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CASE NUMBER: 606156 – NYC: 253405
FINDINGS OF FACT AND DECISION
Case Number: 253405
Student’s Name: REDACTED
District of Private School Location: NYC Dept. of Ed., District # [Redacted]
Impartial Hearing Officer: Keegan K. Staker, Esq.
Date of Filing: August 31, 2023
Hearing Requested by: Parent
Date of Hearing: November 6, 2023
Record Close Date: December 13, 2023
Date of Decision: December 13, 2023
I. JURISDICTION
This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.
The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.
II. BACKGROUND AND DUE PROCESS COMPLAINT
The Parent, through counsel, filed a Due Process Complaint(“DPC”) on or about August 31, 2023. Parent alleges that the Department of Education (“DOE”) failed to implement an individualized education service plan (“IESP”) for the ten month 2023-2024 school year.[1] Parent seeks funding for five hours of Special Education Teacher Support Services (“SETSS”) currently being provided by Agency, as well as funding for related services also being provided by agency consisting of:
a. Occupational Therapy ("OT"), 3 times per week, 30-minute session
b. Speech and Language Therapy ("SLT"), 3 times per week, 30-minute session.
Parent also seeks an award of a bank compensatory education for non-implemented services consisting of:
a. Physical Therapy ("PT"), 2 times per week, 30-minute session.
III. PROCEDURAL HISTORY AND HEARING
I was appointed on August 31, 2023. On November 6, 2023, both parties appeared virtually for a hearing. DOE did not seek to introduce any exhibits. Parent provided six exhibits prior to the hearing, and they were admitted into evidence without objection. The DOE did not seek to introduce witness testimony and rested. Parent introduced one affidavit[2] in lieu of direct testimony, and the witness were made available for cross-examination, or the parties stipulated to the facts that would have been elicited on cross-examination.[3]
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 access to equitable services for the 2023-2024 school year. I find that parent’s unilateral placement for the provision of services for SETSS was appropriate, however I find that the rate requested for SETSS is excessive as a matter of law and must be reduced as set forth below, however I find that DOE shall fund the related services provided by Agency at the contracted rates. Finally, I find that Student is entitled to a bank of compensatory education for any services for which Parent has not yet found a provider, by a qualified provider of Parent’s choosing unless and until DOE implements those services.
IV. 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 2023-2024 school year. Furthermore, it is uncontested that the Private School is located within the geographic boundaries of the DOE. The Parent did not challenge the content of the IESP, merely the delivery of the recommended services. Further, it is uncontested that certain services were recommended for the student in their IESP, and the district did not implement or provide those services.
Pendency
The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation, or placement of the student.[4] Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships.[5] Pendency is appropriate in 3602-c cases.[6] Here, parent seeks a pendency order based on the last agreed upon IESP dated March 21, 2023.[7] The district offered no objection to Parent’s request for a pendency Order and thus it is granted.
June 1st Notice
Under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational “services” for their child by filing a request for such services in the district of location 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.[8] This notice is required for each year that services are requested, not simply the year of the initial request.[9] The hearing record must contain evidence of compliance with this requirement for the Student to be entitled to services,[10] unless it is clear and unmistakable that the DOE waived the June 1 deadline.[11] In this case, Student’s IESP, on its face, states that the date for implementation of the plan is the beginning of the 2023-2024 school year.[12] As such, the DOE was on notice of Parent’s request for services, and DOE has offered no objection on this point.
Applicable Standards
A. 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”).[13]. 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.[14] 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.”[15] As outlined below, FAPE is not implicated in dual enrollment cases such as this one where state law alone is at issue. However, equitable services under Educ. Law §3602-c follow the same due process requirements as IDEA FAPE cases.
B. 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.[16] The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools.[17] 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.[18] 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].”[19]
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.”[20] 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.”[21] 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. In failing to do so, the DOE fails 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.
C. Unilaterally-Obtained Services
While districts cannot deliver special education services called for by their educational programming in an unauthorized manner, due at least in part to the requirements that school officials and employees remain accountable under the statutory and regulatory mechanisms put in place by state and federal authorities, districts can be made to pay for a privately obtained parental placement, a process that is essentially the same as the federal process under IDEA. “Parents who are dissatisfied with their child's education can unilaterally change their child's placement during the pendency of review proceedings and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test.”[22] As of late, the SRO’s have routinely used this test in SETSS cases.[23]
Reimbursement for Unilateral Placement under Burlington/Carter
A. Prong I – FAPE and the DOE’s Failure to Implement
Here, there is no dispute that the Student is entitled to services pursuant to the IESP. Parent alleges and credibly testified that the DOE failed to implement these services and the DOE, which bears the burden of proof, has failed to introduce any evidence or argument to the contrary.[24] As such, it is undisputed that the district failed to provide Student with a FAPE, insofar as it has utterly failed to implement its own designed program.
