FINDINGS OF FACT AND DECISION - 254514

CASE NUMBER: - NYC: 254514

FINDINGS OF FACT AND DECISION

Case Number:254514

Student’s Name¹:[REDACTED] (hereinafter “Student”)

Date of Birth:[REDACTED]

School District:[REDACTED] (hereinafter “The District”)

Hearing Requested by:Parent

Request Date/Date Complaint Filed:09/05/2023

Date(s) of Hearing:01/08/2023

Actual Record Closed Date:01/09/2024

Date of Decision:01/09/2024

Time Sensitive:No

Hearing Officer:Lauren M. Fazzino, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 8, 2024

For the Student:

[REDACTED] (hereinafter “Parent’s Representative”)

For the Department of Education:

[REDACTED] (“DOE’s Representative”)

INTRODUCTION

On September 5, 2023, Parent filed a Due Process Complaint (DPC), pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(f), and New York State Education Law § 4404(1) and § 3602-c(2)(b)(1), alleging that the Department of Education (DOE) failed to implement an individualized education plan (IEP) for the 2023-2024 school year for Student. P-A. Parent seeks an order directing the DOE to implement Student’s most recent IEP using providers obtained by Parent at an enhanced rate.

On January 8, 2024, both parties appeared for a due process hearing. At the due process hearing:

The DOE did not seek to introduce witness testimony nor any other evidence. Tr. January 8, 2024.

Based upon the record, I find:

1) The DOE failed to implement an IEP for Student for the 2023-2024 school year, denying Student a free appropriate public education (FAPE) for the 2023-2024 school year; and,

2) The relief Parent seeks is appropriate.

PROCEDURAL HISTORY

A due process hearing was held on January 8, 2024. At the hearing, DOE presented no exhibits, no witnesses, declined to put on a case, and that Parent’s requested relief is appropriate. Tr. January 8, 2024.

Parent submitted seven exhibits into the record. Included in Parent’s evidence the DPC, Student’s most recent IEP, from August 22, 2022, and an affidavit from Service Provider.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. Part 200.

LEGAL FRAMEWORK

Except for showing the appropriateness of a unilateral Parental placement, the burden of proof is on the school district during an impartial hearing. Educ. Law § 4404(1)(c); see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014).

Both the IDEA and the Education Law provide that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A); Education Law §§ 4402(2)(a), (b)(2). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive Individualized Education Program (“IEP”). 20 U.S.C. §§ 1401(9), (29). 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). 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. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988, 999 [2017]. If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381-82 (2d Cir. 2003); W.G. v. Bd. of Trustees of Target Range School Dist. No. 23, 960 F. 2d 1479, 1484 (9th Cir. 1992); J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000); 8 NYCRR § 200.5(4)(ii). School districts are obligated to provide the special education services listed in a student’s IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d).

The IDEA directs that, in general, an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” Walczak v. Florida Union Free School Dist., 142 F.3d 119, 130 [2d Cir. 1998]; Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created” Endrew F., 137 S. Ct. at 1001. The IDEA ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 [2d Cir. 1989]. Additionally, school districts are not required to “maximize” the potential of students with disabilities Rowley, 458 U.S. at 189; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra v. Pawling Central School Dist., 427 F.3d 186, 195 [2d Cir. 2005], quoting Walczak, 142 F.3d at 130.

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 440, 454 [2d Cir. 2015]. Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion. Florence County Sch. Dist. Four v. Carter ex rel. 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 certain decisions, the SRO has utilized Burlington/Carter analysis instead of a compensatory services approach when deciding cases in which the Parent alleges that the DOE failed to implement an IESP. See Application of the New York City Department of Education, Appeal No. 23-071 (SRO NY 2023). I respectfully decline to follow this analysis for the reasons outlined below.

First, I note that utilizing a Burlington/Carter analysis places a burden on the Parent. In due process hearings in New York, school districts have the burden of proof – including the burden of production and burden of persuasion – except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. NY Educ. Law § 4404(1)(c). The plain meaning of the term tuition is the cost paid for enrollment in a school. Additionally, the term “placement” in IDEA cases has also meant a school, not services. Clearly, the law regarding the burden in New York was meant to address cases in which a parent unilaterally places the student in a private special education school, not failure-to-implement IESP cases, and to require a Burlington/Carter analysis would shift the burden regarding “prong II” to the parent, which I do not believe is what NY Educ. Law § 4404(1)(c) intended.

Second, both Burlington and Carter are distinguishable from NY Educ. Law § 3602-c cases because they involved parents who rejected the school district’s IEP as inappropriate and unilaterally placed their children in other schools. Burlington and Carter are filled with references to parental rejections of the IEP and parental placements in schools. Unlike in Burlington and Carter, in this case, the Parent and the DOE agree that the services in the Student’s IESP were appropriate. The sole dispute between the parties regards the rate and quality of services provided, which the DOE characterized as equitable considerations. Tr. January 8, 2024. Also, unlike in Burlington and Carter where the parents placed the students in private schools, in this case, the Parent hired a provider to provide special education services and did not hire a school to provide the services.²

Third, applying a Burlington/Carter analysis forces the parent into a predicament that is contrary to the purposes of the IDEA and state law. If the district fails to implement the IESP, the Parent must either pay for the services the student should have been receiving, in which case the services are no longer “free,” or the Parent must forgo the services pending the outcome of the litigation, which is inappropriate as it forces the student to suffer without services. Ironically, Burlington addressed this exact situation when it said, “[t]he Act was intended to give [] children [with disabilities] both an appropriate education and a free one; it should not be interpreted to defeat one or the other of those objectives.” As such, applying Burlington/Carter creates unintended outcomes that defeat the purpose of the IDEA and NY Educ. Law § 3602-c.

