Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 258911

Student’s Name: [REDACTED]

School District: [REDACTED]

Impartial Hearing Officer: Ronald Abraham

Date of Filing: September 7, 2023

Date of Hearing: December 12, 2023

Record Close Date: December 14, 2023

Date of Decision: December 15, 2023

Time Sensitive: No

Names and Titles of Persons Who Appeared December 12, 2023

For the Student:

[REDACTED], Parent Attorney/Representative

For the Department of Education:

[REDACTED], DOE Attorney/Representative

BACKGROUND

Student is a [REDACTED] year old child who is classified by the New York City Department of Education’s (DOE or District) Committee on Special Education (CSE) as a child with a “Disability”.^[1] The Student’s classification is not in dispute.

Parent alleges that the DOE failed to provide Student with a Free and Appropriate Public Education (FAPE) for the 2023-2024 school year and requests the following findings: 1) the DOE fund fifteen (15) periods per week of bilingual Russian special education teacher support services (SETSS), for the entire twelve (12) month 2023-2024 school year, by an independent provider of Parent’s choosing, at a rate of $125.00 per hour; 2) the DOE fund three (3) periods per week of bilingual Russian speech-language therapy, by an independent provider of Parent’s choosing; 3) the DOE fund two (2) periods per week of occupational therapy, by an independent provider of Parent’s choosing; 4) the DOE fund a bilingual Russian neuropsychological evaluation, by an independent provider of Parent’s choosing; and 5) the DOE fund a bilingual Russian speech and language evaluation, by an independent provider of Parent’s choosing.

PROCEDURAL HISTORY

On September 7, 2023, Parent filed a due process complaint (DPC) against the DOE, on behalf of Student, under Case No. 258911, pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”), see 20 U.S.C. § 1415(f), and New York State Education Law §§ 4404(1). On September 20, 2023, I was appointed impartial hearing officer (“IHO”) for this case to determine the claims in the DPC and conduct an impartial hearing pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1). On October 7, 2023, the resolution period expired without the parties reaching an agreement. On October 20, 2023, a settlement conference was held. Finally, on December 12, 2023, a hearing on the merits was held.

At the hearing, Parent’s attorney submitted eight (8) exhibits, all of which were admitted into evidence. Parent’s attorney also presented two (2) witnesses via affidavit: 1) Provider; and

2) Parent. The DOE made an opening statement, submitted three (3) exhibits, all of which were admitted into evidence, did not present any witnesses, did not present a case, did not cross-examine either of Parent’s witnesses, and waived its closing statement. A list of the documentary evidence in this proceeding is appended to this Order.

JURISDICTION

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 NYCRR § Part 200.

LEGAL FRAMEWORK

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. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 NYCRR § 200.5(j)(4)(ii).

The IDEA is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). 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”). 34 C.F.R. § 300.13. A FAPE is further defined as “educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). Two purposes of the IDEA are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B).

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 (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

In New York, “Boards of education . . . 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 or person in parental relation of any such student.”^[2] The “request shall be reviewed by the committee on special education [CSE] of the school district of location, which shall develop an individualized education service program [IESP] for the student . . . [and] assure that special education programs and services are made available to student with disabilities . . . on an equitable basis” to programs at other public or nonpublic schools in that district.^[3] Offering services on “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 . . . 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.”^[4] As such, 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.” ^[5]

If a dispute arises between a parent and a school district over the provision of services under an IESP, “[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil” via an impartial due process hearing, as called for by the IDEA.^[6] Where it is determined that IESP services were not appropriately provided on an equitable basis, the New York State Education Law permits an IHO to redress the violation under the same broad authority available for violations of the IDEA.^[7] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act,”^[8] and damage awards are not available under the IDEA.^[9] Thus, the tribunal “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” ^[10]

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, 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. NYS Educ. Law § 4404(1)(c). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).

FINDINGS OF FACT AND DECISION

In IDEA impartial due process proceedings conducted in New York, the burden is on the DOE to establish that it provided a student with a FAPE. M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017). At the hearing, the DOE failed to introduce any documentary or testimonial evidence regarding the appropriateness of the program set forth in the IEP in order to enable Student to make progress in light of Student’s circumstances. As a result, the DOE failed to sustain its burden under the Education Law and failed to demonstrate it provided Student with a FAPE for the 2023-2024 school year. Based on the DOE’s failure to sustain its burden under the Education Law, the record establishes that the DOE failed to provide Student with a FAPE for the 2023-2024 school year.

A district cannot be absolved of its statutory obligation to implement services for a student simply by being inactive in implementing the mandated services. At the hearing, it was undisputed that the DOE failed to provide services to Student in conformity with either of the IEPs submitted into the record by Parent and the DOE.^[11] In failing to do so, the DOE failed to provide Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district. Furthermore, at the hearing, the following was undisputed: 1) the CSE failed to arrange for the provision of special education and related services for Student for the 2023-2024 school year; and 2) the CSE failed to offer viable providers to implement Student’s last agreed upon 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 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 threepart test that has come to be known as the Burlington-Carter test.” (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”.) Thus, the procurement of a private provider for SETSS services must be examined using a Burlington/Carter unilateral placement framework because the administrative due process system was not designed to set rate-making policies for what has grown into a completely unregulated industry of independent special education teachers that parents within the New York City Department of Education are increasingly reliant upon, an industry that is not authorized by the State in the first place. (See SRO 21-101)

Burlington/Carter Analysis

Prong I

As stated above, since the DOE failed to introduce any documentary or testimonial evidence regarding the appropriateness of the program set forth in the IEP in order to enable Student to make progress in light of Student’s circumstances, the DOE failed to address or sustain its burden under the Education Law and failed to demonstrate it provided Student with a FAPE for the 2023-2024 school year. Accordingly, the record establishes that the DOE failed to provide Student with a FAPE for the 2023-2024 school year, and Parent has met the first prong of the Burlington/Carter analysis.

