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FINDINGS OF FACT AND DECISION
Case Number: 261976
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 26, 2023
Date of Decision: November 26, 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”), two hours per week, provided by the Provider Agency at the Provider Agency’s stated rate
• An order directing the DOE to directly fund two thirty-minute sessions of speech-language therapy (“SLT”) per week (one session individual and one session in a group), provided by a provider of the Parent’s choosing at that provider’s stated rate.
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 one proposed exhibit that was entered into the record without objection from Parent.[1] Parent provided eight proposed exhibits, A through H. DOE objected to the Parent’s proposed exhibit C being entered into the record.[2] I allowed the DOE to state the basis for the objection and gave the Parent an opportunity to respond.[3] I overruled the objection and entered Parent’s exhibit C into evidence.[4] The remaining proposed exhibits were entered into evidence without objection from DOE.[5] 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 generated at hearing, I make the following findings of fact and determinations.
The Student is REDACTED years-old and is classified as having a speech or language impairment.[6] The last IESP developed for the Student was created in December 2020, with an implementation date of January 11, 2021. That IESP recommended the services that the Parent requests as relief in this action.[7] On May 24, 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 services 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 services were recommended for the student in their IESP, and the district did not implement or provide those services for the 2023-2024 school year.
I. Burden
Except for in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing. [10]
II. Credibility
DOE raised an objection to Parent’s exhibit C, an email from Parent counsel to the committee on special education requesting special education services be provided to the Student for the 2023-2024 school year. DOE argued that this exhibit should be excluded due to the exhibit not being the “proper form” and lacking identifying markers or headers.[11] I overruled the objection and find this exhibit to be credible. New York Education Law §3602-c does not prevent a representative from sending a notice to the DOE on behalf of their client, nor do the regulations mandate the form that such notification must take.
III. Pendency
Parent requests that services outlined in the last agreed upon IESP be implemented during the pendency of this proceeding.[12] These services are identical to those being requested as final relief by the Parent. On the record, the DOE did not object to the Parent’s pendency request. [13] Therefore, there being no dispute and no reason given to conclude otherwise, I find that the December 21, 2020 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.
IV. 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, 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, Education Law §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 this matter, the DOE had the obligation to provide services to the Student in conformity with the IESP.[22] 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 relevant 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.
V. 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.
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.[29] Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers.[30] However, the analysis for so-called “equitable service rate” cases have been treated in New York as a hybrid between unilateral placement theory cases,[31] and pure compensatory education cases.[32] 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.” [33]
Appropriateness
The DOE broadly argued that the SETSS services provided by the Provider Agency to the Student were not appropriate.[34] DOE contends that therefore it should not be ordered to pay for the provision of such services. I do not agree, and I find that the services provided to the Student by the Provider Agency are appropriate to the educational needs of the Student.
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.”[35] In addition, the Educational Director testified that the Student is evaluated by the Provider Agency within thirty days of enrollment. [36] Furthermore, the Parent provided evidence that the Student was making meaningful progress while enrolled with the Provider Agency. [37]
Reasonable Rate
The district did not explicitly express its objection to the rate charged by Provider Agency, and 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. [38] Accordingly, there is no basis for a finding that the rate charged by Provider Agency is excessive. Group v. Individual SLT
Parent is seeking, inter alia, direct funding for two thirty-minute sessions of SLT per week. Specifically, Parent is seeking that the Student receive funding for one individual SLT session and one group SLT session per week.[39] It is unclear from the record whether the Provider Agency provides the SLT to the Student in a group or individually However, the testimony of the Educational Director shows that the Provider Agency provides the Student two thirty-minute sessions and bills $245.00 per hour. [40]
A review of the Student’s IESP shows that, although there is a recommendation for group SLT, the IESP does not detail why the group therapy is warranted over the individualized. Nor does the IESP contain annual goals or concerns related to the Student’s social interactions with peers, such that the Provider would have to consider having the Student in a group setting in order to work on such social goals.[41] Moreover, Parent “may be afforded some leeway in locating services for the student, since identifying an appropriate group setting for the student to receive [unilaterally provided services] in the private school may not have been possible and the district could have avoided this problem by implementing the recommendation for direct group [services].”[42] Therefore, I find the provision of two individual sessions to be appropriate relief in this matter.
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 December 21, 2020. 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. Two (2) periods of SETSS per week b. Two (2) thirty-minute sessions of SLT per week
3) The DOE shall reimburse and/or directly fund the following services for the 2023-2024 school year, less any amount provided as pendency, within 30 days of submission of an affidavit from the Provider stating the dates of services and total hours provided:
a. Two (2) periods of SETSS per week, to be provided by Provider Agency, at a rate not to exceed $200.00 per hour.
b. Two (2) thirty-minute sessions of SLT per week, to be provided by Provider Agency, at a rate not to exceed $245.00 per hour.
Dated: November 26, 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. Parent Notice of Intent/Parentally Placed 4/3/2023 4 pages DOE
PARENT EVIDENCE
A. Impartial Hearing Request 9/18/2023 6 pages
B. IESP 12/21/2020 10 pages
C. Parent’s Request for Services 5/24/2023 1 page
D. Contract 8/22/2023 4 pages
E. Progress Report 11/2/2023 9 pages
F. Affidavit of Educational Director 11/3/2023 5 pages
G. Certification of SETSS Provider Undated 1 page
H. Certification of Speech-Language Therapist Undated 1 page
Footnotes
[1] Transcript (Tr.) 5
[2] Tr. 5-6
[3] Id.
[4] Tr. 6
[5] Tr. 7 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 the Private School is located within the geographic boundaries of the DOE.
[6] P. Ex. B-1
[7] P. Ex. B-7
[8] P. Ex. C
[9] P. Ex. D-3, P. Ex. F ¶13
[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. 5-6
[12] Tr. 9; P. Ex. A, P. Ex. B
[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] Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-79 (7th Cir. 2015) (citing cases).
[30] 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).
[31] See, e.g., Application of a Student with a Disability, Appeal No. 20-115.
[32] 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).
[33] East Lyme Bd. of Educ., 790 F.3d at 454 (citation omitted).
[34] Tr. 22
[35] P. Ex. F¶6
[36] Tr. 17
[37] P. Ex. E
[38] Tr. 35-37; P. Ex. F ¶¶ 9, 10 & 11
[39] P. Ex. A, P. Ex. B-7
[40] P. Ex. F¶18
[41] SRO 23-033 at 12-13
[42] Id.