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FINDINGS OF FACT AND DECISION - AMENDED
Case Number: 253776
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., District # [REDACTED]
Impartial Hearing Officer: Roberta Wolf, Esq.
Date of Filing: September 1, 2023
Hearing Requested by: Parent
Date of Hearing: October 17, 2023
Record Close Date: November 15, 2023
Date of Decision: November 15, 2023 (Amended 11/16/2023)
Time Sensitive: Yes
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 17, 2023
For the Parent and Student:
[REDACTED], Representative
For the Department of Education:
[REDACTED], Representative
BACKGROUND
On September 1, 2023, the Parent, through counsel, filed a Due Process Complaint (DPC). [1] In the DPC, the Parent alleged, among other things, that the Department of Education (DOE) failed to provide Student with special education services on an equitable basis for the 2023-2024 school year by failing to implement the Special Education Teacher Support Services (SETSS), Speech-Language Therapy (SLT), Counseling, and Occupational Therapy (OT) that were mandated under the Student’s most recent Individualized Education Services Program (IESP) dated January 31, 2023. [2] As relief, the Parent requested an order finding that DOE failed to provide Student with special education services on an equitable basis for the 2023-2024 10-month school year and directing the DOE to fund: SETSS, 5 periods per week, group service, in English; SLT, 2 30-minute sessions per week, group service, in English; OT, 2 30-minute sessions per week, individual service, in English; and Counseling, 1 30-minute session per week, group service, in English. The DPC states that the Parent “secured” providers but they would not accept DOE’s standard pay rates, and that the Parent reserved the right to request compensatory services for any unimplemented services. [3]
I was appointed Impartial Hearing Officer (IHO) on September 5, 2023. An omnibus settlement conference[4] with the representatives of the parties was held on October 10, 2023. Per the Student’s case file in the Impartial Hearing System (IHS), DOE did not hold a resolution meeting, but filed a due process response on September 7, 2023, which acknowledged that the January 31, 2023 IESP was the Student’s operative IESP and that SETSS and “Related Services” were the Student’s educational program (the document was otherwise blank). On October 5, 2023, DOE signed a pendency agreement identifying the services in the January 31, 2023 IESP (SETSS, SLT, OT, and Counseling) as the Student’s pendency program.
I adjudicated a due process hearing on October 17, 2023. At the hearing, DOE offered no evidence, waived its opening statement, and did not object to the Parent’s exhibits, which were admitted into the record. DOE did not dispute that: the Student was entitled to special education services; his last IESP was developed on January 31, 2023; and that DOE did not implement the recommendations contained in the IESP.[5] However, DOE challenged the appropriateness of the Parent’s service provider(s) and the reasonableness of the rates charged because the Parent had not identified any providers or provided contracts.
Parent’s counsel argued that there was no dispute that the Student was entitled to services and DOE did not provide them. He reasoned that the Parent would provide contracts to DOE after funding for those services was already in place. Moreover, Parent’s counsel agreed that DOE’s own Implementation Unit (IU) could determine a reasonable market rate for the Parent’s providers so that the Student could receive the services to which he was entitled.
ANALYSIS
The IDEA provides that children with disabilities are entitled to a FAPE,[6] which 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).[7] A school district offers a student a FAPE when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) develops an IEP through the IDEA’s procedures that is reasonably calculated to enable the student to receive educational benefits.[8] 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.” [9]
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.[10] The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools.[11] However, under State law, parents who privately enroll their child with a disability in a nonpublic school may seek educational “services” 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.[12] 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].” [13]
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.”[14] A district cannot be absolved of its statutory obligation to implement mandated services for the student through inactivity.[15] 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.”[16] 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.
Under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.[17] However, under State law, the burden of proof has been placed on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. [18]
In the due process complaint, the Parent sets forth allegations that DOE was obligated but failed to deliver services to the Student for the 2023-2024 school year.[19] The district failed to present evidence to counter such allegations and thus, failed to meet its burden of production and persuasion. On this record, I find that DOE failed to provide Student with special education services on an equitable basis for the 2023-2024 10-month school year.
