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CASE NUMBER: - NYC: 261925
FINDINGS OF FACT AND DECISION
Student’s Name 1: 0F REDACTED (hereinafter “Student”)
Date of Birth: REDACTED
School District: REDACTED (hereinafter “The District”)
Hearing Requested by: Parent
Request Date/Date Complaint Filed: 09/18/2023
Date(s) of Hearing: 11/22/2023
Actual Record Closed Date: 11/28/2023
Date of Decision: 11/29/2023
Time Sensitive: No
Hearing Officer: Lauren M. Fazzino, Esq.
1 Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 22, 2023
For the Student:
REDACTED (hereinafter “Parent’s Representative”)
REDACTED (hereinafter “Provider Affiant”)
For the Department of Education:
REDACTED (“DOE’s Representative”)
INTRODUCTION
On September 18, 2023, Parent filed a Due Process Complaint (DPC), pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(f), and New York State Education Law § 4404(1) and § 3602-c(2)(b)(1), alleging that the Department of Education (DOE) failed to implement an individualized education service plan (IESP) for the 2023-2024 school year for Student. P-A. Parent seeks an order directing the DOE to implement Student’s most recent IESP using providers obtained by Parent at an enhanced rate.
On November 22, 2023, both parties appeared for a due process hearing. At the due process hearing:
The DOE did not seek to introduce witness testimony nor any other evidence. Tr. 6. Based upon the record, I find: 1) The DOE failed to implement an IESP for Student for the 2023-2024 school year, denying Student a free appropriate public education (FAPE) for the 2023-2024 school year; and, 2) The relief Parent seeks is appropriate.
PROCEDURAL HISTORY
A due process hearing was held on November 22, 2023. At the hearing, DOE presented no exhibits, no witnesses, declined to put on a case, and that Parent’s requested relief is appropriate. Tr.6.
Parent submitted eight exhibits into the record. Included in Parent’s evidence the DPC, Student’s IESP, from April 29, 2021, and an affidavit from the Service Provider.
JURISDICTION
The due process hearing was held, and 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 N.Y.C.R.R. Part 200.
FINDINGS OF FACT
Burden
Except for showing the appropriateness of a unilateral Parental placement, 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). DOE conceded that it did not offer Student a FAPE for the school year at issue. Tr.6.
Dual Enrollment
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. Educ. Law § 3602-c(2).[2] In response, the district must
1F
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)(1). Further, the location district is responsible for implementing the IESP services. 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). Standard for Relief and Compensatory Relief
The remedy for a school district’s failure to provide appropriate equitable services required under NY Educ. Law § 3602-c is like 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 (SRO 2020), 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) (citation omitted). 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.
In certain decisions, the SRO has utilized 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. See Application of the New York City Department of Education, Appeal No. 23-071 (SRO NY 2023). I respectfully decline to follow this analysis for the reasons outlined below.
First, I note that utilizing a Burlington/Carter analysis places a burden on the Parent. In due process hearings in New York, school districts have the burden of proof – including the burden of production and burden of persuasion – 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. NY Educ. Law § 4404(1)(c). 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. Clearly, the law regarding the burden in New York was meant to address cases in which a parent unilaterally places the student in a private special education school, not failure-to-implement IESP cases, and to require a Burlington/Carter analysis would shift the burden regarding “prong II” to the parent, which I do not believe is what NY Educ. Law § 4404(1)(c) intended.
Second, both Burlington and Carter are distinguishable from NY Educ. Law § 3602-c cases because they involved parents who rejected the school district’s IEP as inappropriate and unilaterally placed their children in other schools. Burlington and Carter are filled with references to parental rejections of the IEP and parental placements in schools. Unlike in Burlington and Carter, in this case, the Parent and the DOE agree that the services in the Student’s IESP were appropriate. The sole dispute between the parties regards the rate and quality of services provided, which the DOE characterized as equitable considerations. Tr. 7-8. Also, unlike in Burlington and Carter where the parents placed the students in private schools, in this case, the Parent hired a provider to provide special education services and did not hire a school to provide the services.[3] 2F
Third, applying a Burlington/Carter analysis forces the parent into a predicament that is contrary to the purposes of the IDEA and state law. If the district fails to implement the IESP, the Parent must either pay for the services the student should have been receiving, in which case the services are no longer “free,” or the Parent 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.” As such, applying Burlington/Carter creates unintended outcomes that defeat the purpose of the IDEA and NY Educ. Law § 3602-c.
Fourth, the SRO has been inconsistent in about whether to apply a Burlington/Carter analysis or compensatory analysis. For example, in Application of a Student with a Disability, Appeal No. No. 23-065, the SRO used a compensatory services analysis in a Section 3602-c case. (SRO 2023). As such, the SRO appears to be acknowledging that there is flexibility regarding the appropriate test to use.