Prong II

The record reflects that Student’s individual special education needs were provided by the Provider’s program and that, in said program, Student made academic progress.^[12] Said services were provided by a New York State Certified Special Education Teacher for Students with Disabilities from birth through grade 2.^[13] The uncontroverted testimony of Provider stated that Student “requires at least 3 hours per day (15 hours per week) of 1:1 SEIT/SETSS instruction to make educational progress in a private Kindergarten setting”.^[14] Based on the foregoing, I find that Provider’s SETSS program for Student was reasonably calculated for Student to receive educational benefit. As a result, I find that Parent has met the second prong of the Burlington/Carter analysis.

Prong III

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. (Burlington, 471 U.S. at 374.) “Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. “A major consideration . . . is whether the parents have cooperated [with the school district] throughout the process to ensure that their child receives a FAPE” N.R. ex rel. T.R. v. Dept. of Educ., 2009 WL 874061, at *6 (S.D.N.Y. 2009) (citation omitted). There is nothing in the hearing record to suggest, let alone demonstrate, that Parent interfered in any manner with the DOE’s evaluation of Student or prevented it from providing Student with a FAPE for the 2023-2024 school year. As stated above, the following was undisputed: 1) the CSE failed to arrange for the provision of special education and related services for Student for the 2023-2024 school year; and 2) the CSE failed to offer viable providers to implement Student’s last agreed upon services. Based on the foregoing, I find Parent has met the third prong of the Burlington/Carter analysis, as a weighing of the equities supports an award of SETSS and Related Services funding and/or reimbursement to Parent.

Regarding Student’s evaluations, at the hearing, it was undisputed that the DOE did not conduct evaluations prior to Student’s “Turning 5” meeting in preparation for the creation of Student’s IEP. As a result, I find Parent’s request that Student be provided with bilingual Russian neuropsychological and speech and language evaluations to be necessary. Finally, as Parent did not provide any evidence to substantiate Student’s necessity to receive SETSS on an extended school year basis, I do not find Parent’s request for SETSS to be provided on an extended school year basis to be warranted.

ORDER

Based on the above Findings, it is hereby: ORDERED, the DOE failed to provide Student a FAPE for the 2023-2024 school year; ORDERED, the DOE fund fifteen (15) periods per week of bilingual Russian special education teacher support services (SETSS), for the entire 2023-2024 ten (10) month school year, by the independent provider of Parent’s choosing, at a rate not to exceed $125.00 per hour; ORDERED, the DOE fund two (2) periods per week of bilingual Russian speech-language therapy, as provided in Student’s IEP dated June 23, 2022, by an independent provider of Parent’s choosing, at a rate not to exceed $200.00 per hour. As Parent has not yet been able to locate a provider for these services, the total hours Student would receive for the entire 2023-2024 school year shall be placed into a bank of compensatory hours, which will expire three years from the date of this decision; ORDERED, the DOE fund two (2) periods per week of occupational therapy, as provided in Student’s IEP dated June 23, 2022, by an independent provider of Parent’s choosing, at a rate not to exceed $200.00 per hour. As Parent has not yet been able to locate a provider for these services, the total hours Student would receive for the entire 2023-2024 school year shall be placed into a bank of compensatory hours, which will expire three years from the date of this decision; ORDERED, the DOE fund a bilingual Russian neuropsychological evaluation, by an independent provider of Parent’s choosing, at fair market rate; and ORDERED, the DOE fund a bilingual Russian speech and language evaluation, by an independent provider of Parent’s choosing, at fair market rate.

So Ordered.

Ronald Abraham Dated: December 15, 2023 Ronald Abraham (signed electronically) 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.

PARENT’S EVIDENCE

A. Due Process Complaint 9/7/2023 6 pages

B. Ten Day Notice 8/23/2023 3 pages

C. Individualized Education Program 6/23/2022 16 pages

D. Service Contract Agreement 2023-2024 [REDACTED] Quarterly 9/1/2023 1 page

E. Progress Report 6/15/2023 7 pages

F. Affidavit of [REDACTED] 11/14/2023 7 pages

G. Affidavit of [REDACTED] Pendency Agreement 11/14/2023 4 pages

H. (IHO ) DOE’S EVIDENCE 11/1/2023 1 page

1. Prior Written Notice of Recommendation 5/20/2023 9 pages DOE

2. IEP 4/20/2023 26 pages DOE

3. PWN – Reevaluation APPENDIX [REDACTED] Information Term Used In FOFD [REDACTED] Student [REDACTED] Parent [REDACTED] Parent’s Attorney/Representative [REDACTED] DOE’s Attorney/Representative [REDACTED] Provider [REDACTED] School District 1/4/2023 5 pages DOE

Footnotes

[1] Ex. C at 2.

[2] N.Y. Educ. Law § 3602-c(2)(a).

[3] Id. at § 3602-c(2)(b) (emphasis added). This law is known as the “dual enrollment” statute. See Application of a Student with a Disability, Appeal No. 20-115 (Sept. 3, 2020) at pg. 1.

[4] 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).

[5] Id.

[6] Education Law § 3602-c(2)(b)(1); 20 U.S.C. §§ 1221e-3, 1415(e)-(f); Education Law § 4404(1); 34 CFR §§ 300.151- 300.152; 8 NYCRR §§ 200.5(h)-(l).

[7] 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]).

[8] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).

[9] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).

[10] See Doe v. East Lyme, 790 F.3d at 454.

[11] See Exs. 2 and C.

[12] See Ex. F.

[13] Id. at 1.

[14] Id. at 5.