with the procedural requirements in the IDEA and (b) whether the IEP as developed is reasonably calculated to enable the child to receive educational benefits. [37]
To meet its burden, districts must prove by a preponderance of the evidence that an appropriately substantive IEP is developed through adequate compliance with the “extensive procedural requirements,”[38] which includes providing the parents and guardians with “a large measure of participation at every stage of the administrative process.” [39]
A student parentally placed in a private school is entitled to special education services under the IDEA.[40] However, Congress did not delineate rights to any particular service, program, or due process in the IDEA. Instead, this authority is delegated to the state legislatures and agencies for implementation.[41] Therefore, the extent of both the available services and the accompanying due process rights are enumerated in the New York State Education Law and the implementing Regulations of the Commissioner of the Education Department,[42] which have granted nonpublic school students with disabilities the right to any relief available in a civil action under the IDEA.” [43]
Once the written request is received for services in a nonpublic school, the district must review it, and the committee on special education (CSE) must create an IESP “based on the student’s individual needs in the same manner and with the same contents as an individualized education program.”[44] The parent may seek a review of the CSE’s recommendations under Education Law § 4404.[45]
Therefore, to afford equal access to services, the district must comply with all New York state implementing regulations and offer students parentally placed in private schools a FAPE on an equitable basis.
Here, the failure to implement the last-agreed-upon IEP improperly and unlawfully shifted the district’s duty to provide equitable services to the parent.[46] This left the parent no alternative but to self-help in obtaining available providers. [47]
Based on the foregoing failure to implement the operative IEP, the district denied the student a FAPE on an equitable basis.
3. The Remedy
When determining the remedy in a rate dispute case, the State Review Office (SRO) has applied either the Burlington/Carter burden of proof analysis for tuition reimbursement disputes[48] or the compensatory education analysis.[49] However, the SRO has recently leaned more toward the Burlington/Carter[50] analysis when deciding cases where the parent alleges that the district failed to implement an IESP, and the parent seeks an enhanced rate for a privately retained provider. I respectfully vary from this analysis and find the compensatory education standard more analogous since it appropriately places the burden of proof for all issues on the district in non-tuition cases as per the plain language of Education Law § 4044.
A Burlington/Carter tuition reimbursement scenario is distinguishable from Section 3602-c cases because Burlington/Carter involved parents who (1) rejected the school district’s IEP as inappropriate and (2) unilaterally placed their children in private schools. Neither factor is present in a Section 3602-c rate dispute. The parent’s § 3602-c claim does not arise from a disagreement concerning the appropriateness of the IESP program. Instead, the parent’s claim arises from the district’s failure to implement the agreed-upon IESP and provide the student with the mandated services.
By applying a Burlington/Carter analysis to failure-to-implement cases, the parent is forced into a predicament contrary to the purposes of the IDEA and New York state law. If the district fails to implement the IESP, the parents must locate a provider, pay for the services, and then endure the evidentiary burden to cure the district’s default on their obligations under New York State law. This shifting by the district of its IESP obligations in the first instance and then its burdens of proof in an administrative hearing to the parent cannot be countenanced by any tribunal. This would eviscerate Education Law § 3602-c and § 4404, rendering both statutes meaningless. The district cannot just “do nothing” at all times. This would be an inequitable result, causing an educational detriment to the student, and would permit the district to do an “end run” around their obligation under the New York State Education Law and the federal law mandating that funding for special education and related services be made available to such students. [51]
Applying Burlington/Carter also contradicts the legislative intent of Education Law § 3602-c and § 4404 because it would afford students in a general education setting in a nonpublic school fewer procedural and substantive rights than those receiving services while attending public school. The Court of Appeals has also held that Education Law § 3602-c expressly “authorizes services to private school handicapped children and affords them an option of dual enrollment in public schools, so that they may enjoy equal access to the full array of specialized public school programs.” [52] Therefore, to afford equal access to services, the student must be afforded equal due process rights under Education Law § 4404. Thus, applying Burlington/Carter creates unintended outcomes that defeat these legislative mandates – holding nonpublic school students to a higher burden of proof than public school students.
Finally, an IHO and SRO are bound by the plain language of Education Law § 4404 [5], which defines tuition as “instructional services” as defined by the commissioner. This definition does not include the term “related services.” The commissioner has specifically defined related services as “developmental, corrective, and other supportive services as are required to assist a student with a disability,” [53] without reference to “instructional services” or the like.
