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CASE NUMBER: 614221 NYC: 261166
FINDINGS OF FACT AND DECISION
Case Number: 261166
Student’s Name: REDACTED
Date of Birth: REDACTED
School District: NYC DOE
Hearing Requested by: Parent
Request Date/Date Complaint Filed: 9/14/2023
Date(s) of Hearing: 11/20/2023
Actual Record Closed Date: 12/15/2023
Date of Decision: 12/16/2023
Hearing Officer: Paul J. DeSena
INTRODUCTION
This is a decision in a hearing under the Individuals with Disabilities Education Act [hereinafter, “IDEA”] and Section 504 of the Rehabilitation Act of 1973. The Student was 9 years of age at the start of the 2023/24 school year and attending a Private School. (Ex. A). In the Due Process Complaint [hereinafter, “DPC”], the Parent alleged that the Department of Education [hereinafter, “District” or “DOE”] failed to implement and fund the services required by the Student’s IESP for the 2023/24 school year, and in so doing, deprived the Student of a Free Appropriate Public Education [hereinafter, “FAPE”] on an equitable basis for that school year. (Ex. A).
The Parent requests direct funding for the 2023/24 school year for services that were called for by the IESP but that the District never implemented. (Hearing Tr., at 89). Additionally, the Parent requests an award of three 30-minute sessions of speech therapy weekly instead of two. (Hearing Tr., at 32).
As discussed below, I find that the District failed to provide the Student a FAPE on an equitable basis for the 2023/24 school year. Additionally, I find that the compensatory education that the Parent requests is reasonable, and that the Student is entitled to three sessions of speech therapy weekly instead of two, as prescribed by her IESP dated 8/10/2021.
PROCEDURAL HISTORY
The Parent filed this case on 9/13/2023 and amended the request on 9/14/2023, which was accepted by the Hearing Officer on 10/25/2013. (IHO Ex. I and II). I was appointed to hear this case on 9/28/2023. I conducted a Pre-Hearing Conference [hereinafter, “PHC”] with the Parties on 10/24/2023. (See generally PHC Tr.). A hearing was held on 11/20/2023. (See generally, Hearing Tr.). The Parent represented herself and the District was represented by counsel (Id.).
At the hearing, the District introduced no exhibits, called no witnesses, and conceded, essentially, that the District had failed to implement the services on the IEP. The District did, however, cross-examine the Parent, and made an opening and closing statement. (See generally, Hearing Tr., at 35, 52-88, 95-96).
The Parents argued that the District denied the Student a FAPE on an equitable basis for the 2023/24 school year and that the Student was entitled to funding for the requested services at the requested rates. (See generally, Hearing Tr.). The Parents introduced exhibits A–M into evidence.[1] (Id., at 28-32). The Parent testified in lieu of an opening statement and made a closing statement. (Hearing Tr., at 36-51, 96-98). This order follows.
FINDINGS OF FACT
After reviewing the record generated at the hearing, I make the following findings of fact and determinations.
At the start of the 2023/24 school year, the Student was a REDACTED-year-old student who attended a Private School. (IHO Ex. I). At that time, the only IESP in effect was dated 8/10/2021, and classified the Student as a student with a speech or language impairment. The Student’s IESP called for the following services: group SETSS for six hours per week; 1:1 speech-language therapy twice per week for 30 minutes per session; and 1:1 occupational therapy three times per week at 30 minutes per session.
(Ex. A, at 6). No meeting was ever held to review this IESP (Hearing Tr., at 56). Because the District failed to provide these services to the Student, the Parent was forced to contract with private providers in order to obtain them. (Exs. B-M). At the Hearing, the District effectively conceded that it failed to implement the services on the IESP, but “reserved its right to challenge the appropriateness of the program which parent has selected.” (Hearing Tr., at 35). In any event, the Parent testified that the District never provider her with either a SETSS, occupational therapy, or speech language provider. (Hearing Tr., at 89).