B. Prong II – Appropriateness of Placement
I find that Parent has met their burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard. The affidavit and testimony of Agency Case Manager[25] makes clear that Student’s individual special education needs were addressed by the program and that the instruction offered was “reasonably calculated to enable the child to receive educational benefits.”[26] Finally, it should be noted that DOE did not offer any specific arguments with respect to the suitability of the program.
C. Prong III – Equities and Rate
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA.[27] “Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable.”[28]
I note that, per Agency Case Manager, that the rate charged by Agency for SETSS is $225 per hour.[29] With respect to the rate paid to the actual teacher, no specific information is provided. Instead, the Agency Case Manager could only provide the rate range paid to all of their providers for all services the agency offers, whether they are SETSS or specialized related services providers.[30] This range, for all providers employed by the agency, ranges from $80-$160 per hour, with the remainder of the rate charged going to overhead expenses.[31] It is undisputed that the witness could not provide any further information with regard to the specific rate paid to the teacher, and no other evidence was offered that could shed further light.[32]
It is unclear to this IHO why the Agency would provide any information with regard to the alleged pay of these providers at all if the best it can provide is such a wide, and frankly useless, range of pay. By obfuscating the actual rate paid to the SETSS teacher, any attempt to meaningfully assess the appropriate rate for the Agency is frustrated. Given this lack of information, I will assume for the purposes of this matter, that the SETSS teacher is paid $100 per hour.[33] Assuming this rate for direct labor costs, then overhead appears to exceed the cost of the direct labor rate.
While not binding, I would note that the 2023-24 reimbursement rates by the New York State Education Department for reimbursement for providers for students with disabilities limits overhead expense reimbursement to 35% of the total reimbursed amount, which is calculated by multiplying direct labor costs by 0.5385.[34] This provides a guidepost to assess the reasonableness of rates in the absence of evidence from either party on this point. Applying this principal to the assumed labor costs here, appropriate reimbursement would be $153.85 per hour.
Here, it would appear that overhead expenses equal or exceed direct labor costs for the SETSS services. Without significant justification for such rates, which was not provided here, I find them to be unreasonable as a matter of law. In this case, considering the evidence presented, the record before me, I find that $160 per hour is a reasonable and appropriate hourly rate for the services provided. As such, I order the district to pay for SETSS services at a rate of $160 per hour.
With respect to the related services, I find that the DOE did not object to the rate requested, and I find that the rates requested and contracted are reasonable. As such, I direct the DOE to fund the related services provided by Agency at the contracted rate.[35]
Compensatory Relief for Related Services
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.[36] 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”[37] Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so.[38] Although an award of damages is not available under the IDEA, “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[39]
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.[40] 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.[41] 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[.]”[42]
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.
While it may very well be permissible for a district to include the parent in the identification of a particular provider, especially if the parent is willing and able to do so, it does not follow that the responsibility to redress a parents' inability to locate a provider is shifted to the parent. The DOE does not explain why it did not simply schedule the special education services as mandated by the IESP and, in essence, inform the Parent where and when the services would be available, and at which time the Parent would have the responsibility to produce the student in order to receive the services.
I have considered both parties’ positions and find that Student should have received instruction under the IESP in effect during the 2023-2024 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. As such, parent’s request for compensatory education for the services for which they have not yet located a provider is appropriate to compensate for the missed services to date, and on a continuing basis until the DOE begins implementation of these services. Thus, to the extent that DOE begins implementation of the related services, the need for continuing compensatory education will terminate.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) Student is entitled to services during the pendency of this proceeding as provided for the in the IESP dated 3/21/2023.
(2) The DOE shall fund, at a rate of $160.00 per hour for the entirety of the ten month 2023-2024 school year, up to five periods of SETSS per week within 45 days of submission of an affidavit from Agency stating the dates of services and total hours provided.
(3) The DOE shall fund, at the rate contracted rate with Agency ($300), the related services provided by Agency, as described in paragraph II, supra. Invoices shall be paid within 45 days of submission, along with an affidavit from Agency stating the dates of services and total hours provided for each service.
