Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Student’s Name: Student

District of Private

School Location: N.Y.C. Dept. of Ed., District #

REDACTED

Impartial Hearing Officer: Ritter, Jennifer

Date of Filing: 9/14/2023

Hearing Requested by: Parent

Date of Hearing: 11/13/2023

Record Close Date: 12/5/2023

Date of Decision: 12/5/2023

BACKGROUND

Parent, through counsel, filed a Due Process Complaint (“DPC”) on or about 9/14/2023. (Parent’s Exhibit A, hereinafter, “P A”).

Parent alleges that the Department of Education (“DOE”) failed to implement an individualized education service plan (“IESP”) for the 2023-2024 school year. Id. Parent seeks a compensatory education award consisting of Special Education Teacher Support Services (“SETSS”), 5 hours per week; Occupational Therapy (“OT”) 2x30 1:1; and Speech-Language Therapy (SLT”) 3x30 1:1. (P A; B-8).

In light of the foregoing and as more fully discussed below, I find that the DOE failed to implement the IESP, thereby denying Student a free appropriate public education (“FAPE”) on an equitable basis for the 2023-2024 school year, and that the relief Parent seeks is appropriate compensatory relief.

PROCEDURAL HISTORY

I was appointed on 9/29/2023. A settlement conference was held virtually on 10/25/2023. This case was part of an “Omnibus group.” Omnibus groups are groups of cases with similar issues which are held at the same time to make the process more efficient for all parties. A status conference was held to discuss the IHO’s rules for the Omnibus proceedings. (IHO I , II). These rules were sent to the parties on October 4, 2023. (IHO III). In part, the rules state: Parties cannot “reserve rights” that conflicts with any order issued by the IHO or with Federal and State law. (IHO I, 6(a)(v)).

Within 2 business days of receiving affidavits, the parties shall set forth whether they plan to cross-examine any witnesses and the time they are requesting for cross-examination. The party must specify the name of the witness that they plan on questioning. A parties’ failure to comply with this rule will be considered as a waiver of the party’s right to cross-examine the witness. (IHO I at 6(b)(vi).).

The rules of disclosure and directives in the Omnibus Orders prevent a party from being surprised at the hearing. Compare Application of a Student with a Disability, Appeal No. 23-121,

p. 7.

On 11/13/2023, both parties appeared virtually for a hearing. On 11/13/2023, both parties appeared virtually for a hearing. The DOE requested that (2) exhibits be admitted into the record. Parent objected because the exhibits were not timely. (Transcript 11/13/2023 at page 7-8, hereinafter, “Tr. 11/13/23 at p. 7-8”). The DOE’s Exhibits were not allowed into evidence pursuant to 8 NYCRR 200.5 (j)(3)(xii). (Id.). The DOE presented no witnesses. Parent submitted eleven (11) exhibits into the record.^[1] The DOE objected to Exhibit A, the DPC, because it is hearsay. Exhibit A was admitted into evidence. (Tr. 11/13/23 at p. 8-9). The DOE objected to Exhibit C, a request for services, also known as the “June 1st notice, because it was not signed by Parent. Despite text of the letter stating the law firm represented Parent, the DOE insisted that the CSE had no way of knowing whether the law firm represented Parent. Exhibit C was admitted. (Tr. 11/13/23 at p. 10-14). Parent submitted two (2) affidavits, from Parent and from Service Provider, Exhibits J and K. The DOE objected to both exhibits on the basis that it was not permitted to cross examine the affiants. Since the DOE failed to follow the rules promulgated by the IHO, their objection to admitting the affidavits was denied and the exhibits were admitted into evidence. (Tr. 11/13/23 Tr. p. 17-18 and 5-6). Parent objected and argued that she would be prejudiced because she waited for the notice and when none was forthcoming, she released her witnesses. No cross-examination was allowed because the DOE did not provide notice of who they wanted to cross-examine, and it would be prejudicial to Parent. (Tr. 11/13/23 Tr. p. 5-6). Both parties rested and made closing statements. (Tr. 11/13/23 at p. 18-19, 20-). DOE challenged the appropriateness of the services, and that Parent was not specific about the types of services and how they are tied to Student’s educational progress. (Tr. 11/13/2023 at p. 19). The DOE agreed that the 4/13/2021 IESP was the operative IESP and that the DOE has not presented evidence that they are providing the services. (Tr. 11/13/23 at p. 22-23). Parent’s counsel made an oral closing stating that they are merely seeking implementation of the plan that the DOE recommended. (Tr. 11/13/23 at p 19).

