Impartial Hearing Decision

CASE NUMBER: NYC: 253769

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

Date of Birth: REDACTED

School District: NYC Department of Education, Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: 09/01/2023

Date(s) of Hearing: 11/13/2023

Actual Record Closed Date: 11/22/2023

Date of Decision: 11/24/2023

Date of Distribution (if Different than Decision Date): 11/27/2023

Hearing Officer: Edward Perkins, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 11/13/2023

For the Student:

REDACTED, Representative

REDACTED, Parent Student

REDACTED, Speech & Language Therapy Provider

For the Department of Education:

REDACTED, Esq., Attorney

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”). The Parents filed this case on September 01, 2023. In the Due Process Complaint (“DPC”), the Parents allege that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) for the 2022-2023 school year. Ex. A.

By way of relief, Parents seek an order awarding funding for 2 individual 30-minute sessions per week of Speech & Language Therapy services (“SLT”), to be provided by a qualified provider of Parent’s choosing, with payment made at a market rate of $300/hour. Tr. at 28-29, Tr. at 41.^[1] I find that (a) the DOE failed to meet its burden that it offered Student a FAPE for the school years in question, and (b) Parent’s requested relief is appropriate.

PROCEDURAL HISTORY

On September 5, 2023, I was appointed as IHO in this matter. On October 16, 2023, the parties appeared for a Pre-Hearing Conference. On November 2, 2023, the parties appeared for a scheduled status conference. On November 13, 2023, the parties appeared for a due process hearing on the merits. The DOE did not seek to enter any exhibits into evidence at the hearing. Tr. at 24. Parent entered eight exhibits into evidence. Tr. at 25. Following the conclusion of the hearing, the DOE submitted a written closing brief, and parent declined the opportunity to submit a closing brief. Tr. at 57.

FINDINGS OF FACT

I hereby make the following findings of fact and determinations.

Student is a REDACTED old child with a DOE disability classification. Ex. D-3. The DOE created an Individualized Education Program (“IEP”) for Student for the 2022-2023 school year. Ex. D. The IEP mandated SLT services two times per week in a group of two, for thirty minutes. Ex. D-10. The DOE failed to deliver Student’s mandated SLT services. Ex. A, Ex. E-1. As a result, Parent independently located an appropriate service providers for the 2022-2023 school year. Ex. E, Ex. F, Ex. H.

CONCLUSIONS OF LAW AND ANALYSIS

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except in circumstances not present here. (NYS Educ. Law § 4404(1)(c)). The school district has the burden of proof on the issue of compensatory education. See M.M. v. New York City Dept. of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. 2017); Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (DC Ct. of App. 2005); Application of Student with a Disability, Appeal No. 21-169.

The DOE presented no evidence at the hearing. The Parent is, therefore, entitled to a presumption that the asserted credible facts underlying her claims, and which are not otherwise contradicted in the record, are true. See generally, Thomson v. Wooster, 114 U.S. 104, 111 (1885) (explaining in default, matters alleged with sufficient certainty taken as true); Cotton v. Slone, 4 F.3d 176, 181 (2d Cir 1993) (stating factual allegations taken as true in light of default judgment and absence of findings concerning liability); Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990) (stating consequence of default judgment is factual allegations, except those relating to damages, are taken as true).

Provision of 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 IEP. 34 C.F.R. § 300.13. 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. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must prove that it offered the student in question 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).

As to a provision of FAPE, the DOE failed to meet its burden at hearing. Specifically, the DOE conceded on the record that Student was a child with a disability, conceded that Student was entitled to the requested SLT services, and conceded that the DOE failed to provide Student with a FAPE for the 2022-2023 school year. Tr. at 24-25. Therefore, I find that the DOE failed to provide Student a FAPE for the 2022-2023 school year.

Relief

Under the provisions of section 3602-c of the New York Education Law, 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 even as they receive general education from the nonpublic school. See Educ. Law § 3602-c(2)(a); see also 34 CFR 300.130 and 300.145-147). 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. See Educ. Law § 3602-c(2)(b)(1). Such services must be provided on an equitable basis compared with other students with disabilities attending public or nonpublic schools located within the school district. Id.

Per guidance from the New York State Education Department:

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. 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 Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. When a school district denies a child a FAPE, the courts have “broad discretion” to fashion an appropriate remedy.” Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015), citing Carter, 510 U.S. at 15-16. In actions brought under the IDEA alleging a denial of FAPE, “the court shall 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 454 (2d Cir. 2015). ^[2]

Where the DOE fails to meet its burden of proving it provided a FAPE, as is the case here, it is “nevertheless incumbent on the district to develop the hearing record to establish the appropriate amount of relief needed to remediate the district's failure.” Application of the New York City Department of Education, Appeal No. 14-014 (SRO NY 2014). Further, it is not persuasive for the district to simply fault the parent’s request for relief without also explaining its own view of what type of relief would be appropriate to remediate the district's failure to provide the student with a FAPE. Id.

