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CASE NUMBER: 604252 - NYC: 251943
FINDINGS OF FACT AND DECISION
Student’s Name [1]: REDACTED (“Student”)
Date of Birth: REDACTED
School District: # REDACTED
Hearing Requested by: REDACTED (“Parent”)
Request Date/Date Complaint Filed: 07/21/2023
Date(s) of Hearing: 09/12/2023
Actual Record Closed Date: 09/12/2023
Date of Decision: 09/12/2023
Date of Distribution if Different than Decision Date: N/A
Time Sensitive: No
Hearing Officer: Harry A. Christodoulou
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 12, 2023
For the Student:
REDACTED (hereinafter referred to as “Parent’s representative”) For the Department of Education (“DOE”): REDACTED (hereinafter referred to as “District’s representative”)
INTRODUCTION AND PROCEDURAL HISTORY
Student is an REDACTED-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute. On July 21, 2023, Parent, through Parent’s representative firm, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA regarding the 2023-2024 extended school year (“SY”) (Ex. P-A). I was appointed on July 24, 2023 to determine the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1), concerning Student’s special education program.
It is asserted in the DPC that the DOE, inter alia: failed to provide adequate special education and related services for Student for the twelve-month 2023-2024 SY; failed to provide Student a Free Appropriate Public Education (“FAPE”) by failing to provide the special education and related service providers to implement the services recommended in Student’s Individualized Education Program (“IEP”) and Individualized Education Services Program (“IESP”), both which were developed on July 19, 2023 (Ex. P-A-1, & P-A-2; P-B; & P-C).
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[2] and its implementing regulations,[3] and the New York State Education Law[4] and its implementing regulations. [5]
LEGAL FRAMEWORK
A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.[6] If a procedural violation is alleged, a hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to student, or (c) caused a deprivation of educational benefits. [7]
The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE [8]. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction". [9]
To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP [10]. Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material". [11]
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. [12]
Students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP from the public school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them.[13]
The IDEA does not confer entitlement to students enrolled in nonpublic schools to all the special education programs or related services such students would receive if they attended public schools.[14] Instead, the IDEA requires school districts to participate in a consultation process for making special education services available to students in nonpublic schools,[15] and to “allocate a proportional share of federal IDEA funds to provide special education and related services to parentally-placed private school children” with disabilities. [16]
These “more limited services provided to parentally-placed children in private schools is commonly known as equitable participation, and is distinct from the FAPE requirement”. [17]
The IESP must be developed in the same manner and with the same contents as an IEP is developed. School districts are required to provide special education services pursuant to the IESP. Such services must be provided on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.
Per a New York State Education Department guidance document 18:
“The term "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. The new State legislation is intended to maintain the level of services provided to NYS nonpublic students with disabilities through IEPs. …
Accordingly, parentally placed nonpublic students must be provided services based on need 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. 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 . . . ”
Where it is determined that IESP services were not appropriately provided on an equitable basis, the New York State Education Law permits a hearing officer to redress the violation under the same broad authority available for violations of the IDEA.[19] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act”[20] and damage awards are not available under the IDEA. [21]
18 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.
The hearing officer “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies”. [22]
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement or direct funding for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement – which is not applicable in this case. [23]
FINDINGS OF FACT AND DECISION
Parent disclosed an IEP and an IESP relevant to the 2023-2024 SY developed pursuant to an IEP and IESP meeting held on July 19, 2023, which were admitted to the record (Ex. P-B; & P-C, respectively). The IEP and IESP were developed for Student with a projected implementation period from 07/19/2023 through to 08/31/2023 (Ex. P-C-23) and 09/07/2023 through to 07/19/2024 (Ex. P-B-1), respectively.
In the IEP the CSE recommended, inter alia, the following Special Education Program and Services for Student (Ex. P-C-23) (hereinafter referred to as “The IEP Services”):
1. Special Education Teacher Support Services (“SETSS”), ELA; Service Delivery Recommendations: Direct Service, Group service, Language of Service: English; Frequency: 3 times per week; Duration: Period; Location: Separate Location, At the provider’s discretion; Projected Beginning ... / Service Date(s):
07/19/2023 – 08/31/2023.
