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CASE NUMBER NYC: 262056
FINDINGS OF FACT AND DECISION
Student’s Name1: REDACTED (“Student”)
Date of Birth: REDACTED
School District: NYC
Hearing Requested by: Parent
Request Date/Date Complaint Filed: 9/18/2023
Date(s) of Hearing: 11/22/2023
Actual Record Closed Date: 12/2/2023
Date of Decision: 12/2/2023
Hearing Officer: Teril Holston, 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, Parent Representative
REDACTED, Intern
For the Department of Education:
REDACTED, Consultant Impartial Hearing Representative
INTRODUCTION
This matter comes before the undersigned Hearing Officer at the request of Petitioner, the parent of the student, a REDACTED -year-old school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”); New York State Education Law; and the New York State regulations.
On September 18, 2023, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) alleging that the District failed to provide the student with a Free and Appropriate Public Education (“FAPE”) for the 2023-2024 school year, in that the District failed to provide the student with special education services on an equitable basis (P-A)2.
As relief, Parents requested an order finding that the DOE failed to provide the Student with special education services on an equitable basis for the 2023-2024 10-month school year, and directing the DOE to fund SETSS, Group Service, 4 periods3 per week; Speech-Language Therapy, Individual Service, two 30-minute sessions per week; Occupational Therapy, Individual Service, two 30-minute sessions per week; and Counseling Services, one 30-minute session per week.[4] Parents also requested pendency.[5]
On October 3, 2023, the undersigned was appointed to conduct an impartial hearing and provided the parties with an Interim Order containing directives and rules to govern the proceedings (IHO-I). A settlement conference with the representatives of the parties was held on October 23, 2023.[6]
On November [3], 2023, a status conference with the representatives of the parties was held. Subsequently, the parties were provided with a summary and order (IHO-II)
On November 22, 2023, a virtual impartial hearing on the merits of the DPC commenced and concluded. At the hearing, the District’s representative failed to submit any documents into evidence or 2 Exhibits shall be referred to as follows: “P” for Parent Exhibit; “DOE” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.
call any witnesses. The Parent, through their representative, submitted five documents into evidence and presented one witness.
At the hearing, the parties did not agree to an operative placement for the student. The parent submitted an FOFD, dated October 6, 2022 (P-B). The District did not submit documentation in support of an operative placement but referenced a document not included in the hearing record (Transcript, pg. 6). The District further conceded that the record does not demonstrate that the DOE implemented the recommendations contained in the student’s operative placement (Transcript, page 6).
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “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 § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Burden of Proof
As a preliminary matter, the burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). Therefore, I find that the District has the burden of proof to demonstrate it offered the student a FAPE.
B. FAPE
The Individuals with Disability Education Act (“IDEA”) is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE.[7] A “free4F appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.”[8] In order to demonstrate that a FAPE is being provided, the school district must show
5F “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.”[9] The student's recommended program must also be provided in the least
6F restrictive environment with non-disabled peers.[10] 7F
Two purposes of the IDEA are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.[11] “Adequate compliance with the 8F procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.”[12] 9F
If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits [13]. 10F
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE [14]. A school district offers a FAPE "by 1F providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" [15]. 12F
Special education services must be provided by the district in conformity with the student's IEP [16]. 13F
A denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way and thereby precludes the student from the opportunity to receive educational benefits [17].
14F
However, school districts are not required to "maximize" the potential of students with disabilities [18], but must provide "an IEP that is 'likely to produce progress, not regression,' and ... affords
15F the student with an opportunity greater than mere 'trivial advancement'" [19]. The IEP must be "reasonably
16F calculated to provide some 'meaningful' benefit" [20]. 17F
C. Privately Placed/ Homeschooled Students
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412(a)(1)(A); Educ. Law § 4402(2)(a), (b)(2)). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137(a)). Under NY State law, parents of a disabled student who have privately placed their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the district of location 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.[21]
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."[22]
In these instances, the Committee on Special Education (“CSE”) of the district where the nonpublic school is located must review the request for services and “develop an individualized education service program [“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)). The CSE “shall 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” (id.). 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. The DOE has the obligation to provide services to the student in conformity with the IESP (Educ. Law§ 3602-c(2)(a), (b)(l).
D. Waiver Education Law § 3602-c, requires that parents who seek to obtain educational services for students with disabilities who are parentally placed in private school to file a written request for such services 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][a], [2-c]). The SRO has found that “the issue fits more with other affirmative defenses…which are required to be raised at the initial hearing,”[23] The District can, however, waive this affirmative defense procedurally or substantively.