On 11/2/2023, the Student was evaluated by her speech and language therapy provider. The provider stated that the Student “has difficulty producing a variety of consonant sounds and this significantly affects her intelligibility.” (Ex. H, at 1). In turn, “this impacts her ability to articulate at an age-appropriate level.” (Id.). Additionally, the student “demonstrates difficulty with correct grammar and syntax” and with “sentence structure, incorrect use of prepositions, and tenses.” (Id.). Further, “due to the minimal time in therapy and her level of distraction, limited attention has been given to receptive skills.” (Ex. H, at 2). Finally, the provider stated that the student “continues to lag significantly behind her peers” and so “it is imperative to increase therapy to 3x30 minutes per week to facilitate progress and changes.” (Id.).
CONCLUSIONS OF LAW AND ANALYSIS
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]).
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”) (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]).
Here, there is no dispute that the Student is entitled to services pursuant to the IESP, that the District has conceded that they were so entitled, or that the District failed, completely, to implement any of these services. (Hearing Tr., at 35, 89). Indeed, the District has failed to even conduct a review of the Student’s IESP since 2021. (Hearing Tr., at 56). Accordingly, I find that the District denied the Student a FAPE on an equitable basis for the 2023/24 school year.
B. Compensatory Education
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 by reason 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 to compensate 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] [citing cases]). 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]).
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 did not introduce any evidence regarding appropriate relief, but rather, effectively conceded that the Student was entitled to the following services as listed in the IESP, namely:
6 Hours per week of group SETSS services, 1:1 speech language therapy twice weekly for 30 minutes per session; 1:1 occupational therapy three times weekly for 30 minutes per session. (Hearing Tr., at 35, 89). Accordingly, the Parent’s request for the funding for the services as listed in the IESP is reasonable.
Additionally, the Parent requested that the Student be awarded three speech language therapy session weekly instead of the two provided by the IESP. (Hearing Tr., at 32). It should be noted here that no meeting was ever held to review this IESP (Hearing Tr., at 56), so the student’s program has been effectively frozen since 2021. Additionally, on 11/2/2023, the Student was evaluated by her speech and language therapy provider. The provider stated that the Student “has difficulty producing a variety of consonant sounds and this significantly affects her intelligibility.” (Ex. H, at 1). In turn, “this impacts her ability to articulate at an age-appropriate level.” (Id.). Additionally, the student “demonstrates difficulty with correct grammar and syntax” and with “sentence structure, incorrect use of prepositions, and tenses.” (Id.). Further, “due to the minimal time in therapy and her level of distraction, limited attention has been given to receptive skills.” (Ex. H, at 2). Finally, the provider stated that the student “continues to lag significantly behind her peers” and so “it is imperative to increase therapy to 3x30 minutes per week to facilitate progress and changes.” (Id.). This evaluation, which notes that the Student still lags “far behind her peers,” combined with the District’s total failure to update, at all, the Student’s equitable educational program, justifies, I think, a compensatory award, for school year 2023/24, of an additional session of speech language therapy weekly.
The Parent has averred that they are entitled to direct funding for the SETSS services and the paraprofessional services at the providers rate, as well as direct funding for the speech language therapy, occupational therapy, and counseling. Given that the District never meaningfully controverted the applicable provider’s rates in this hearing, I find that these requests are reasonable.
C. A Burlington/Carter Analysis is Inappropriate
At the hearing, the District tacitly averred that this matter should be analyzed according to the 3prong analysis promulgated by the Burlington/Carter cases. (See Hearing Tr., at 5, 52-88). I disagree.
While it is true that 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 find that this analysis of matters of this type to be fundamentally flawed.
Section 3602-c is entirely a creature of state law and 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 the 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. Too, if the result achieved by following the law in these matters leads to “chaos,” then it is the responsibility of the legislative, not the executive or judiciary branches of government, to remedy the situation.
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.
Furthermore, 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-608-analysis-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]). Too, the plain meaning of the term tuition is the cost paid for enrollment in a school, and the term “placement” in IDEA cases has also historically referred to a school, and not related 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).
What is more, 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.