Here, regardless of which standard was to be applied by this tribunal, the district failed to defend the allegations in the complaint and put forth a legal defense or factual argument regarding the (a) appropriate rate for services, (b) appropriateness of the provider, or (c) sufficiency of the parent’s evidence before or at the DPH. The district did not serve a response to the DPC,[54] a sufficiency challenge to the DPC,[55] or raise any defenses at the DPH. At all times, the district failed to raise defenses to any claims in the DPC. Therefore, the tribunal is foreclosed from conducting an inquiry sua sponte into any defense not raised by the district. [56]
I find that the parent sufficiently met the pleading requirement of setting forth a proposed resolution of the problem in the DPC,[57] i.e., an enhanced hourly rate for services as substantiated by the parent’s evidence of $200 for SETSS and SLT services that the district failed to implement by licensed or certified providers, thereby giving fair notice of the claims to the district.[58] The SRO has upheld rates of $150,[59] $175,[60] and $200 per hour,[61] and therefore, I find the requested rate within the reasonable range for services.
The district shall also fund the student’s OT at an enhanced rate of $200 per hour or the highest rate paid by the district’s implementation unit to the specific provider of the parent’s choosing in the 12 months preceding the date of this order, whichever is greater.
An order of pendency is also granted.
ORDERS
Based on the foregoing, IT IS NOW HEREBY:
ORDERED that the district/respondent shall directly fund the following for the 12-month 2023/2024 school year by a provider at the parent’s choosing:
1) Ten (10) hours per week of special education itinerant teacher (SEIT) on a 1:1 basis, direct service in Yiddish.
2) Three (3) 30-minute sessions of Speech and Language Therapy (SLT), on a 1:1 basis, in Yiddish.
3) Two (2) 30-minute sessions of Occupational Therapy (OT), on a 1:1 basis.
IT IS HEREBY FURTHER ORDERED that the parent’s request for an order of pendency is GRANTED for the 12-month 2023/2024 school year, and it is further
ORDERED that the district/respondent shall directly fund pendency to the provider of the parent’s choosing for Yiddish SETSS and Yiddish SLT retroactively to the date of the filing of the DPC at $200 per hour for the 12-month 2023/2024 school year, and it is further,
ORDERED that the district/respondent shall also fund pendency for the student’s OT at an enhanced rate of $200 per hour or the highest rate paid by the district’s implementation unit to the specific provider of the parent’s choosing in the 12 months preceding the date of this order, whichever is greater, retroactively to the date of the filing of the DPC for the 12-month 2023/2024 school year, and it is further
ORDERED that the district/respondent shall also fund the student’s OT at an enhanced rate of $200 per hour or the highest rate paid by the district’s implementation unit to the specific provider of the parent’s choosing in the 12 months preceding the date of this order, whichever is greater, and it is further
ORDERED that the district/respondent shall pay the licensed or certified providers of the parents’ choosing within thirty-five (35) days of receipt of invoices for services rendered.
Dated: October 30, 2023
SO ORDERED,
Teresa R. Nuccio, Esq.
Impartial Hearing Officer
(Digitally Signed)
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has 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 of with the Office of State Review of the State Education 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
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
Parent: [REDACTED]
Agency: [REDACTED]
Director: [REDACTED], CSW
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT’S EXHIBITS
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| A | Impartial Hearing Request | 07/01/2023 | 5 |
| B | Individualized Education Program | 06/03/2016 | 13 |
| C | Affidavit of [DIRECTOR] | 09/05/2023 | 1 |
| D | Parent’s Contract with [AGENCY] | 07/01/2023 | 1 |
| E | Teachers’ Certifications | Undated | 2 |
DISTRICT’S EXHIBITS - NONE
IHO EXHIBITS - NONE
Objection Form
Footnotes
[1] P-A
[2] P-A1
[3] P-A2
[4] P-B10 (1)
[5] T20
[6] T21:1-11
[7] T21:12-16 (2)
[8] T21:22-25 and pp. 22-23
[9] P-D
[10] T22-23
[11] P-C
[12] T26:14-25
[13] T27-30
[14] T30-31
[15] T31:15-19
[16] T31:21-25, 32:1-25
[17] T32:9-15 (3)
[18] Id.
[19] P-B1
[20] P-B4
[21] T28:8-19
[22] T28:20-24
[23] T29:1-6 (4)
[24] P-D
[25] See PHCO p.4, ¶13 [c] [i]
[26] T18:7 and 33:11-12
[27] R.E. v. New York Dep’t of Educ., 694 F.3d 167, 184-185 [2d Cir. 2012]; and see New York Education Law §4404[1][c]. (5)
[28] Sykes v. District of Columbia, 518 F. Supp. 2d 261, 267 [DCDC 2007]
[29] Id.
[30] R.B. v. New York City Dep’t of Educ., 2011 U.S. Dist. LEXIX 106273, p.15; and Sykes v. District of Columbia, 518 F. Supp. 2d 261, 267, citing Lesesne v. District of Columbia, 447 F.3d 828, 832 [D.C. Cir. 2006]; compare Jalloh v. District of Columbia, 535 F. Supp.2d 13, 20 [D.C.D.C. 2008]
[31] Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 [2d Cir. 1989].
