NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 252304
Student’s Name: STUDENT
District: REDACTED
Impartial Hearing Officer: Eryn DeFontes, Esq.
Date of Filing: August 2, 2023
Hearing Requested by: Parent
Date of Hearing: September 28, October 12, October 17, 2023 Record Close Date: November 13, 2023
Date of Decision: November 13, 2023
Time Sensitive: YES
NAMES AND TITLES OF PERSONS WHO APPEARED
For the Student:
Parent’s Attorney
Parent’s Attorney II
Financial Officer
For the Department of Education:
District Representative
BACKGROUND AND POSITIONS OF THE PARTIES
Parent, through counsel, filed a Due Process Complaint (“DPC”) on or about August 2, 2023. Parent alleges that the DOE failed to provide Student a free appropriate public education (“FAPE”) on an equitable basis for the 2022-2023 school year. in that the DOE failed to implement the services set forth in an Individualized Education Services Program (“IESP”) dated June 4, 2021 IESP (“2021 IESP”).[1] Regarding relief, Parent seeks a compensatory education award consisting of funding of Special Education Teacher Support Services (“SETSS”) which was administered by a provider of the Parent’s choosing at an “enhanced rate”.[2] On August 3, 2023, the undersigned was appointed as Impartial Hearing Officer (“IHO”) to preside over this matter. A Pre-Hearing Conference (“PHC”) was held on August 31, 2023. On September 28, October 12 and October 17, 2023, Parent’s Attorney and the DOE Representative appeared virtually for the DPH.[3] District Representative proffered no evidence or witnesses.[4] Parent’s Attorney submitted Exhibits A through H. The DOE did not dispute the abovementioned allegations yet maintained “parent needs to demonstrate if they're requesting funding that these services that were provided by [provider] were actually provided.[5] The Parties were directed to submit written closing statements but failed to do so. [6]
Considering the foregoing and as more fully discussed below, the undersigned finds that the DOE failed to provide Student a FAPE on an equitable basis for the 2022-2023 school year, and the relief Parent seeks is appropriate.
LEGAL STANDARDS AND FRAMEWORK
The IDEA provides that children with disabilities are entitled to a FAPE. See 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”). See 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. See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
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). 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. See 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 C.F.R. § 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. See 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). 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).
Lastly, under the IDEA and the NY State Education Law, school districts have the burden of proof that a FAPE has been provided to the student, except that where tuition reimbursement is sought, the parent has the burden of proof with respect to the appropriateness of the parent’s chosen educational placement. See Education Law § 4404(1)(c); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012).
FINDINGS OF FACT
After a full review of the record generated at the hearing, the undersigned makes the following findings of fact and determinations.
Student has been identified as a Student with a Learning Disability.[7] Student is making progress with SETSS and requires those supports to continue making improvements.[8] On June 4, 2021, the Committee on Special Education (“CSE”) convened to consider Student’s eligibility for special education and related services. The CSE developed an IESP recommending SETSS to be provided four (4) times per week. Student and Parent reside in New York City and Student attended a Private School for the 2022-2023 school year. Private School is located within the geographic boundaries of the DOE. The District has failed to provide or to fund SETSS services to Student for the 2022-2023 school year. As the District had not implemented any services for Student, Parent secured a private provider. [9]
On August 29, 2022, Parent, through Parent’s Attorney, sent the District a Ten-Day Notice (“TDN”).[10] Pursuant to the TDN, the DOE “failed to assign a provider for the services mandated” in Student’s IESP and therefore, Parent would implement the IESP on their own and seek reimbursement or direct payment from the District. The District failed to respond. [11] Provider Agency has been providing the recommended SETSS services to Student for the 2022-2023 school year.[12] Student’s SETSS services are provided by a certified Provider via the Provider agency and their progress is documented.[13] SETSS support is “essential” for Student’s continued progress.[14] Provider agency charges $195 per hour for SETSS.[15] Of the $195, a portion of the rate funds the provider’s base rate, taxes, supervisory support and other administrative costs. [16]
On July 1, 2022, Parent signed an agreement with the Provider agency which states in relevant part:
[Provider agency] provides SEIT/SETSS services at enhanced market rates. Pursuant to this Parent Agreement, the Parent agrees that the hours and rates for such services are reflected in the invoices being processed. The invoices stem from and are in accordance with this Parent Agreement the Parent acknowledges and agrees that the Parent is contracting for these services with [Provider agency]. [17]
As such, responsibility ultimately rests with the Parent for payment of the difference between [Provider agency] Pendency Rate and the DOE rate if [Provider agency] does not receive full payment from the DOE for these services. All invoices must be paid in full ninety (90) days after receipt. [18]
Contrary to the DOE representative’s claim to the contrary, the agreement, coupled with the financial officer’s testimony establish that the Parent contracted for the SETSS services requested and bore the ultimate responsibility for the payment of such services.[19] 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. See 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. Furthermore, it has been held that the Department may not effectively compel a parent to resort to self-help in obtaining a SETSS provider. See e.g., Application of a Student with a Disability, Appeal No. 21-101. Such a “de facto delegation from the district to the parent of the obligation to find a SETSS provider . . . at an acceptable rate is manifestly unreasonable” id., and a violation of State law.