(4) The DOE shall fund, as compensatory education, one hour of Physical Therapy per week at a reasonable market rate for each week that the DOE failed to provide this service. The bank of hours shall expire two years from the date of this order and shall not exceed 40 hours for the 2023-2024 school year. Should DOE begin implementation of this service, this bank of hours shall be capped at the number of weeks that DOE failed to provide this service.
Dated: December 13, 2023
_____________________
Keegan K. Staker, 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 | 8/26/2023 | 6 |
B | Individualized Education Services Program | 3/21/2023 | 13 |
C | Prior Written Notice | 6/1/2023 | 6 |
D | Affidavit of [Redacted] | 10/26/2023 | 1 |
E | Providers’ Certification | Various | 4 |
F | Parent’s Contract | 9/1/2023 | 1 |
G | |||
H | |||
I | |||
J | |||
K | |||
L | |||
M |
IHO EXHIBITS
Exhibit | Title | Date | Pages |
none |
APPENDIX
Redacted Information | Term Used In FOFD |
REDACTED | Student |
REDACTED | Parent Attorney/Representative |
REDACTED | DOE Attorney/Representative |
REDACTED | Agency |
REDACTED | Agency Case Manager |
Footnotes
[1] Exhibit A.
[2] Affidavits may refer to unsworn or unnotarized statements that were then sworn or affirmed to on the record.
[3] See transcript.
[4] 20 U.S.C. § 14159(j); Educ. Law §§ 4404(4), 4410(7)(c); 34 CFR 300.518(a); 8 NYCRR 200.5(m); see, Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 (E.D.N.Y. Oct. 30, 2008); Bd. of Educ. v. O'Shea, 353 F. Supp. 2d 449, 455-56 (S.D.N.Y. Jan. 18, 2005); Application of a Student with a Disability, Appeal No. 14-024; Application of the Dep't of Educ., Appeal No. 08-061.
[5] Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982); see Wagner v. Bd. of Educ., 335 F.3d 297, 301 (4th Cir. 2003); Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3d Cir. 1996).
[6] See SRO 23-065.
[7] Exhibit A; see IESP, Exhibit B.
[8] Educ. Law § 3602-c[2].
[9] SRO 23-162.
[10] Id.
[11] See SRO 18-088.
[12] See Exhibit B.
[13] 20 U.S.C. § 1401(9)
[14] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[15] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017)
[16] 20 U.S.C. § 1412(a)(l)(A); Educ. Law§ 4402(2)(a), (b)(2)
[17] see 34 CFR 300.137(a)
[18] Educ. Law § 3602-c(2)
[19] Educ. Law§ 3602-c(2)(b)(l)
[20] Educ. Law § 3602-c(2)(a)
[21] Educ. Law § 3602-c(2)(b)(1)
[22] Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 (2d Cir. 2020) (internal quotations and citations omitted); see Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 14 (1993) (“Parents’ failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement”.
[23] See SRO 23-162.
[24] See Transcript.
[25] See Exhibit D.
[26] Frank G., 459 F.3d at 364
[27] Burlington, 471 U.S. at 374.
[28] Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. at 16.
[29] See Exhibit D and Transcript.
[30] Id.
[31] Id.
[32] Id.
[33] My basis for doing so is as follows. I credit the Agency’s claim that all of their providers are paid an amount in the given range, regardless of whether they are provided SETSS, OT, PT, SLT, Counselling or other services, however it is commonly known that SETSS providers are paid on the lower end of that scale, while related service providers are generally paid on the higher end of that scale. This assumption is proven by the rates actually charged by this Agency in this case. Agency charges $225 per hour for SETSS, however it charges $300 per hour for all related services. By assuming a rate paid to the SETSS teacher of $100 per hour, I believe I am, in fact, overestimating the amount paid to the SETSS teacher. Should this decision be appealed, I would invite additional evidence to substantiate that assumption.
[34] See Tuition Rate Setting Methodology for 2023-24 Rates for School-Age Providers Serving Students with Disabilities, https://www.oms.nysed.gov/rsu/Rates_Methodology/MethodLetters/documents/2023-24%20School-Age%20Methodology%20MemoFINAL.pdf, last visited 11/13/23.
[35] See Exhibit F.
[36] 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).
[37] Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[38] Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993).
[39] Doe v. East Lyme, 790 F.3d at 454.
[40] See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
[41] Id.
[42] 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").