Requested Relief
The relief requested by the Parent is equitable in nature, as Parent is asking me to devise an appropriate remedy to address the DOE’s failure to provide Student with a FAPE on an equitable basis for the 2023-2024 school year.
The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” Sch. Comm. of Town of Burlington, Mass., v. Dep’t of Educ. of Mass., 471 U.S.359, 374 (1985); Carter, 510 U.S. at 15-16. “When a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.” Boose v. District of Columbia, 786 F.3d 1054, 1056 (D.C. Cir. 2015) (citing Carter, 510 U.S. at 15-16). In actions brought under the IDEA alleging a denial of FAPE, “the court shall 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, 790 F.3d at 454.
An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P., v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child’s education.” Somoza v. New York City Dep’t of Educ., 538 F.3d 106, 109 N.2 (2d Cir. 2008). Courts “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. Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more — they must compensate.” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original). Compensatory education is a “replacement of educational services the child should have received in the first place,” and an award of compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid, 401 F.3d at 518, 524. Compensatory education awards can be used to remedy a school district’s substantive as well as its procedural violations of FAPE. Doe v. East Lyme, 790 F.3d at 456. Additionally, compensatory education awards may include reimbursement for out-of-pocket educational expenses paid 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 alternative. Foster v. Bd. of Educ. of the City of Chicago, 611 Fed. App’x 874, 878-79 (7th Cir. 2015); Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 277-78 (3d Cir. 2014).
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 and stated that it agreed that the services being sought by Parent would be appropriate if funded at a reasonable market rate.[4] 3F
Tr.7-8. DOE did not refer any service providers; the Parent was only able to find providers for the recommended services at an enhanced rate. (P-A). There is no evidence in the record that supports what a reasonable market rate for services is.
Findings
After a full review of the record generated at hearing, my findings of fact are as follows:
During the due process hearing the parties agreed (or, at the least, the DOE conceded): 1) Student is eligible to receive services through an IESP for the 2023-2024 school year. Tr.7; 2) The services described in the April 29, 2021, IESP are appropriate for Student. Tr.7-8; 3) DOE failed to implement these services for Student. Tr.8; and, 4) Parent’s proposed compensatory award is appropriate. Tr.8.
As to Student’s eligibility, Student and Parent reside in New York City and Student attends a Private School located in New York City. P-A. Student’s most recent IESP classifies Student as a student with a Speech and Language Impairment. P-B. Considering the foregoing, the DOE has failed to establish that Student was provided 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 the following services for the entirety of the 2023-2024 school year:
a. 5 periods of Special Education Teacher Support Services, English, direct service, group service by a provider of the Parent’s choosing at $200 an hour;
b. Speech-Language Therapy, English, Group, 2 x 30, enhanced rate;
c. Counseling Services, English, Individual, 1 x 30, enhanced rate;
2. If Parent paid for any of the services described above, DOE must reimburse Parent for the cost of the services described above upon submission of proof of payment.
3. The DOE shall directly fund the providers selected by Parent upon receipt of (1) invoices for services rendered, (2) session notes for each service (at least weekly session notes), and
(3) a sworn affidavit from each provider that the services described in the invoices were actually rendered.
4. To the extent such services, as described in Paragraph (1) above, are not provided to the student by 9/8/2025 any remaining services shall expire.
SO ORDERED.
DATED: 11/29/2023
/Lauren Fazzino/ (signed electronically)
Impartial Hearing Officer
Lauren Fazzino
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 B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
REDACTED
DOE EXHIBITS – N/A
IHO EXHIBITS
I. Cross Examination Transcript 11/22/2023 7 pages
II. Cross Examination Transcript 11/22/2023 3 pages
Footnotes
[2] DOE did not object to Parent’s claims based on the June 1 deadline, and I decline to dismiss Parent’s DPC on that basis. See Application of a Student with a Disability, SRO #23-018 (treating the June 1 deadline as an affirmative defense that the DOE waives if not raised at the hearing and suggesting that DOE may elect to provide services through an IESP regardless of whether the June 1 deadline is met); but see Application of a Student with a Disability, SRO #23-036 (suggesting that the June 1 deadline may be a jurisdictional issue).
[3] To be clear, NY Educ. Law § 3602-c cases concern students who are placed in private schools but those are not the “unilateral” special education placements contemplated by the IDEA. Instead, NY Educ. Law § 3602-c confers additional rights to students whose parents put them in non-public schools and ensures that they receive special education services while attending those schools.
[4] DOE failed to present any evidence on what a reasonable market rate is for the services Parent is seeking.