JURISDICTION

The hearing and decision in this matter are authorized pursuant to the Individuals with Disabilities Education Act (hereinafter, IDEA”), 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law §4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. §200.5 et seq., and Section 3602-c of the New York State Education Law.

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 Student and Parent reside in New York City and Student attended the Private School during the 2023-2024 school year. (P A-1, B-2) Furthermore, it is uncontested that the Private School is located within the geographic boundaries of the DOE. Parent did not challenge the content of the IESP, merely the delivery of the recommended services. (P A).

Burden

Except for in circumstances not applicable here, 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))

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”) (20 U.S.C. § 1401(9)). 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). 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.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

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 (20 U.S.C. § 1412(a)(l)(A); Educ. Law§ 4402(2)(a), (b)(2)). 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)). 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 (Educ. Law § 3602-c(2)). 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]" (Educ. Law§ 3602-c(2)(b)(l)).

Here, there is no dispute that Student is entitled to services pursuant to the IESP dated 1/15/2021. (P B). Parent alleges and credibly testified that the DOE failed to implement SETSS, SLT and OT, and the DOE, which bears the burden of proof, has failed to introduce any evidence to the contrary.

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" (Educ. Law § 3602-c(2)(a)). 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” (Educ. Law § 3602-c(2)(b)(1)). 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 Student in conformity with the IESP (Educ. Law§ 3602-c(2)(a), (b)(l). 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.

Compensatory Relief

A Burlington/Carter Analysis is Inappropriate

Some Officers in the Office of State Review has stated that Impartial Hearing Officers should utilize the 3-Prong 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. Application of the New York City Department of Education, Appeal No. 23-071 (SRO NY 2023). I respectfully disagree for the reasons outlined below.

Section 3602-c is entirely a creature of state law and it does not have a corollary in the IDEA or other federal statutes. The Burlington/Carter cases involved Parents who (1) rejected the school district’s IEP as inappropriate and (2) unilaterally placed their children in other schools. For example, in Burlington, the Court references rejection of an IEP when it stated, “[t]he first question on which we granted certiorari requires us to decide whether this grant of authority includes the power to order school authorities to reimburse Parents for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act.” Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 369, (1985). Likewise, the Court limited the discussion to schools when it wrote, “it seems clear beyond cavil that ‘appropriate’ relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school.” Id at 369.

Unlike in Burlington and Carter, in this case, the Parents and the DOE agree that the services in the Student’s IESP were appropriate. The dispute between the parties revolves around the DOE’s unwillingness to provide Student with services outlined in their proposed plan. Also, unlike in Burlington and Carter, where the parents placed the students in private schools, in this case, though the student may be in a private school, only the supportive services are requested, NOT tuition reimbursement.

Additionally, applying a Burlington/Carter analysis to failure-to-implement cases forces the Parents into a predicament that is contrary to the purposes of the IDEA and state law. If the district fails to implement the IESP, the Parents must either pay for the services the student should have been receiving, in which case the services are no longer “free,” or the Parents 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.” Burlington, 471 U.S. at 372. As such, applying Burlington/Carter creates unintended outcomes that defeat the purpose of the IDEA and Section 3602-c.

In a recent decision, the SRO favored a Burlington analysis because the “administrative due process system was not designed to set rate-making policies for what has grown into a completely unregulated cottage industry.” Application of the New York City Department of Education, Appeal No. 23-071 (SRO NY 2023). However, Burlington/Carter requires IHOs to assess the appropriate cost of a private school’s tuition, thus setting a “rate.” IHOs regularly examine evidence of rates for Independent Educational Evaluations and compensatory services for students who attend public schools and have been denied a FAPE. The administrative due process system was specifically designed to address special education claims and set rates for tuition and services where necessary. The same recent SRO decision stated that the attempts to analyze Section 3602-c failure-to implement cases “that do not use a Burlington/Carter analysis have tended to lead to chaos,” but I disagree. Application of the New York City Department of Education, Appeal No. 23-071 (SRO NY 2023). In my view, these cases (including this case) are simple: the DOE was supposed to provide a service and the DOE did not provide the service, so the student is entitled to compensatory services.

I also note that the SRO has itself been inconsistent in about whether to apply a Burlington/Carter analysis or compensatory analysis. For example, in Appeal No. 23-065, the SRO used a compensatory services analysis in a Section 3602-c case. Application of a Student with a Disability, Appeal No. 23-065 (SRO NY 2023). Therefore, even some SROs believe that a compensatory services approach is the appropriate approach to deciding these cases.

