Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 261202

Student’s Name: Student

Impartial Hearing Officer: Kinanda Murray

Date of Filing: September 14, 2023

Hearing Requested by: Parent

Date of Hearing: November 15, 2023

Record Close Date November 27, 2023

Date of Decision: November 27, 2023

BACKGROUND

On September 14, 2023, the parent filed a Due Process Complaint (DPC) alleging that the Department of Education (DOE) failed to implement an individualized education service plan (IEP) for the 2023 -2024 school year. The parent seeks an order directing the DOE to implement the IEP with provider(s) at “enhanced rates.”

On October 2, 2023, the parties received an email advising them that the due process hearing (DHP) was scheduled for November 15, 2023. On October 2, 2023 the parties also received the Omnibus Interim Order (IHO Murray) that sets forth the rules and procedures for this case. Given the number of cases filed and scheduled for hearings, the purpose of these rules was to ensure an efficient and expedited process as well as to maintain a clean and accurate record of each proceeding. Additionally, the rules set forth procedures to ensure that this case can be heard in a timely matter. The parties were advised that they were expected to comply with the rules and cooperate in ensuring that these goals are achieved. It was suggested that the parties reviewed the order when they received the scheduling email and also prior to the submission of disclosures.

Pursuant to the Omnibus Interim Order, any submissions, arguments, claims or defenses, not in accordance with the directives would not be considered. Therefore, any defenses, claims, or “rights” not properly raised in accordance with the order is waived and not considered herein.

Based upon the record, I find: 1) that the DOE failed to implement the IESP denying the student a free appropriate public education (FAPE) for the 2023-2024 school year; and 2) that the relief Parent seeks is appropriate.

PROCEDURAL HISTORY

On November 15, 2023, both parties appeared for a due process hearing. Parent’s application to exclude the DOE’s exhibits on the ground that they were not timely disclosed was granted. The DOE did not seek to introduce any witness testimony. Parent submitted exhibits A-G into the record, over the DOE’s objection. The DOE cross examined the parent’s witness.

FINDINGS OF FACT AND DECISION

Except for circumstances not applicable here, the burden of proof is on the school district during an impartial hearing.^[1] 0F

The IDEA provides that children with disabilities are entitled to a FAPE.^[2] A FAPE 1F 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).^[3] Under State law, parents who have privately enrolled their

2F 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.^[4] In response, the district must review the request and "develop an [IESP] for 3F the student based on the student's individual needs in the same manner and with the same contents as an [IEP]".^[5] Further, the location district is responsible for 4F implementing the IESP services.^[6] The CSE must "assure that special education

5F programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared

In the instant matter, it is undisputed that the student is entitled to services pursuant to the IEP dated February 10, 2021 (IHO II). The DOE does not allege and did not submit any evidence to prove that the services were implemented. Therefore, it is undisputed that the DOE failed to implement the services set forth in the IESP. It is noted that the parent has located providers to implement the IESP at the providers’ contracted rates.

In opposition, the DOE asserts several arguments for the first time at the hearing. A presiding administrative tribunal may regulate the course of a hearing, including fixing the time for filing briefs and other documents.^[8] Unless expressly prohibited by 7F regulation, an IHO is provided with broad discretion, concerning the conduct of an impartial hearing, “so long as they accord each party a meaningful opportunity to exercise their rights during the impartial hearing,” and a “sufficient opportunity to prepare their respective cases and review evidence.”^[9] The sanctions imposed due to a 8F party’s failure to follow the IHO’s directives do not constitute a denial of due process.^[10] 9F

Further, a due process hearing is not a “summary gotcha game.”^[11] 10F

In this matter, the DOE has failed to avail itself of multiple opportunities to assert defenses as outlined in the Omnibus Interim Order. The DOE failed to serve a response to the DPC,^[12] a sufficiency challenge to the DPC, or a motion/memorandum

11F of law.^[13] The DOE’s attempt to raise defenses for the first time at the hearing, without

12F regard to whether there is any factual or meritorious basis appears to be for the sole purpose of relieving the DOE of its obligations under the law (IHO III). Therefore, any claims or defense asserted by the DOE for the first time at the DPH that could have 7 Educ. Law § 3602-c [2] [b] [1] raised in a DPR, is considered waived in accordance with the Omnibus Interim Order (IHO I).