REMEDIES
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).
In the absence of any evidence to the contrary, the undersigned finds that the District shall fund the requested SETSS services at a rate not to exceed $195 per hour, pursuant to the credible evidence proffered by the Parent. [20]
Attorney’s Fees
Parent included a notice of claim for attorneys’ fees in the DPC.[21] 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.[22] Therefore, the undersigned IHO would be exceeding the permissible scope of authority by determining that Parent is the prevailing party entitled to costs. To the extent that Parent seeks reimbursement and/or payment of attorneys’ fees and costs from this IHO, their request is denied.
CONCLUSION
The District failed to provide Student a FAPE on an equitable basis for the 2022-2023 school year. The Parent’s requested relief in the form, frequency and rate requested is deemed reasonable.
Accordingly, any relief not specifically discussed in this decision is denied, and all of Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDER
IT IS HEREBY ORDERED that within 15 days of receipt of invoices for services rendered, the DOE shall fund SETSS services as set forth in the June 2021 IESP, as administered by a licensed provider of Parent’s choosing via the Provider agency chosen by the Parent, at a rate not exceed $195 per hour; and it is further
ORDERED that to the extent not provided via a related services agreement (“RSA”), the DOE shall provide and fund the remaining related services as set forth in Student’s June 2021 IESP. [23]
SO ORDERED
Dated: November 13, 2023 ErynDeFontes
Eryn DeFontes, 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.
APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Impartial Hearing Request 08/02/2023 8 pages
B. CSE IESP 06/04/2021 12 pages
C. TDN 08/29/2022 1 page
D. Parent Agreement 07/01/2022 3 pages
E. Progress Report 05/17/2023 4 pages
F. Financial Affidavit 09/20/2023 2 pages
G. Supervisor Affidavit H Invoices 10/2022-06/2023 15 09/19/2023 3 pages
DOE EXHIBITS
None
IHO EXHIBITS
i. email regarding pendency
ii. email regarding failure to submit closing statements
Footnotes
[1] P-B.
[2] Tr. 25:7-11; 26:1-4. Parent withdrew claim for an extended school year (ESY). The enhanced rate in this matter was determined to be $195 per hour/session. P-F-2¶9; P-H.
[3] Parent’s attorney’s I and II appeared on each respective date.
[4] Tr. 28.
[5] Tr. 28:13-17; 33:7-13.
[6] Tr. 29-30; IHO ii. Parties did not pursue the pendency claim set forth in the DPC. IHO i.
[7] P-B-1. Student’s classification is not in dispute.
[8] P-E.
[9] P-A; P-C; P-D; P-F; P-H.
[10] P-C.
[11] Id.; P-A-1.
[12] P-H.
[13] Tr. 113:3-8; P-E; P-F-2; P-G.
[14] P-G-2
[15] P-H; P-F2¶¶9, 10.
[16] P-F-2¶9; Tr. 108-110.
[17] P-D-1, 2¶VI.
[18] Id.
[19] Tr. 32:6-13; P-D; P-F. See also, Appeal No. 21-068.
[20] Tr. 107, 108:1-11.
[21] P-A-4¶6.
[22] See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006).
[23] P-B-9.