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FINDINGS OF FACT AND DECISION
Case Number: 261903
Student’s Name: REDACTED
District of Private
School Location: REDACTED
Impartial Hearing Officer: Hannah Schwager, Esq.
Date of Filing: September 18, 2023
Hearing Requested by: Parent
Date of Hearing: November 15, 2023
Record Close Date: November 24, 2023
Date of Decision: November 24, 2023
Names and Titles of Persons Who Appeared November 15, 2023
For the Student:
Attorney for Parent
Observer on behalf of Attorney for Parent
Educational Director, Provider Agency
For the Department of Education:
Consultant Hearing Representative Department of Education
BACKGROUND
The Parent, through counsel, filed a Due Process Complaint (“DPC”) on or about September 18, 2023. Parent alleges that the Department of Education (“DOE”) failed to implement an individualized education service plan (“IESP”) for the 2023-2024 school year. Parent is seeking the following as relief:
• An order directing the DOE to directly fund Special Education Teacher Support Services (“SETSS”), three hours per week provided by the Provider Agency at the Provider Agency’s stated rate; and
• An order directing the DOE to directly fund two, thirty-minute sessions of occupational therapy (“OT”) per week at a provider’s stated rate once an OT provider has been identified by the Parent.
In light of the foregoing and as more fully discussed below, I find that the DOE failed to implement the IESP, thereby denying the 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.
PROCEDURAL HISTORY
I was appointed on October 3, 2023. On November 15, 2023, both parties appeared virtually for a hearing. DOE provided two exhibits which were entered into the record with no objection from Parent.[1] Parent provided seven proposed exhibits A through G. DOE objected to the Parent’s exhibit C being entered into the record.[2] Parent withdrew the proposed exhibit.[3] The remaining proposed exhibits were entered into evidence without objection from DOE.[4] A complete list of all exhibits entered into the record at hearing is attached here as Appendix A. Parent presented the affidavit testimony of the Educational Director of the Provider Agency. DOE cross-examined the affiant. Both parties gave oral opening and closing statements on the record. Although only portions of the evidence are referenced in this decision, all the testimony and documents were reviewed in full.
FINDINGS OF FACT AND DECISION
After a full review of the record, I make the following findings of fact and determinations.
It is uncontested that the Student and Parent reside in New York City and the Student attended the Private School during the 2023-2024 school year. Furthermore, it is uncontested that
I. Burden
Except for in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing. [10]
II. Pendency
Parent requests that services outlined in the last agreed upon IESP, dated June 7, 2021, be implemented during the pendency of this proceeding.[11] These services are identical to those being requested as final relief by the Parent.[12] The DOE stated on the record that it did not have an objection the Parent’s pendency request.[13] Therefore, there being no dispute and no reason given to conclude otherwise, I find that the June [7], 2021 IESP constitutes the Student’s then-current placement, and I find that the Student is entitled to direct funding and/or reimbursement for the services outlined in the that IESP during the pendency of this proceeding.
III. FAPE
The IDEA provides that children with disabilities are entitled to a FAPE.[14] A FAPE consists of specialized education and related services designed to meet a student’s unique needs,
P. Ex. B-1
6 Id.
DOE Ex. 2
P. Ex. D-3, P. Ex. F ¶13 provided in conformity with a comprehensive written Individualized Education Program (IEP). [15] Under State law, 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.[16] In response, the district 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]."[17] Further, the location district is responsible for implementing the IESP services.[18] 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.” [19]
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.”[20] 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.”[21] 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. In the instant matter, the DOE had the obligation to provide services to the Student in conformity with the IESP.[22] It is undisputed that the Student is entitled to the services pursuant to the IESP dated June 7, 2021. The DOE does not allege and did not submit any evidence to prove that the services were implemented. Therefore, I find that the DOE failed to implement the services set forth in the IESP. In failing to do so, the DOE failed to provide the Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district and thereby denied the Student a FAPE for the 2023-2024 school year.
IV. Relief
The remedy for a school district’s failure to provide appropriate equitable services required under Education Law § 3602-c is similar to the remedy for a school district’s failure to provide appropriate services under the IDEA.[23] 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.”[24] Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so.[25] Although an award of damages is not available under the IDEA[26] “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” [27]
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.[28] 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. [29]
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.[30] Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers.[31] However, the analysis for equitable service rate cases have been treated in New York as a hybrid between unilateral placement theory cases,[32] and pure compensatory education cases.[33] Thus, in a case such as this, where the central issue is whether a third-party special education services provider selected by a parent should be remunerated with an enhanced rate over what the Department normally pays, the Parent’s evidence must be reviewed, consistent with my obligation and equitable authority to ensure that the remedy “be appropriate in light of the purpose of the Act.” [34] Appropriateness
The DOE argued that the SETSS services provided by the Provider Agency to the Student are not “specifically designed to meet the Student’s needs.”[35] DOE pointed to the lack of personal knowledge by the Educational Director, as well as the lack of specificity in the enrollment contract, and an alleged lack of proof of progress for the Student, as bases for this argument.[36] I disagree with the DOE’s argument and I do find that the SETSS services provided to the Student are appropriate.
Parent’s witness testified credibly that the Provider Agency tailors its services to the unique needs of the Student. For example, the Educational Director testified that during the intake process, the Provider Agency reviews “prospective student evaluations, progress reports, and other clinical materials to determine whether our agency can provide appropriate services. After conducting this extensive review, I assign an appropriate educator to the Student. I ensure that each teacher assigned has the expertise needed for the specific student.”[37] In its summation, the DOE argued that the Educational Director did not know whether the SETSS provider was a full-time employee or a subcontractor of the Provider Agency and that this showed that the evidence “is insufficient to establish that the unilateral program is specifically designed to meet the student’s needs.”[38] I do not credit this argument.
