New York City Department of Education, Impartial Hearing Decision

NEW YORK CITY DEPARTMENT OF EDUCATION

IMPARTIAL HEARING OFFICE

STUDENT, by and through his/her PARENT(S), ^[1]

Petitioner(s),

- against -

THE NEW YORK CITY DEPARTMENT OF EDUCATION,

Respondent

Case No. 249693

Record Close Date: 10/01/23

FINDINGS OF FACT AND DECISION

HASHIM RAHMAN, Hearing Officer:

The Petitioner is the parent of a Student who requires special education services. (See Pet’r’s Ex. A at 1-2.) On June 30, 2023, the Petitioner filed a due process complaint (“Complaint”) against the New York City Department of Education (hereinafter “DOE” or Respondent). (See id. at 6.) In the Complaint, the Petitioner asserts that the DOE failed to develop an appropriate educational program for the Student for the 2023-2024 school year. (Id. at 1-2.) The undersigned hearing officer was appointed for this matter on July 6, 2023.^[2] Thereafter, a prehearing conference was held on August 8, 2023, and a due process hearing was held on August 25 and August 31 of 2023. (See Hr’g Tr. 1-116.)

THE DUE PROCESS COMPLAINT

As per the Complaint, the Petitioner asserts that the Student has been classified with autism. (Pet’r’s Ex. A at 2.) During the 2022-2023 school year, the Student received “twenty (20) hours per week of individual (1:1) bilingual ABA/SEIT services and bilingual related services of Speech Language Therapy (‘SLT’) 3x30 1:1 and Occupational Therapy (‘OT’) 2x30 1:1.” (Id.) Such services were funded by the DOE pursuant to a hearing officer’s decision. (Id.)

The Complaint states that the Student has not received an educational program from the DOE for the 2023-2024 school year. (Id.) On account of this, the Student seeks DOE funding for the current school year for the same educational services that were received during the prior school year. (See id.) The Complaint also states that the Petitioner “is entitled to the cost of independent and/or privately obtained evaluations necessary for the student to receive FAPE and/or equitable special education and related services.” (Id. at 3.)

THE DUE PROCESS HEARING

I. Facts and Assertions Presented

At the hearing the DOE presented no documents or witnesses. (See Hr’g Tr. 15-16.) The Petitioner presented eight documents and five witnesses. (See Hr’g Tr. 15-16, 69-70.) The Petitioner’s documents, proffered as exhibits, included the Complaint, a decision for case 242637, a ten-day notice, a services agreement, invoices, and ledgers. (See id.) The SEIT^[3] Teacher testified that she has been providing services to the Student since February of 2023. (Hr’g Tr. 86.) She testified that the methodologies she used involving modeling, visual schedules, and positive reinforcement yielded improvements in the Student’s behavioral and learning skills. (Id. at 81-84.) The Financial Officer for the SEIT Agency testified that an hourly rate of $175 is charged for the said services. (Id. at 41.) The SL Pathologist testified regarding her credentials; she said she is familiar with the Student; she explained that she would be able to implement the services at issue; and she said that her hourly rate is $175 per hour. (Id. at 98-99.) The Occupational Therapist testified regarding his credentials; he said he is familiar with the Student; he explained that he would be able to implement the services at issue; and he said that his hourly rate is $175 per hour. (Id. at 104-105.) The Parent testified that she is seeking, inter alia, to have the DOE conduct a bilingual neuropsychological evaluation of the Student. (Id. at 64.) The Parent also stated that the Student has been placed in a private school. (See id. at 55.)

ANALYSIS

I. General Legal Framework

Under the Individuals with Disabilities Education Act (“IDEA”), an educational agency must offer a free and appropriate public education (“FAPE”) to each student with a disability residing in the state. 20 U.S.C. § 1412(a)(1)(A). The IDEA defines FAPE as “special education and related services that have been provided at public expense, under public supervision and direction, and without charge . . .” that meet state standards and are provided in conformity with IEP requirements. 20 U.S.C. § 1401(9). However, the IDEA confers no entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools. See 34 C.F.R. § 300.137(a). Furthermore, a due process hearing officer does not have jurisdiction over FAPE issues for students enrolled in private schools by their parents (see 34 C.F.R. § 300.140(a)), subject to a child-find exception (see id. § 300.140(b)). This is because the IDEA’s due process hearing rights do not apply to such privately-placed students. See 34 C.F.R. § 300.140(a).

Nonetheless, in New York, a school district 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. L. § 3602-c(2)(b)(1). Furthermore, if a parent properly requests such equitable services, the school district must develop an educational services plan in the same manner as an IEP. Id. Also, under New York law a parent has the right to seek review of an educational services plan and commence a due process hearing if equitable services are denied, and a due process hearing officer does have jurisdiction to decide such issues. See id.