2. SETSS, MATH; Service Delivery Recommendations: Direct Service, Group service, Language of Service:
English; Frequency: 2 times per week; Duration: Period; Location: Separate Location, At the provider’s discretion; Projected Beginning ... / Service Date(s): 07/19/2023 – 08/31/2023.
3. Occupational Therapy (“OT”); Service Delivery Recommendations: Individual service, Language of Service:
English; Frequency: 2 times per week; Duration: 30 minutes; Location: Separate Location, At the provider’s discretion; Projected Beginning ... / Service Date(s): 07/19/2023 – 08/31/2023. 4. Speech-Language Therapy (“SLT”); Service Delivery Recommendations: Individual service, Language of Service: English; Frequency: 2 times per week; Duration: 30 minutes; Location: Separate Location, At the provider’s discretion; Projected Beginning ... / Service Date(s): 07/19/2023 – 08/31/2023.
In the IESP the CSE recommended, inter alia, the following Special Education Program and Services for Student (Ex. P-B-14, & P-B-15) (hereinafter referred to as “The IESP Services”):
1. SETSS; Service Delivery Recommendations: Direct Service, Group service, Language of Service: English; Frequency: 7 times per week; Duration: Period; Location: Separate Location; Projected Beginning ... /
Service Date(s): 09/07/2023.
2. Speech-Language Therapy (“SLT”); Service Delivery Recommendations: Individual service, Language of Service: English; Frequency: 3 times per week; Duration: 30 minutes; Location: Separate Location, At the provider’s discretion; Projected Beginning ... / Service Date: 09/07/2023.
3. Occupational Therapy (“OT”); Service Delivery Recommendations: Individual service, Language of Service:
English; Frequency: 3 times per week; Duration: 30 minutes; Location: Separate Location, At the provider’s discretion; Projected Beginning ... / Service Date: 09/07/2023.
4. Physical Therapy (“PT”); Service Delivery Recommendations: Individual service, Language of Service:
English; Frequency: 2 times per week; Duration: 30 minutes; Location: Separate Location, At the provider’s discretion; Projected Beginning ... / Service Date: 09/07/2023.
5. Counseling Services; Service Delivery Recommendations: Group service, Language of Service: English; Frequency: 1 time(s) per week; Duration: 30 minutes; Location: Separate Location, At the provider’s discretion; Projected Beginning ... / Service Date: 09/07/2023.
6. Counseling Services; Service Delivery Recommendations: Individual service, Language of Service: English; Frequency: 1 time(s) per week; Duration: 30 minutes; Location: Separate Location, At the provider’s discretion; Projected Beginning ... / Service Date: 09/07/2023.
It is asserted in the DPC that Parent was unable to located providers to work with Student at the DOE’s standard rates for the 12-month 2023-2024 SY and that the DOE did not provide any.
It is also asserted that Parent found providers who are willing to provide the Student with all the required services for the relevant extended SY, but at rates higher than the DOE’s standard rates (Ex. P-A-1).
At the IH, Parent’s representative asserted that the relief being sought, namely The IEP Services and the IESP Services to be funded at reasonable market rate for the extended SY, would be an appropriate remedy for DOE’s failure to provide the equivalent of a FAPE, or equitable services, to Student for the claims in the DPC. The DOE neither contested that The IEP Services and The IESP Services requested by Parent were previously recommended by the DOE (Ex. P-B-14, P-B-15; & P-C-23), nor that the DOE did not secure providers for Student.
It was confirmed at the IH that there was no factual dispute and that a final order could be granted, awarding The IEP Services and The IESP Services for the extended 2023-2024 SY, without the need for further hearing (T. P 24).