Furthermore, the Parent provided evidence that the Student was making progress while enrolled with the Provider Agency.[39] The DOE argued that the Educational Director could not identify the Student’s “baseline” when discussing the Student’s progress, and therefore, could not show that meaningful progress had been made.[40] However, the Educational Director testified credibly that a review of the Student’s profile is conducted upon enrollment into the program, which would suggest that the Provider Agency has a baseline for the Student in terms of the level of the Student’s ability when they begin receiving services from the Provider Agency. [41]
Finally, the DOE suggests that the enrollment contract does not include the type or duration of the services to be rendered to the Student, and that therefore the credibility of the enrollment contract is diminished.[42] It is unclear what the basis for this position is, but I find that the Educational Director testified credibly that the Provider Agency discusses with the Parent the type and duration of services to be provided to a student, and that the Parent is aware of the services that will be administered to the Student, as well as the rate for such services. [43] Reasonable Rate
The DOE did not offer any evidence of a reasonable rate for SETSS. I find that the Educational Director testified credibly about the basis for the rate charged by the Provider Agency. Accordingly, there is no basis for a finding that the rate charged by Provider Agency is excessive.
Equities
Finally, there is no evidence or claim made by the DOE asserting or suggesting that the Parent failed to cooperate with the DOE or interfered in any manner with the DOE’s obligation to provide the 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 failed to provide the Student with a FAPE for the 2023-2024 school year.
2) Student is entitled to services during the pendency of this proceeding as provided for in the IESP dated June 7. 2021. It is hereby ordered that the New York City Department of Education shall reimburse and/or directly fund the following services, paid to the provider of the Parent’s choosing at the provider’s stated rate, during the pendency of this matter, retroactive to September 18, 2023, the filing date of the DPC:
a. Three (3) periods of SETSS per week b. Two (2) thirty-minute session of OT per week
3) The DOE shall reimburse and/or directly fund the following services for the 2023-2024 school year within 30 days of submission of an affidavit from the Provider stating the dates of services and total hours provided:
a. Three (3) periods of SETSS per week, to be provided by Provider Agency, at a rate not to exceed $200.00 per hour.
b. Two (2) 30-minute Occupational Therapy sessions per week, by a provider of the Parent’s choosing at that provider’s stated rate.
Dated: November 24, 2023
Hannah Schwager, Esq.
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
DISTRICT EVIDENCE
1. Parenting Place/Placement Letter 4/3/2023 4 pages DOE
2. Parent 6-1 Letter 5/8/2023 1 page DOE
PARENT EVIDENCE
A. Impartial Hearing Request 9/18/2023 6 pages
B. IESP 6/7/2021 12 pages
D. Contract 8/22/2023 4 pages
E. Progress Report 10/31/2023 6 pages
F. Affidavit of Educational Director 11/1/2023 4 pages
G. Certification of SETSS Provider 8/30/2023 2 pages
Footnotes
[1] Transcript (Tr.) 5
[2] Tr. 6
[3] Tr. 8
[4] Tr. 8 the Private School is located within the geographic boundaries of the DOE. The Student is 10- years old and is classified has having an “other health impairment.” 5 The record shows that the Student’s most recent IESP had an implementation date of September 7, 2021. 6 That IESP recommended the SETSS and OT services that the Parent requests as relief in this action. 7 On May 8, 2023, the Parent alerted the DOE that the Student would be placed in a non-public school and that the Parent wanted the Student to continue to receive special education services for the 2023- 2024 school year. 8 In August 2023, the Parent contracted with the Provider Agency to have SETSS provided to the Student for the 2023-2024 school year. 9 The Parent did not challenge the content of the IESP, merely the delivery of the recommended services. Further, it is uncontested that the district did not implement or provide those services.
[7] P. Ex. B-9
[10] 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).
[11] Tr. 9-10; P. Ex. B
[12] Id.
[13] Tr. 9
[14] 20 U.S.C. § 1400 (d)(1)(A)
[15] 20 U.S.C. § 1401(9)
[16] Educ. Law § 3602-c (2)
[17] Educ. Law§ 3602-c (2) (b) (l)
[18] Educ. Law § 3602-c (2)(a)
[19] Educ. Law § 3602-c (2)(b)(1)
[20] Educ. Law § 3602-c(2)(a)
[21] Educ. Law § 3602-c(2)(b)(1)
[22] Educ. Law§ 3602-c(2)(a), (b)(l)
[23] 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).
[24] Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015)) (citation omitted).
[25] Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993).
[26] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002).
[27] Doe v. East Lyme, 790 F.3d at 454.
[28] See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
[29] P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008). See also Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); 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").
[30] Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-79 (7th Cir. 2015) (citing cases).
[31] 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).
[32] See, e.g., Application of a Student with a Disability, Appeal No. 20-115.
[33] See, e.g., Foster v. Bd. of Educ. Of the City of Chicago, 611 Fed. App.’x 874, 878-79 (7th Cir. 2015). (compensatory education includes reimbursement for out-out-pocket educational expenses); see also P.V. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (compensatory education is an appropriate remedy for a denial of FAPE).
[34] East Lyme Bd. of Educ., 790 F.3d at 454 (citation omitted).
[35] Tr. 34
[36] Tr. 33-34
[37] P. Ex. F¶6
[38] Tr.34
[39] P. Ex. E
[40] Tr. 34
[41] P. Ex. F¶6
[42] Tr. 34-35
[43] Tr. 18-19