NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 256505
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., District # [REDACTED]
Impartial Hearing Officer: Roberta Wolf, Esq.
Date of Filing: September 7, 2023
Hearing Requested by: Parent
Date of Hearing: October 26, 2023
Record Close Date: November 19, 2023
Date of Decision: November 19, 2023
Time Sensitive: Yes
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 26, 2023
For the Parent and Student:
[REDACTED], Representative
For the Department of Education:
[REDACTED], Representative
BACKGROUND
On September 7, 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) that were mandated under the Student’s most recent Individualized Education Services Program (IESP) dated June 15, 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 Yiddish. The Parent also requested a pendency order.
I was appointed Impartial Hearing Officer (IHO) on September 13, 2023. An omnibus settlement conference with the representatives of the parties was held on October 10, 2023.
I adjudicated a due process hearing on October 26, 2023. At the hearing, DOE offered no evidence. I entered the Parent’s exhibits into the record over DOE’s objection to Exhibit D, the DPC. 3 On the merits, DOE argued that because the Parent placed the Student in a private school, per a Burlington/Carter analysis,[4] the Parent bore the burden under Prongs[2] and[3] of that analysis to establish the appropriateness of that placement, and the Parent had failed to carry its burden.[5] DOE also argued that the Parent must provide certifications or licenses for the service providers chosen by the Parent.[6] DOE did not address or contest the rate of the Parent’s service provider, charging $205 per hour for SETSS. [7]
ANALYSIS
The IDEA provides that children with disabilities are entitled to a FAPE,[8] 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).[9] 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.[10] 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.” [11]
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.[12] The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools.[13] 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.[14] 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].” [15]
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.”[16] A district cannot be absolved of its statutory obligation to implement mandated services for the student through inactivity.[17] 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.”[18] 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.[19] 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. [20]
In the due process complaint, the Parent sets forth allegations that DOE was obligated but failed to deliver services mandated by the Student’s June 15, 2023 IESP for the 2023-2024 school year. 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 the 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.[21] “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.”[22] Compensatory education and services are equitable remedies tailored to meet the unique circumstances of each case.[23] 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. [24] “[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.”[25] 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. [26]
At the hearing, DOE argued that Parent’s placement of the Student in a private school triggered a Burlington/Carter analysis to establish the appropriateness of that placement. However, this case does not involve tuition reimbursement. Here, the Parent instead alleges that DOE never provided the Student with SETSS that it mandated in the Student’s IESP and that it agreed to provide at the private school.
DOE also briefly raised the issue of provider certifications. To the extent that DOE may have been arguing that a Prong 2 Burlington/Carter analysis applies to the service providers selected by the Parent (i.e., the Parent must show that the providers are appropriate), I do not find that approach applicable here. Unlike Burlington/Carter cases, the Parent here has not rejected DOE’s offer of services contained in an IEP in favor of a unilateral placement in another school (and the alternative program offered 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), 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.
DOE did not dispute that: the Student was entitled to special education services; his last IESP was developed on June 15, 2023; and that DOE did not implement the recommendations contained in the IESP. Nor did DOE contest the rate charged by the Parent’s service provider or offer evidence of an alternative appropriate market rate. Similarly, DOE provided no evidence that the Parent behaved unreasonably or that equitable considerations otherwise disfavored the Parent. I find that the Student is entitled to receive the services mandated by the June 15, 2023, IESP and that DOE must either reimburse the Parent or fund the properly licensed provider of their choosing at the provider’s customary rate.
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:
Pendency
1. ORDERED that the June 15, 2023 IESP is the last-agreed-upon placement and constitutes pendency in this matter; and
2. FURTHER ORDERED that DOE shall directly fund and/or reimburse the Parent at a rate not to exceed $205 per hour with a properly licensed provider(s) of Parent’s choosing, within 14 days of the presentation of a valid contract between the 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 services provided during the pendency of this matter (services outlined in #3); and School Year
3. FURTHER ORDERED that DOE shall directly fund and/or reimburse the Parent at a rate not to exceed $205 per hour 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 Yiddish; 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 19, 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 B 06/15/2023 IESP 12 C 08/31/2023 TDN 1 D 09/07/2023 DPC 6 E 08/31/2023 [REDACTED] 2
DOE
None.
Footnotes
[1] Ex. D.
[2] Ex. B.
[3] DOE argued that the DPC should only be considered as reference material but not evidence.
[4] Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 369, (1985).
[5] Tr. p. 6 lines 22-25; p. 7 lines 4-8.
[6] Tr. p. 7 lines 8-10.
[7] Ex. E.
[8] 20 U.S.C. § 1400 (d)(1)(A).
[9] 20 U.S.C. § 1401(9).
[10] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[11] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[12] 20 U.S.C. § 1412(a)(l)(A); Educ. Law § 4402(2)(a), (b)(2).
[13] See 34 CFR 300.137(a).
[14] Educ. Law § 3602-c(2).
[15] Educ. Law § 3602-c(2)(b)(l).
[16] Educ. Law § 3602-c(2)(a).
[17] Educ. Law § 3602-c(2)(a), (b)(l).
[18] Educ. Law § 3602-c(2)(b)(1).
[19] 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).
[20] 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.
[21] 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).
[22] Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citations omitted).
[23] See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
[24] P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008).
[25] 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).
[26] 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.
[27] Application of a Child with a Disability, Appeal No. 21-138.