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CASE NUMBER:608704 – NYC:255847
FINDINGS OF FACT AND DECISION
Case Number: 255847
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: September 7, 2023
Hearing Requested by: Parent
Date of Hearing: December 18, 2023
Record Close Date: December 18, 2023
Date of Decision: December 18, 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 September 7, 2023. Parent alleges that the Department of Education (“DOE”) failed to implement Student’s IESP and seeks funding at an enhanced rate for some or all of the services. Specifically, parent seeks funding for three hours of Special Education Teacher Support Services (“SETSS”) currently being provided by Agency.
III. PROCEDURAL HISTORY AND HEARING
I was appointed on September 12, 2023. On December 18, 2023, parent’s counsel appeared virtually for a hearing. DOE, despite notice of the hearing, did not appear, and the hearing was conducted in their absence. Additionally, no disclosure was provided by DOE. Parent provided nine exhibits prior to the hearing and they were admitted into evidence. Parent introduced two affidavit(s)[1] in lieu of direct testimony.[2]
Parent submitted the IESP into evidence.[3] It is uncontested that DOE did not implement these services. I find that parent’s unilateral placement for the provision of services for SETSS and related services was appropriate, and the rate requested for those services is reasonable.
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. It is uncontested that the IESP in evidence is the last agreed upon plan. Further, it is uncontested that certain services were recommended for the student, 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 June 3, 2022.[7] Parents request for an order 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 Parent has submitted evidence that it has complied with this requirement.[12]
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
Student is entitled to services pursuant to the last agreed upon 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 to the contrary. As such, it is undisputed that the district failed to provide Student with a FAPE insofar as it has not provided equitable services to Student.
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 Supervisor,[24] 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.”[25] Further, the progress reports submitted further establish this point.[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 find that the testimony of Agency Supervisor[29] provides an adequate basis to find that the rates charged by Agency are reasonable, and DOE has introduced no evidence and made no arguments to the contrary. Finally, I would note that the record before me demonstrates that a valid contract existed.[30] As such, the DOE is ordered to fund all services unilaterally obtained by parent at the requested enhanced rate. Further, I find that direct funding of these services is appropriate given that the price for these services exceeds the Parents ability to pay.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
- Student is entitled to services during the pendency of this proceeding as provided for the in the IESP dated 6/3/2022.
- The DOE shall fund, at a rate of $205.00 per hour for the entirety of the ten-month 2023-2024 school year, up to three periods of SETSS per week within 30 days of submission of an affidavit from Agency stating the dates of services and total hours provided.
Dated: 12/18/2023
_____________________
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 | DPC | 9/7/2023 | 6 |
B | IESP | 6/3/2022 | 11 |
C | TDN | 8/29/2023 | 2 |
D | Notice of Residence to DOE | 5/30/2023 | 2 |
E | Contract | 8/28/2023 | 2 |
F | Provider Credentials | 12/6/2023 | 1 |
G | Progress Report | 12/12/2023 | 5 |
H | Affidavit of Parent | 12/18/2023 | 3 |
I | Affidavit of Agency Supervisor | 12/5/2023 | 3 |
J | |||
K | |||
L | |||
M |
IHO EXHIBITS
Exhibit | Title | Date | Pages |
none | |||
APPENDIX
Redacted Information | Term Used In FOFD |
REDACTED | Student |
REDACTED | Parent |
REDACTED | Parent Attorney/Representative |
No Appearance | DOE Attorney/Representative |
REDACTED | Agency |
REDACTED | Agency Supervisor |
Footnotes
[1] Affidavits may refer to unsworn or unnotarized statements that were then sworn or affirmed to on the record.
[2] See transcript. The instant decision was issued prior to the availability of the transcript.
[3] Exhibit B
[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 D.
[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 Exhibit I.
[25] Frank G., 459 F.3d at 364
[26] See Exhibit G.
[27] Burlington, 471 U.S. at 374.
[28] Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. at 16.
[29] See Exhibit I.
[30] See Exhibit E.