As the DOE has failed to present any evidence or testimony, I find that the DOE has failed to establish the appropriate amount of relief to remediate its failure to provide Student with a FAPE for the school years in question. Tr. at 24-29.

In contrast, Parent met her obligation to offer evidence in the record of a specific remedy for the denial of FAPE from the school years in question. I find that the relief requested by the Parent is appropriate to remedy Student’s documented academic and social/emotional deficits, and the requested relief is reasonably calculated to provide Student with the skills that she would likely have accrued but for the DOE’s failure to provide a FAPE. Notably, Parent is requesting relief which mirrors the mandates of Student’s most recent IEP. Ex. D-10. Further, the DOE concedes that Student is entitled to the requested services. Tr. at 25.

Therefore, I find no issue with the reasonableness of the requested relief. Further, there is no evidence in the record which suggests that some other form of relief would better redress the harm caused by the DOE’s failure to provide Student with a FAPE.

With respect to the rate, the DOE did raise an objection with the appropriateness of the requested rate. Tr. at 25. The service provider testified that the requested rate is within the reasonable market rate, as her rate of $300/hour is the same as the rate charged by other similarly-qualified bilingual EnglishYiddish SLT providers in her community. Tr. at 49. Further, the DOE is currently funding this rate for other children she provides SLT services to. Tr. at 48. Therefore, I find that the requested rate is within the reasonable market rate and is thus reasonable. ^[3]

Even if a parent establishes a right to relief under the IDEA, “courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether there was any fraud or collusion in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014). Here, the DOE failed to raise any equitable issues which would be a barrier to the requested relief. Thus, equitable considerations support the requested relief.

For the reasons above, I find that the record supports Parent’s requested relief.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY

ORDERED THAT:

(1) The New York City Department of Education is ordered to fund two thirty-minute periods per week of bilingual English-Yiddish Speech Language Therapy Services (“SLT”), to be provided in a group of two, by a qualified provider of Parent’s choosing, for the duration of the 2022-2023 school year.

(2) The DOE’s Implementation Unit is directed to pay the Parent’s private providers for the above services at a reasonable market rate not to exceed $300/hour. Providers shall be paid directly within thirty (30) days of the DOE’s receipt of the providers’ invoices for such services.

SO ORDERED.

DATED: 11/24/2023

//s// Edward Perkins

Edward Perkins, 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 A – REDACTION IDENTIFICATION PAGE

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

PARENT DISCLOSURE

Number of Pages Exhibit Date Name of Document

A 8/31/2023 Due Process Complaint 2

B 6/1/2023 Impartial Hearing Confidentiality Release Form 1

C 6/30/23 Notice of Appearance 1

D 3/14/2022 IEP 13

E 11/2/2022 Affidavit from Parent 2

F 11/10/2023 Affidavit from Speech Provider 2

G 7/11/2016 License 1

H 9/9/2022 Parent Service Contract 1

Footnotes

[1] The November 13, 2023 hearing transcript is cited to using the following format: ‘Tr. at xx’ (with ‘xx’ representing the page number).

[2] I have elected to address the requested relief using my broad discretion to award equitable relief, as opposed to the Burlington/Carter “three prongs” analysis. Under the Burlington/Carter test, a district must pay for the cost of a student’s requested relief if the three prongs are met: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition. See Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 (1993). While the Burlington/Carter test is sometimes applied in cases where tuition is not sought (for example by substituting ‘private placement’ for ‘requested relief’), I believe that test was designed for application in cases considering an award of tuition. However, if the Burlington/Carter test were to be applied to the facts of this case, Parent would still prevail, as the three prongs favor her: DOE has failed to prove that it provided FAPE (prong 1), Parent has demonstrated the appropriateness of the requested relief (prong 2), and there are no equitable considerations which were raised that could be a barrier to the requested relief (prong 3).

[3] While I find that the requested rate is within the reasonable market rate for bilingual Yiddish-English SLT services, I decline to make any findings regarding the qualifications of a specific provider, and order relief by any qualified provider of Parent’s choosing. While the DOE raised objections with the contract Parent entered into with the speech provider, I find that any potential issues with the contract are beyond the scope of the relief awarded.