Given the stance adopted regarding Parent’s assertions and the lack of a dispute in regard thereto, I find that the DOE’s failure to implement the Student’s The IEP Services and The IESP services was tantamount the denial of a FAPE and/or the failure to provide Student with equitable services (which would continue for the remainder of the 2023-2024 SY). Despite these concessions, given that the District bears the onus, the record and the probabilities, even if it were 50-50, supports a finding that the District failed to meet its burden. In essence, Parent was asserting that the DOE failed to implement its own recommendations. There is no evidence on record that the DOE provided Student with the program and related services mandated in Student’s IEP for the summer of the 2023-2023 SY, or mandated on the Student’s IESP for the regular SY, which has commenced.
Parent’s representative had planned to present Parent as a witness, and potentially Affiant, but given the manner in which the case was addressed by the parties, it became unnecessary to do so. Parent disclosed a Contract Agreement entered into with the Program (defined below), in terms of which the Program agreed to provide special education and/or related services to Student, as well as printouts with information of Providers/Teachers’ (defined below) credentials/certificates, demonstrating the appropriateness of their qualifications to provide Student with such services (Ex. P-D, & P-E). Additionally, Parent disclosed a signed affirmation dated September 5, 2023 by Affiant, a bookkeeper at the Program, who affirmed that Student was being serviced up to seven hours of Special Education services (Ex. P-F).
The transcript of the hearing held on September 12, 2023 was not available at the time of writing this FOFD.
Based on the record, I find that Parent is entitled to an award for The IEP Services and The IESP Services requested by Parent. 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 upon the above Findings of Fact, it is hereby:
1. ORDERED that, the DOE shall either reimburse Parent, alternatively fund (subject to #2 of this order), at reasonable market rate, Student’s programs and services as follows:
a. For the summer of the 2023-2024 SY (i.e., July 19, 2023 through August 31, 2023), namely:
i. SETSS, ELA; Service Delivery Recommendations: Direct Service, Group service, Language of Service: English; Frequency: 3 times per week; Duration: Period.
ii. SETSS, MATH; Service Delivery Recommendations: Direct Service, Group service, Language of Service: English; Frequency: 2 times per week; Duration: Period.
iii. OT; Service Delivery Recommendations: Individual service, Language of Service: English; Frequency: 2 times per week; Duration: 30 minutes.
iv. SLT; Service Delivery Recommendations: Individual service, Language of Service: English; Frequency: 2 times per week; Duration: 30 minutes.
b. For the regular 2023-2024 SY (i.e., September 9, 2023 through June, 2023), namely:
i. SETSS; Service Delivery Recommendations: Direct Service, Group service, Language of Service:
English; Frequency: 7 times per week; Duration: Period.
ii. SLT; Service Delivery Recommendations: Individual service, Language of Service: English; Frequency: 3 times per week; Duration: 30 minutes.
iii. OT; Service Delivery Recommendations: Individual service, Language of Service: English; Frequency: 3 times per week; Duration: 30 minutes.
iv. PT; Service Delivery Recommendations: Individual service, Language of Service: English; Frequency: 2 times per week; Duration: 30 minutes.
v. Counseling Services; Service Delivery Recommendations: Group service, Language of Service:
English; Frequency: 1 time(s) per week; Duration: 30 minutes.
vi. Counseling Services; Service Delivery Recommendations: Individual service, Language of Service:
English; Frequency: 1 time(s) per week; Duration: 30 minutes.
2. FURTHER ORDERED that, to the extent that Parent has not paid for the programs and services specified in #1 of this Order, the DOE shall directly fund and pay to the provider/s of Parent’s own choosing, the mandated program and services detailed in #1 of this Order, still at reasonable market rate, upon the submission to the DOE’s Implementation Unit of the signed contract/s in terms of which Parent secured licensed provider/s to provide such programs and services to Student for the 2023-2024 extended SY, together with invoices for such services rendered.