Using a Burlington/Carter analysis improperly places a burden on the parent. In New York, school districts have the burden of proof –including the burden of production and burden of persuasion – except when a Parent is seeking tuition reimbursement for a unilateral placement. NY Educ. Law § 4404(1)(c)). Even then, the parent must only show that the placement they selected is appropriate. Id. The New York State Education Department (“NYSED”) itself recognizes that parents only have a burden related to the appropriateness of a private school. See New York State Law, Regulations and Policy Not Required by Federal Law/Regulation/Policy March 2023, available at https://www.nysed.gov/sites/default/files/special-education/nys-608analysis-updated-march-2023_.pdf (stating “[t]he law creates an exception for impartial hearings in which the parent seeks tuition reimbursement for a unilateral placement in a private school” at

p. 11.) (Emphasis added). 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. (See 34 C.F.R. 300.130 where the definition of parentally placed private school children means placement in schools that meet the definition of elementary or secondary schools.)

Finally, Educ. Law § 4404(5) defines tuition as “instructional services.”^[2] The definition of “instructional services, does not include the “related services” sought by parents in these actions. The Commissioner defines related services as “developmental, corrective, and other supportive services as are required to assist a student with a disability.”^[3] The definition of SETSS (Special Education Teacher Support Services) places these services as “related” services not “instructional.” These services are not instructional and should not be lumped with cases involving the Burlington-Carter analysis.

A Burlington/Carter analysis was meant to address cases in which a parent unilaterally places the student in a private school, not failure-to-implement IESP cases. Requiring a Burlington/Carter analysis would shift the burden regarding “prong II” to the Parents. NY Educ. Law § 4404(1)(c) did not intend this. If the Legislature had intended to place a burden on Parents for 3602-c cases, they would have done so. As such, when the DOE fails to implement the services on a student’s IESP, as it has done here, a compensatory services analysis is the appropriate tool. Furthermore, to the extent that guidance can be found in federal caselaw, it appears that when analyzing support services, the Federal Courts use a compensatory relief analysis.

A Compensatory Relief Analysis is Appropriate

The remedy for a school district’s failure to provide appropriate equitable services required under Education Law § 3602-c is akin to the remedy for a school district’s failure to provide appropriate services under the IDEA. 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). Under the IDEA, courts can “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) (internal citation omitted)). In East Lyme, the Second Circuit analyzed both tuition reimbursement and a request for support services. The Second Circuit treated each of these claims differently. The tuition reimbursement claim was analyzed under a Burlington/Carter approach. (Id at 452-455). When the Second Circuit ruled on reimbursement for supportive services which were owed under pendency, the Second Circuit used a compensatory relief analysis. (Id. at 456-457). The Court held that We are not confronted with a Burlington scenario. Under the 2008-2009 IEP, the Student was to attend Solomon at parental expense and to receive related services at the expense of the Board. While paying for the related services herself, the Parent maintained that continuous placement during the pendency of this litigation. And far from declining the protection of stay-put, the Parent actively invoked it. (Id. at 454.)

Thus, the compensatory education analysis is appropriate where the parents and the school district agree on the appropriate student services, but the district fails to implement the services.

Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence Cty. Sch. Dist. Four v. 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).

A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time, and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction because of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education can serve as a “replacement of educational services the child should have received in the first place", and any award "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA[.]" Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").

Compensatory education awards may include payment for out-of-pocket educational expenses incurred 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 remedy. Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-79 (7th Cir. 2015) (internal citations omitted). Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers. Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 (D. Minn. 2022), citing Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2019). Parents should be afforded “leeway in locating services for the student, since identifying an appropriate group setting for the student to receive her unilaterally provided SETSS in the private school may not have been possible and the district could have avoided this problem by implementing the recommendation.” Application of a Student with a Disability, SRO 23-033, p. 12-13.

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. The DOE Parent did not provide specific evidence of their program and that the program was inappropriate.

Parent testified credibly that the DOE never contacted her concerning the mandated IESP services, Parent was not able to identify any providers willing to accept the DOE’s rate. (P J). While it may very well be permissible for a district to include the parent in the identification of a particular provider, especially if the parent is willing and able to do so, it does not follow that the responsibility to redress a parents' inability to locate a provider is shifted to the parent. The DOE does not explain why it did not simply schedule the special education services as mandated by the IESP and, in essence, inform the Parent where and when the services would be available, and at which time Parent would have the responsibility to produce the student in order to receive the services.