Since the Student in the present case has been parentally placed in a private school, the case at bar pertains to equitable services under New York education law rather than FAPE under the IDEA. It is nonetheless prudent to use what is known as the Burlington-Carter analysis to reach a conclusion on the merits. See Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985) ("Burlington"); Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12 (1993) ("Carter"). Under the Burlington-Carter analysis, the determination of whether a parent is entitled to reimbursement for a private educational program is based on the three-prong test "which looks to (1) whether the school district's proposed plan will provide the child with a free appropriate public education; (2) whether the parents' private placement is appropriate to the child's needs; and (3) a consideration of the equities." C.F. ex rel. R.F. v. N.Y.C. Dep't of Educ., 746 F.3d 68, 73 (2d Cir. 2014). The Burlington-Carter test has also been used for cases pertaining to third-party educational service providers. See In re: Student with a Disability, Appeal No. 20-140, 120 LRP 31098 (N.Y. SRO Sept. 23, 2020); In re: Student with a Disability, Appeal No. 20-099, 120 LRP 31070 (N.Y. SRO Sept. 21, 2020); In re: Student with a Disability, Appeal No. 20-094, 120 LRP 31066 (N.Y. SRO Sept. 9, 2020). The test has also been utilized for consideration of a SETSS reimbursement request in an equitable services case, like the one here. See New York State Educational Agency, Appeal No. 22-088, 122 LRP 41392 (N.Y. SRO Sept. 6, 2022).

II. Equitable Services

In the present case, prong one of the three-part Burlington-Carter test shall be focused on a determination of whether equitable services under New York law - rather than FAPE under the IDEA - was provided. With respect to this prong, the DOE bears the burden of proof. See EDUC. L. § 4404(1)(c). Here, the DOE presented no documentary evidence and no witnesses. (See Hr’g Tr. 15-16, 69-70.) It also did not make any arguments asserting that equitable services were provided. (See id. at 107-108.) Given this, the DOE has failed to meet its burden and I thus find that equitable services were not provided to the Student.

III. Appropriateness

For the second prong of the test, the Petitioner bears the burden of proving whether the unilateral placement in private educational services was appropriate. See EDUC. L. § 4404(1)(c). The appropriateness of placement hinges on whether it is "reasonably calculated to enable the child to receive educational benefits." Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006), (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)). “No one factor is necessarily dispositive in determining whether parents' unilateral placement” is reasonably calculated to confer educational benefits to the child. Frank G. at 364-365. To qualify for reimbursement a parent “need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child . . .” Id., (quoting Rowley, 458 U.S. at 188-89). Based on testimony and documents presented, the Petitioner has established that the private educational services obtained for the Student are appropriate. (See Hr’g Tr. 41, 81-84, 98-99, 104-105.) As such, the Petitioner has met her prong-two burden.

Furthermore, the record shows no concerns regarding the equity of an award to the Petitioner.^[4] Accordingly, I find that the Petitioner has met the statutory burden under the Burlington/Carter test with respect to the private services obtained and funding is warranted.

CONCLUSION AND ORDER

I find that DOE failed to provide the Student with equitable services for the 2023-2024 school year. As such, the following relief is ordered.

1) The DOE is directed to fund twenty hours per week of one-to-one bilingual SEIT services at a rate not to exceed $175 per hour. Such services are to be provided on a twelve-month basis. Funding is to be effectuated by directly paying the SEIT Agency.

2) The DOE is directed to fund one-to-one bilingual speech and language therapy administered at a frequency of three times per week for thirty minutes. Such services are to be provided on a twelve-month basis. Funding is to be effectuated by directly paying the SL Pathologist at a rate not to exceed $175 per hour.

3) The DOE is directed to fund one-to-one occupational therapy administered at a frequency of twice a week for thirty minutes. Such services are to be provided on a twelve-month basis. Funding is to be effectuated by directly paying the Occupational Therapist at a rate not to exceed $175 per hour.

4) The DOE is directed to conduct a bilingual Russian-English neuropsychological evaluation of the Student within forty-five days of the date of this order.

Dated: 10/07/23

SO ORDERED

/s/ ___

HASHIM RAHMAN,

HEARING OFFICER

Sent via Email to All Parties

APPENDIX A – EXHIBITS BY PETITIONER(S)

No.	Date	Name of Document	# pp.
A	06/30/23	Impartial Hearing Request	6
B	06/20/23	Ten Day Notice	2
C	02/04/23	Findings of Fact and Decision (IHO Case No.242637)	15
D	07/01/23	SEIT Service Agreement	4
E	08/25/23	Affidavit of SEIT Teacher	8
F	July-August 2023	SEIT Time Ledgers	2
G	July-August 2023	SEIT Invoices	2
H	July-August 2023	SEIT Notes	7

APPENDIX B – TERMS AND REFERENCES

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Footnotes

[1] Personally identifiable information has been removed from this decision but is shown in the appendix.

[2] A Notice of Appointment that was emailed to the Impartial Hearing Officer by the New York City Impartial Hearing Office.

[3] SEIT means Special Education Itinerant Teacher. (See Hr’g Tr. 27.)

[4] It should be noted that the Petitioner did not present evidence that she owes a financial obligation to the SL Pathologist or to the Occupational Therapist. This raises some concern as to whether it would be equitable to order the DOE to fund such services. However, this consideration is balanced by the fact that the DOE was largely absent from this proceeding and it did not contest the relief being sought by the Petitioner. (See Hr’g Tr. 108.)