[32] 20 U.S.C. §§ 1400-1482
[33] See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 183 [1982] [hereinafter referred to as “Rowley” [internal quotations omitted].
[34] Id.
[35] Id. at p.188
[36] See generally, Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Rowley, 458 U.S. 206-07; 20 U.S.C. §1400[d][1][A]-[B]. (6)
[37] Reid v. District of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] and R.E. v. New York City Dep't of Educ., 694 F.3d 190-191
[38] Rowley, 458 U.S. 182
[39] Rowley, 458 U.S. 205
[40] See H.C. v. Colton-Pierrepont Cent. Sch. Dist., 341 Fed. Appx. 687, 691 [2d Cir. 2009]. The Second Circuit held that students enrolled in and attending a nonpublic school can receive services under the IDEA. The right to services under the IDEA is distinct from the right to due process.
[41] See 34 C.F.R. § 300.140 [a] and [c] and 34 C.F.R. § 300.151 through 34 C.F.R. § 300.153; and Mistretta v. United States, 488 US 361, 372-373 [1989] [Congress simply cannot do its job absent an ability to delegate power under broad general directives…this Court has deemed it "constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.] (7)
[42] Education Law § 3602-c and § 4401 through § 4404, and 8 NYCRR § 200.1 and § 200.5
[43] Education Law § 4404 [3] [b].
[44] Education Law § 3602-c [2] [b] [1]
[45] Id.
[46] See, e.g., Application of a Student with a Disability, Appeal No. 21-068.
[47] Id. (8)
[48] See Application of the New York City Department of Education, Appeal No. 23-071 {The mechanics of decisions in tuition reimbursement and direct funding cases have evolved from the two United States Supreme Court cases of Sch. Comm. of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359 [1985] and Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 [1993], which have morphed into the “three-prong” analytical framework that has come to be known as the “Burlington/Carter” test or analysis. A tribunal must use this framework to determine that (1) the district’s proposed placement was inadequate or inappropriate, (2) the parent’s alternative private placement is appropriate to meet the student’s needs, and (3) the equitable considerations support the claim.}
[49] See Application of a Student with a Disability, Appeal No. 23-065 [To remedy a past deficient educational program (Reid v. Dist. of Columbia, 401 F.3d 516, 525 [D.C. Cir. 2005]), the tribunal may order compensatory educational services the student should have received in the first place” to provide the educational benefits that “likely would have accrued from special education services the school district should have supplied in the first place” (Id. at p.518). The district has the burden of proof, production, and persuasion regarding the appropriateness of a compensatory education award, but the parent must identify the specific remedy they seek so that the tribunal can craft an appropriate remedy for the years it is claimed the student was denied a FAPE (Education Law § 4404[1][c] and 8 NYCRR § 200.5 [i] [1] [v]). This is akin to a pleading requirement to provide the school district with fair notice of the claim (See generally, Rombach v. Change, 355 F.3d 164, 171 [2d Cir. 2004]). The tribunal may order that an award of services be placed in a bank to be used by a certain date to allow flexibility in the implementation (M.M. v. New York City Dep’t of Educ., 2017 U.S. Dist. LEXIS 47812, *25 [S.D.N.Y. 2017]}.
[50] See Application of the New York City Department of Education, Appeal No. 23-071 (9)
[51] 20 U.S.C. § 1412 [a] [10] [A] [i] “To the extent consistent with the number and location of children with disabilities in the State who are enrolled by their parents in private elementary schools and secondary schools in the school district served by a local educational agency, provision is made for the participation of those children in the program assisted or carried out under this subchapter by providing for such children special education and related services...” (10)
[52] Board of Education v. Weider, 72 NY2d 174, 184 [1988] [emphasis added]
[53] 8 NYCRR § 200.1 [qq]
[54] 8 NYCRR §200.5 [i] [4] [a] – [d]
[55] 8 NYCRR §200.5 [i] [3]
[56] See Application of a Student with a Disability, Appeal No. 23-036, p.8 (11)
[57] 8 NYCRR §200.5 [[i] [1] [v]
[58] See generally, Rombach v. Change, 355 F.3d 164, 171 [2d Cir. 2004]
[59] Application of a Student with a Disability, Appeal No. 11-045 (July 25, 2011), which awarded a SETSS rate of $150 per hour 11 years ago. According to the U.S. Department of Labor’s Bureau of Labor Statistics, Consumer Price Index Inflation Calculator (found at https://www.bls.gov/data/inflation_calculator.htm, as of 5/8/22), $150.00 in July 2011 has a purchasing value of $204.36 as of Sept. 2023 (the latest month calculable). See Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 A.D.3d 13 (2nd Dept. 2009) (judicial notice may be extended to government websites that provide official data).
[60] See, e.g., Application of a Student with a Disability, Appeal No. 21-138 at pp. 12-13.
[61] Application of a Student with a Disability, Appeal No. 21-183, at pp. 20-21. (12)