Finally, a compensatory regime is the only type of remedy explicitly sanctioned by the Second Circuit where, as here, the District has failed to implement. In the context of a closely analogous situation, where the District simply failed to implement a Student’s stay-put program, the Second Circuit stated, in Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456-57 [2d Cir. 2015], that compensatory education, not a Burlington/Carter analysis, was the proper remedy:
“Although we have typically endorsed compensatory education as a remedy for substantive FAPE…there is no reason why the remedy should not be equally available for stay-put violations. We therefore conclude that when an educational agency has violated the stay-put provision, compensatory education may--and generally should--be awarded to make up for any appreciable difference between the full value of stay-put services owed and the (reimbursable) services the parent actually obtained. In this case, the Board owes reimbursement in the amount the Parent expended for services the Board was required to provide, plus compensatory education to fill the gap of required services that the Parent did not fund.” (Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456-57 [2d Cir. 2015]
[emphasis added]).
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 like the one before me here. Requiring a Burlington/Carter analysis would unfairly shift the burden to the Parents to prove their eligibility for that to which they are already entitled by law. It is beyond cavil that NY Educ. Law § 4404[1][c] did not intend this, and indeed, had the Legislature 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 with which to devise a remedy.
Even assuming, arguendo, that the Bulrington/Carter analysis was the proper tool to use to decide this claim, the Student passes muster here. Indeed, prior to the establishment of the IESP, the Parent had requested services for her daughter by the applicable deadline. Further, as established in section A, supra, the District has failed, on an equitable basis, to provide the Student with a FAPE. As to prong # 2, the Parent’s providers are qualified (Exs. B, F, J), the services are provided on a 1:1 basis (Exs. C, G, K), the services are tailored to meet the Student’s needs (Exs. E, H, L), and the Student is making progress using the services (Exs. E, H, L). Finally, and given the District’s failure to update the Student’s 2021 IESP at all in the past two years, the Parent’s extensive attempts to secure providers at the District-provided rates (See generally, Hearing Tr.), and the District’s failure to provide any meaningful guidance on the applicable market rates for the relevant services, I see no equitable reasons to award less than the provider’s stated rates. Indeed, at this point, I feel that equity demands payment of these rates.
ORDER
Accordingly, based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered that, within 35 days of the Date of this Order, the District will directly fund, or, upon a showing of invoices, receipts, or the like, reimburse the Parent for, the following services:
1. Group SETSS services for 6 hours per week at the Parent’s provider’s stated rate
2. 1:1 speech language therapy three times weekly for 30 minutes per session, at the Parent’s provider’s stated rate
3. 1:1 occupational therapy three times weekly for 30 minutes per session, at the Parent’s provider’s stated rate
4. Within 35 days of the date of this order, the CSE is to convene to consider, inter alia, any and all progress reports from Student’s providers in reviewing the Student’s 8/10/2021 IESP.
SO ORDERED.
DATED: 12/16/2023
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.
APPENDIX A – REDACTION IDENTIFICATION PAGE
Term Used In FOFD / Redacted Information
Student REDACTED
Parent/Guardian REDACTED
Parent Attorney/Representative REDACTED
District Attorney/Representative REDACTED
Private School REDACTED
District REDACTED
Student’s Speech Language Therapy Provider REDACTED
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. REDACTED IESP 8/10/2021 (9 pages)
B. SETSS Provider Certification 1/31/2020 (1 page)
C. SETSS Contract 9/4/2023 (1 page)
D. SETSS Provider’s Affidavit 11/1/2023 (1 page)
E. SETSS Progress Report 11/1/2023 (2 pages)
F. SLP Provider’s License and Certificate 8/27/2003, 7/31/2006 (2 pages)
G. SLP Contract 9/4/2023 (1 page)
H. SLP Progress Report 11/2/2023 (2 pages)
I. SLP Affidavit 11/8/2023 (1 page)
J. OT Licenses and Certificates 3/29/2002, 4/10/2002, 5/30/2018 (3 pages)
K. OT Contract 9/4/2023 (1 page)
L. OT Progress Report 11/1/2023 (8 pages)
M. OT Affidavit 11/7/2023 (1 page)
DOE EXHIBITS
1. N/A N/A (N/A pages)
IHO EXHIBITS
I. Due Process Complaint 9/13/2023 (3 pages)
II. Amended Due Process Complaint 9/14/2023 (3 pages)
Footnotes
[1] A detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.
[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).