Fourth, the SRO has been inconsistent in about whether to apply a Burlington/Carter analysis or compensatory analysis. For example, in Application of a Student with a Disability, Appeal No. No. 23-065, the SRO used a compensatory services analysis in a Section 3602-c case. (SRO 2023). As such, the SRO appears to be acknowledging that there is flexibility regarding the appropriate test to use.

Requested Relief

The relief requested by the Parent is equitable in nature, as Parent is asking me to devise an appropriate remedy to address the DOE’s failure to provide Student with a FAPE on an equitable basis for the 2023-2024 school year.

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” Sch. Comm. of Town of Burlington, Mass., v. Dep’t 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, 790 F.3d at 454.

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P., v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child’s education.” Somoza v. New York City Dep’t of Educ., 538 F.3d 106, 109 N.2 (2d Cir. 2008). Courts “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. Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more — they must compensate.” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original). Compensatory education is a “replacement of educational services the child should have received in the first place,” and an award of compensatory education “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.” Reid, 401 F.3d at 518, 524. Compensatory education awards can be used to remedy a school district’s substantive as well as its procedural violations of FAPE. Doe v. East Lyme, 790 F.3d at 456. Additionally, compensatory education awards may include reimbursement for out-of-pocket educational expenses paid by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate alternative. Foster v. Bd. of Educ. of the City of Chicago, 611 Fed. App’x 874, 878-79 (7th Cir. 2015); Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 277-78 (3d Cir. 2014).

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 and stated that it agreed that the services being sought by Parent would be appropriate if funded at a reasonable market rate.³ Tr. January 8, 2024. DOE did not refer any service providers; the Parent was only able to find providers for the recommended services at an enhanced rate. (P-A). There is no evidence in the record that supports what a reasonable market rate for services is.

Findings

After a full review of the record generated at hearing, my findings of fact are as follows:

During the due process hearing the parties agreed (or, at the least, the DOE conceded):

1) Student is eligible to receive services through an IEP for the 2023-2024 school year. Tr. January 8, 2024.;

2) The services described in the August 22, 2022, IEP are appropriate for Student. Tr. January 8, 2024;

3) DOE failed to implement these services for Student. Tr. January 8, 2024.; and,

4) Parent’s proposed compensatory award is appropriate. Tr. January 8, 2024.

As to Student’s eligibility, Student and Parent reside in New York City and Student attends a Charter School located in New York City. P-A. Student’s most recent IEP classifies Student as a Preschool Student with a Speech and Language Impairment. P-B.

Considering the foregoing, the DOE has failed to establish that Student was provided a FAPE on an equitable basis for the 2023-2024 school year.

ORDER

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

1. The DOE shall fund the following services for the entirety of the 2023-2024 school year:

a. 10 hours of Special Education Itinerant Teacher Support Services, English, direct service, 2:1 by a provider of the Parent’s choosing at $175 an hour;

b. Speech and Language Therapy, English, 2:1, 2x30 for the remainder of the 2023-2024 school year, at an enhanced rate.

2 The DOE is to fund a bank of compensatory education hours for every missed Speech and Language Therapy sessions since the start of the 2023-2024 school year until the student starts his speech and language services.

3 If Parent paid for any of the services described above, DOE must reimburse Parent for the cost of the services described above upon submission of proof of payment.

2. The DOE shall directly fund the providers selected by Parent upon receipt of (1) invoices for services rendered, (2) session notes for each service (at least weekly session notes), and (3) a sworn affidavit from each provider that the services described in the invoices were actually rendered.

3. To the extent such services, as described in Paragraph (1) above, are not provided to the student by 9/8/2025 any remaining services shall expire.

SO ORDERED.

DATED: 01/09/2024/Lauren Fazzino/ (signed electronically)

Impartial Hearing Officer

Lauren Fazzino

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

Exhibit	Document	Date	Pages
A.	Impartial Hearing Request	09/05/2023	4
B.	Individualized Education Program	08/22/2022	12
C.	Provider’s Certificate	Undated	2
D.	Affidavit Regarding SETSS	12/26/2023	1
E.	Notice of Intent	05/22/2023	1
F.	Progress Report	05/17/2023	4

DOE EXHIBITS – N/A

IHO EXHIBITS- N/A

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] To be clear, NY Educ. Law § 3602-c cases concern students who are placed in private schools but those are not the “unilateral” special education placements contemplated by the IDEA. Instead, NY Educ. Law § 3602-c confers additional rights to students whose parents put them in non-public schools and ensures that they receive special education services while attending those schools.

[3] DOE failed to present any evidence on what a reasonable market rate is for the services Parent is seeking.