3. FURTHER ORDERED that, to the extent that not all mandated program and services (SETSS (ELA), SETSS (MATH), SETSS, OT, SLT, PT, and/or Counseling Services (Group and Individual) – Ex. P-C-23; Ex. P-B-14, & PB-15) were provided to Student by a provider/s of Parent’s own choosing during the periods specified in #1 of this Order, then the DOE shall fund the remaining balance as compensatory services for Student, to be provided by licensed provider/s of the Parent’s own choosing, at a reasonable market rate, by issuing payment directly to the provider/s within 30 (thirty) days upon the submission of invoices for services rendered.
4. FURTHER ORDERED that, the bank of compensatory SETSS (ELA), SETSS (MATH), SETSS, OT, SLT, PT, and/or Counseling Services (Group and Individual), as the case may be, set out in #3 of this Order shall expire after
18 (eighteen) months from the date of this Order.
5. FURTHER ORDERED that, the DOE’s obligation to reimburse/fund the Student’s mandated program and services pursuant to #1 or #2 of this Order, and/or fund the program and services not yet provided, as compensatory services for Student pursuant to #3 and #4 of this Order, is not cumulative and therefore together is limited to a total number of program and services that were mandated in the Student’s IEP for the summer of the 2023-2024 SY (i.e., July 19, 2023 through August 31, 2023) (Ex. P-C-23), and limited to a total number of program and services that were mandated in the Student’s IESP for the regular 2023-2024 SY (i.e., September 9, 2023 through June, 2023) (Ex. P-B-14, & P-B-15).
SO ORDERED.
DATED: September 12, 2023
__H.A.C._(Signed Electronically)___
Impartial Hearing Officer
Harry A. Christodoulou
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.
APPENDIX A – REDACTION IDENTIFICATION PAGE
REDACTED
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT’S EXHIBITS
A. Impartial Hearing Request 07/21/2023 6 pages
B. IESP 07/19/2023 18 pages
C. IEP 07/19/2023 30 pages
D. Program Contract Agreement 07/19/2023 1 page
E. Teachers’ Certification Undated 4 pages
F. Affirmation of Affiant 09/05/2023 1 page
DOE’S EXHIBITS
- - - -
IHO’S EXHIBITS
- - - -
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] 20 U.S.C. § 1400 et seq.
[3] 34 C.F.R. § 300 et seq.
[4] Educ. Law Art. 89 § 4404 et seq.
[5] 8 NYCRR § Part 200.
[6] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[7] 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[8] 20 U.S.C. § 1415[f][3][E][i].
[9] Rowley, 458 U.S. at 203.
[10] Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]
[11] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007].
[12] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[13] Provisions of section 3602-c; See also 34 CFR 300.130 and 300.145-147.
[14] See 34 C.F.R. § 300.137(a).
[15] See 34 C.F.R. § 300.134.
[16] E.T. and D.T. ex rel. E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at 10 (S.D.N.Y. 2012) (citing J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 665 [S.D.N.Y. 2011] [internal quotation marks omitted]); see also 20 U.S.C. § 1412(a)(10)(A)(i)-(ii); 34 C.F.R. §§ 300.131 – 300.133.
[17] E.T. and D.T. ex rel. E.T., supra., at 11 (internal quotations and citations omitted); c.f. Application of a Student with a Disability, Appeal No. 20-115 (Sept. 3, 2020) at pg. 4 (noting that in a particular case the difference in applying a FAPE standard or an “equitable services standard” is a “distinction without a difference” where N.Y. Educ. Law § 3602-c “has been routinely treated . . . as providing eligible students with an individual right to special education services that must be tailored to the student’s particular needs by the CSE” that are then protected “through the due process hearing system called for by the IDEA” (internal citations omitted)).
[19] 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]).
[20] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[21] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[22] See Doe v. East Lyme, 790 F.3d at 454.
[23] NYS Educ. Law § 4404(1)(c). The parties’ representatives confirmed their understanding of the burden of proof in this case at a prehearing conference held on August 22, 2023 (T. P3-P4).