Even if I were to analyze this case under the Burlington/Carter approach, the rulings would be the same. Parent timely notified the DOE she wanted services for Student. (P C, J-1). After not hearing from the DOE, Parent entered a binding contract with Service Provider for the services the DOE recommended. (P D-2). Service Provider testified that their rate includes materials, professional development, supervision, taxes, and other administrative costs. (P K-4). Service Provider testified that they provide individualized push in and pull out services and that the SETSS teachers collaborate with the SLT to assist in generalizing goals. (P K-5). Service Provider gave two certificates for Student’s 2 SETSS teachers.^[4] The certificates of the Speech Language Pathologist and Occupational Therapist are current. (P G, H). Parent submitted a progress report which identifies ten Common Core standards that Student is working on with the SETSS providers. (P E). the report contains methodologies used and progress met. (P E). The service plan organized by Parent is appropriate.

I have considered both parties’ positions and find that Student should have received instruction under the 1/15/2021 IESP the entirety of the 2023-2024 school year.^[5] As there is no dispute as to the appropriateness of the IESP recommendation, this same number of sessions are appropriate to put Student in the position they would have been in but for the DOE’s failure to implement the IESP.

There is no evidence or claim made by the DOE asserting or suggesting that Parent failed to cooperate with the DOE or interfered in any manner with the DOE’s obligation to provide Student with 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, as compensatory relief, the following services for the 2023-2024 school year:

(a) Special Education Teacher Support Services (“SETSS”), 5 hours per week, by a provider of the Parent’s choosing at a rate of up to $200.00 dollars per hour.

(b) Occupational Therapy (“OT”) 2x30 1:1, by a provider of the Parent’s choosing at a rate of up to $245.00 dollars per hour.

(c) Speech-Language Therapy (SLT”) 3x30 1:1, by a provider of the Parent’s choosing at a rate of up to $245.00 dollars per hour.

(2) The DOE shall pay to the Providers listed above upon receipt of invoices for services rendered.

(3) To the extent such services, as described in Paragraph (1) above, are not provided to the Student by June 30, 2024, any remaining services shall expire.

(4) The DOE shall convene a CSE within 30 days to develop an appropriate IEP or IESP in advance of the 2024-2025 school year.

Dated: 4/22/2026

Ritter, Jennifer

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

PARENT EVIDENCE

A. Impartial Hearing Request 9/14/2023 6 pages

B. IESP 1/15/2021 11 pages

C. Request for Services 5/24/2023 1 page

D. Contract 8/22/2023 4 pages

E. Progress Report 10/28/2023 7 pages

F. Provider Certificate SETSS Teacher 9/1/2009 1 page

G. Provider Certificate SETSS Teacher 6/17/2023 1 page

H. Provider Certificate Speech Language Pathologist Undated 1 page

I. Provider Certificate Occupational Therapist Undated 1 page

J. Parent Affidavit 10/30/2023 2 pages

K. Service Provider Affidavit 10/31/2023 6 pages

IHO EXHIBITS

I. IHO Omnibus Rules Undated 8 pages IHO

II. Additional Omnibus Rules Undated 1 page IHO

III. Email from IHO to parties with rules attached. 10/4/2023 3 pages IHO

Footnotes

[1] Exhibits A – K were admitted into evidence. The DOE’s objections are summarized here.

[2] Education Law § 4401 [5] defines “tuition” as “the per pupil cost of all instructional services, supplies and equipment, the operation of instructional facilities and allocable debt service for the instructional facilities, as determined by the commissioner” [emphasis added].

[3] “Related services means developmental, corrective, and other supportive services as are required to assist a student with a disability and includes speech-language pathology, audiology services, interpreting services, psychological services, physical therapy, occupational therapy, counseling services, including rehabilitation counseling services, orientation and mobility services, medical services as defined in this section, parent counseling and training, school health services, school nurse services, school social work, assistive technology services, appropriate access to recreation, including therapeutic recreation, other appropriate developmental or corrective support services, and other appropriate support services and includes the early identification and assessment of disabling conditions in students.” NYCRR § 200.1(qq).

[4] One teacher is certified in grades 1-6 for Students with Disabilities and the other SETSS teacher has a bilingual extension. (P F, G).

[5] There are 180 days in the school year. School meets five (5) days a week. This means that there are 36 weeks in a school year.