Further, the DOE’s attempt to meet its burden with legal arguments in the form of boilerplate opening and closing statements without regard to the facts of this case is unavailing. Opening and closing statements are not evidence but are arguments that set forth what the parties intend to prove or claims to have proven. These conclusory statements are nothing more than legal arguments that present no evidentiary value for me to assess whether the DOE has sustained its burden. Further, the DOE has failed to present any evidence to establish an appropriate rate for services, therefore there is no question of fact regarding the rate proposed by the parent.

It is noted that the DOE has a duty to this student who has been classified as a student with a disability. While this is an adversarial proceeding, the DOE’s obligation to the student does not end by the filing of a DPC. 14 The DOE has proceeded without

13F regard to the particular facts and circumstances of this matter in what appears to be the sole goal of litigating and winning this case. Proceeding in this manner appears to be against the intent and spirit of the IDEA and State Law. Additionally, this is not the forum to argue for legislation, conduct criminal investigations, or argue ethics violations.

Regarding the DOE’s argument that Burlington/Carter analysis applies to this case. I decline to apply a Burlington/Carter analysis to this case commenced under State law. When reviewing rate dispute case, the State Review Office (SRO) has applied either the Burlington/Carter standard burden for tuition reimbursement cases 15 14F

14 see for example 8 NYCRR 200.5 [j][2] (requires the DOE to hold a resolution meeting within^[15] days of filing the DPC); 8 NYCRR 200.5 [i][4] (requires the DOE to file a due process response within 10 days of the DPC, addressing the allegations in the DPC if not done in a prior written notice); see also (pendency provisions) NY Educ. Law §§ 4404(4), 4410(7)(c); see Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 (E.D.N.Y., Oct. 30, 2008); see Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c) [discussing DOE’s burden to set forth a fact-specific inquiry regarding an appropriate compensatory education remedy that would place the student in the position that [they] would have been but for the denial of FAPE.] more toward the Burlington/Carter^[17] analysis. I find the compensatory education

16F standard more analogous as it appropriately places the burden of proof for all issues on the district in non-tuition cases as per the plain language of Education Law § 4044.

A Burlington/Carter tuition reimbursement scenario is distinguishable from Section 3602-c cases because Burlington/Carter involved parents who (1) rejected the school district’s IEP as inappropriate and (2) unilaterally placed their children in private schools. Neither factor is present in a Section 3602-c rate dispute. The parent’s § 3602-c claim does not arise from a disagreement concerning the appropriateness of the IESP program. Instead, the parent’s claim arises from the district’s failure to implement the agreed-upon IESP and provide the student with the mandated services.

Applying a Burlington/Carter analysis would force the parent into a predicament contrary to the purposes of the IDEA and New York state law. If the district fails to implement the IESP as it is required under the law, the parents must locate a provider, pay for the services, and then endure the evidentiary burden to cure the district’s default on their obligations under New York State law. This would result in the shifting of the DOE’s IESP obligations in the first instance and then shifts its burdens of proof in an administrative hearing to the parent. In effect, it would render Education Law § 3602-c and § 4404 meaningless. The district cannot just “do nothing” at all times causing an educational detriment to the student, and then do an “end run” around its obligation under the State and Federal Law.^[18] 17F

16 See Application of a Student with a Disability, Appeal No. 23-065 [To remedy a past deficient educational program (Reid v. Dist. of Columbia, 401 F.3d 516, 525 [D.C. Cir. 2005]), the tribunal may order compensatory educational services the student should have received in the first place” to provide the educational benefits that “likely would have accrued from special education services the school district should have supplied in the first place” (Id. at p.518). The district has the burden of proof, production, and persuasion regarding the appropriateness of a compensatory education award, but the parent must identify the specific remedy they seek so that the tribunal can craft an appropriate remedy for the years it is claimed the student was denied a FAPE (Education Law § 4404[1][c] and 8 NYCRR § 200.5 [i] [1] [v]). This is akin to a pleading requirement to provide the school district with fair notice of the claim (See generally, Rombach v. Change, 355 F.3d 164, 171 [2d Cir. 2004]). The tribunal may order that an award of services be placed in a bank to be used by a certain date to allow flexibility in the implementation (M.M. v. New York City Dep’t of Educ., 2017 U.S. Dist. LEXIS 47812, *25 [S.D.N.Y. 2017]}.