The remedy for DOE’s failure to provide appropriate equitable services required under Education Law § 3602-c is similar to the remedy for the district’s failure to provide appropriate services under the IDEA.[20] “In any action brought under the IDEA, the court ‘shall grant such relief as the court determines is appropriate.’ The only restriction is that ‘the relief is to be appropriate in light of the purpose of the Act.’ [E]quitable considerations are relevant in fashioning relief and the court enjoys broad discretion in so doing.”[21] Compensatory education and services are equitable remedies tailored to meet the unique circumstances of each case.[22] An award must be designed to “make up” for past denials of FAPE and place the student in the position they would have had if the district complied with its obligations under the IDEA.[23] “[T]he inquiry must be fact-specific, and [in order] to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.”[24] The compensation may take the form of supplemental special education or in related services, with the goal of fashioning appropriate relief for a denial of a FAPE. [25]
As a preliminary matter, this case does not involve a Burlington/Carter analysis[26] because it does not involve the Parent’s rejection of DOE’s offer of services contained in an IEP in favor of a unilateral placement in another school (and in favor of the alternative program provided at that private school). Additionally, Burlington/Carter cases involve the parents’ request for tuition reimbursement whereas section 3602(c) cases pertain to individual sessions for related services that are privately administered only until DOE itself implements the IESP. Nor does Burlington/Carter address circumstances that commonly occur in section 3602(c) cases, such as where the parent has yet to find a provider (or has located a provider but not signed a contract due to financial constraints or for some other reason, or wishes to change providers) and files a DPC to first obtain an order authorizing the private administration of unimplemented services and that obligates DOE to pay for those services. Furthermore, when the same services recommended in an IESP are those implemented by the parent’s private service provider (e.g., SETSS, OT), the appropriateness of the services themselves is not in dispute. [27]
Here, the Parent agrees with the appropriateness of the services mandated by the Student’s IESP and wants them implemented. The DPC challenges DOE’s ability to provide the services that DOE itself determined were appropriate and that DOE agreed to provide when it created the IESP. Although DOE challenges the appropriateness of the Parent’s service providers, DOE cites to no legal authority that a properly certified teacher or therapist administering the services mandated in an IESP is nevertheless an inappropriate provider. Moreover, DOE challenged the appropriateness of the rates charged by the Parent’s provider(s), but provided no evidence to establish the appropriateness of any rates in the first instance, nor did it contest Parent’s counsel’s offer that DOE’s own IU could determine a reasonable market rate.
Similarly, DOE did not provide any evidence or argument in support of an alternative form of relief, nor did DOE contend that the Parent behaved unreasonably or that equitable considerations otherwise disfavor the Parent. I find that the Student is entitled to receive the services mandated by the January 31, 2023 IESP and that DOE must either reimburse the Parent or fund the properly licensed provider(s) of their choosing at a reasonable market rate. I note that the DPC is unclear as to whether the Parent, in “securing” providers has already contracted with those providers or, has merely located available providers and awaits an order to secure funding before signing a contract. DOE did not challenge the sufficiency of the DPC; however, the Student is entitled to the services in the operative IESP in any event.
I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and any of the Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDER
Based upon the above Findings of Fact, IT IS HEREBY:
1. ORDERED that DOE shall directly fund and/or reimburse the Parent at a reasonable market rate with properly licensed provider(s) of Parent’s choosing, within 14 days of the presentation of a valid contract between Parent and the chosen provider(s), and an affidavit indicating the date(s) of the service and the provider’s name, license and/or certification, if applicable, for the following services:
a. SETSS, 5 periods per week, group service, in English;
b. SLT, 2 30-minute weekly sessions, group service, in English.
c. OT, 2 30-minute weekly sessions, individual service, in English; and
d. Counseling, 1 30-minute weekly session, group service, in English.
DOE shall fund or reimburse these services for the 10-month, 2023-2024 school year or until DOE itself provides the services, whichever is sooner.
SO ORDERED.
Dated: November 15, 2023 /s/ Roberta Wolf
Roberta Wolf
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of the 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.
EVIDENCE
Parent
Exhibit Date Document Pages A 09/01/2023 Due Process Complaint 6 B 01/31/2023 Individualized Education Services Program (IESP) 13
DOE
None.
Footnotes
[1] Ex. A.
[2] Ex. B.
[3] Ex. A.
[4] Settlement conferences are conducted by an OATH IHO not assigned to the case whose purpose is to aid the parties in exploring and facilitating a resolution to the DPC. The content of the conferences is confidential, and the parties are directed to attend with knowledge of the dispute and settlement authority should there be an interest in resolution. Settlement Conferences are not recorded and are not part of the record.
[5] Tr. p. 4 lines 15-17.
[6] 20 U.S.C. § 1400 (d)(1)(A).
[7] 20 U.S.C. § 1401(9).
[8] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[9] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[10] 20 U.S.C. § 1412(a)(l)(A); Educ. Law § 4402(2)(a), (b)(2).
[11] See 34 CFR 300.137(a).
[12] Educ. Law § 3602-c(2).
[13] Educ. Law § 3602-c(2)(b)(l).
[14] Educ. Law § 3602-c(2)(a).
[15] Educ. Law § 3602-c(2)(a), (b)(l).
[16] Educ. Law § 3602-c(2)(b)(1).
[17] Schaffer v. Weast, 546 U.S. 49, 59-62 (2005) (finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not).
[18] Educ. Law § 4404[1][c]; see Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F. v. New York City Dep't of Educ., 746 F.3d 68, 76 [2d Cir. 2014]; R.E., 694 F.3d at 184-85.
[19] Ex. A.
[20] 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).
[21] Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citations omitted).
[22] See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
[23] P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008).
[24] Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that compensatory awards should place children in the position they would have been in but for the violation of the Act).
[25] See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 (2d Cir. 2014); see also Newington, 546 F.3d at 123.
[26] Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 369, (1985).
[27] Application of a Child with a Disability, Appeal No. 21-138.