Applying Burlington/Carter also contradicts the legislative intent of Education Law § 3602-c and § 4404 because it would afford students in a general education setting in a nonpublic school fewer procedural and substantive rights than those receiving services while attending public school. The Court of Appeals has held that Education Law § 3602-c expressly “authorizes services to private school handicapped children and affords them an option of dual enrollment in public schools, so that they may enjoy equal access to the full array of specialized public-school programs.”^[19] To afford equal

18F access to services, the student must be afforded equal due process rights under Education Law § 4404. Therefore, applying Burlington/Carter creates unintended outcomes that defeat these legislative mandates – holding nonpublic school students to a higher burden of proof than public school students.

Regardless of which standard was to be applied by this tribunal, the DOE has failed to properly put forth a legal defense or factual claim. I have considered the DOE’s remaining arguments and find them to be without merit.

In light of the foregoing, the DOE has failed to establish that the student was provided a FAPE on an equitable basis for the 2023 -2024 school year.

ORDER

IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED

THAT:

1. The DOE shall fund the following services for the entirety of the 2023 -2024 school year with qualified provider(s) chosen by parent at the provider’s contracted rates:

a. Special Education Itinerant Teacher 5 x 2 hours per day weekly.

2. The DOE shall provide the parent with related service authorizations for the following services for the 2023-2024 school year:

a. Speech -language therapy 2x 30 minutes weekly

b. Occupational therapy- 2x 30 minutes per week

3. The DOE shall reimburse the Parent for the cost of the services described above within 30 days of submission of proof of payment.

4. The DOE shall pay the providers within 30 days of receipt of invoices for services rendered.

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

6. The DOE shall continue to provide any related services that the DOE is currently providing.

7. The parent’s request for an order of pendency is granted, without opposition. The DOE shall fund pendency to the providers of the parent’s choosing in accordance with the subject IEP (as per the services set forth above) retroactively to the date of the filing of the DPC on September 14, 2023.

Dated: 11/27/2023 Ordered:

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 9/14/23 6 pages

B. Individualized Education Program 2/10/21 19 pages

C. Letter Requesting Services 5/24/23 1 page

D. Contract 8/22/23 5 pages

E. Progress Report 11/1/23 5 pages

F. Certification 2/2/23 2 pages

G. Affidavit 11/2 6 pages

IHO EXHIBITS

I. Omnibus Interim Order Undated 8 pages IHO

II. DPH transcript IHO

Footnotes

[1] 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)

[2] 20 U.S.C. § 1400 (d)(1)(A)

[3] 20 U.S.C. § 1401[9]

[4] Educ. Law § 3602-c [2]

[5] Educ. Law§ 3602-c [2] [b] [l]

[6] Educ. Law § 3602-c [2] [a] to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district”. 7 6F

[8] State Administrative Procedure Act § 304 [4] [emphasis added]

[9] Application of a Student with Disability, 23-019, p.14 [internal citations omitted]

[10] Id.

[11] Jusino v. New York City Dep’t, 2016 U.S. Dist. LEXIS 203006, *17 [EDNY 2016], affirmed 700 Fed. Appx. 25 [2017]

[12] 8 NYCRR §200.5 [i] [4] [a] – [d]

[13] 8 NYCRR §200.5 [i] [3]

[15] See Application of the New York City Department of Education, Appeal No. 23-071 {The mechanics of decisions in tuition reimbursement and direct funding cases have evolved from the two United States Supreme Court cases of Sch. Comm. of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359 [1985] and Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 [1993], which have morphed into the “three-prong” analytical framework that has come to be known as the “Burlington/Carter” test or analysis. A tribunal must use this framework to determine that (1) the district’s proposed placement was inadequate or inappropriate, (2) the parent’s alternative private placement is appropriate to meet the student’s needs, and (3) the equitable considerations support the claim.} or the compensatory education analysis. 16 However, the SRO has recently leaned 15F State who are enrolled by their parents in private elementary schools and secondary schools in the school district served by a local educational agency, provision is made for the participation of those children in the program assisted or carried out under this subchapter by providing for such children special education and related services...”

[17] See Application of the New York City Department of Education, Appeal No. 23-071

[18] 20 U.S.C. § 1412 [a] [10] [A] [i] “To the extent consistent with the number and location of children with disabilities in the

[19] Board of Education v. Weider, 72 NY2d 174, 184 [1988] [emphasis added] Kinanda Murray, Esq.