Procedurally, the undersigned IHO issued interim orders to govern the conduct of this due process hearing. Here, the District failed to raise any affirmative defenses in compliance with the written orders, and therefore, procedurally waived any affirmative defenses. Additionally, in this matter, the parent provided a notification to the District before June 1, 2023 (P-C).
Further, the SRO has adapted the “clear and unmistakable” waiver standard found in N.L.R.B. v. New York. Tele. Co., 930 F.2d 1009 (2d Cir. 1991).[24] Such a waiver can be implied, if a party is aware of their rights, by express language, agreement or conduct of the parties (id.).
ANALYSIS
Accordingly, in this case, the DOE failed to meet its burden. The District presented no persuasive evidence or witnesses to document that it offered the student a FAPE in providing the recommended services. While an FOFD was submitted into the record, a review of the same offers no explanation as to how the services would be provided to the student for the current school year. Per the District’s concession, the equitable services were not provided to the student. Even more, following receipt of parent’s request for equitable services prior to June 1, 2023, the District failed to provide any evidence that it reconvened the CSE for the 2023-2024 school year and conducted an evaluation of the student.
As relief, the parent requests funding for equitable services at an enhance rate for the 2023-2024 school year. Having determined that the district failed to meet its burden to prove that it provided the student a FAPE or services on an equitable basis for the 10-month school year, the next issue to decide is whether the equitable services the parent obtained for the student were appropriate to address the student's needs.
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim.25 In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA.26 Generally, a remedy for a deficiency in equitable services under State law should be similar to a remedy for deficient services under the IDEA.
Here, the student’s need for the equitable services “is not reasonably under dispute” and the only question is whether the services “obtained by the parent in a belated attempt to implement the district’s responsibility was appropriate.”27 There is no actual dispute as to the appropriateness of the equitable services, as the parent’s requested services are identical to those recommended by the District in the operative placement. Therefore, the District’s argument that the services sought by the parent are inappropriate is without merit.
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.28 Courts have determined that in IDEA claims, IHOs have the discretion to grant appropriate relief.[29] The only restriction is that “the relief is to be appropriate in light of the purpose of the Act.”[30] “Equitable considerations are relevant in fashioning relief and the court enjoys broad discretion in so doing.”[31] An award of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies have been deemed appropriate.[32]
25 Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369- 70 [1985]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009] 26 471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005] 27
SRO 23-032
28 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).
The District 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 student 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 District representative failed to do so.
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 current school year. Furthermore, the DOE declined to present any evidence whatsoever as to what would constitute a reasonable market rate. Rather, the only evidence of any rate whatsoever is reported in the parent contract. Absent evidence to suggest otherwise, I find that the rates are not unreasonable. After considering the representations of the parties and the evidence accepted into the record, I find that the student is entitled to the services described in the operative placement and that it is the DOE’s responsibility, as the district of location, to provide same. Therefore, the DOE must begin providing the Student with the recommended services, and must fund the provision of such services until such the DOE implements the operative placement.
For the school year at issue, the 10-month school year is based on “180 instructional days” from September to June.[33] Therefore, the academic school year is 36 weeks, not 40 weeks. Other than adjusting the 10-month school year from 40 weeks to 36 weeks, I see no other reason to disturb the recommendations of the District.
Other than the reasons provided for adjusting the remedy, the undersigned does not find any other equitable factors applicable.
The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED, the DOE failed to provide Student a FAPE for the 2023-2024 school year.
IT IS HEREBY ORDERED, until such time the District commences implementation of the operative IESP or a new IESP is developed and such services are being implemented, the New York City Department of Education is directed, upon submission of invoices for services rendered and a valid contract between parent and provider, to fund the following special education services for the 36-week 2023-2024 school year, by issuing payment directly to the providers within thirty-five (35) days of the submission of the supporting documentation:
1. Special Education Teacher Support Services (“SETSS”), Direct Service, Individual Service, 4 periods per week totaling 144 periods; to be provided by a NY state certified special education teacher, at the parent’s contracted rate of $200 per hour.
2. Speech Language Therapy, Individual Service, two 30-minute sessions per week totaling 36 hours; to be provided by a licensed speech pathologist or other certified speech therapist, at reasonable market rates consistent with rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office for comparable services within the six (6) month period prior to the date of this Order.
3. Occupational Therapy, Individual Service, two 30-minute sessions per week totaling 36 hours; to be provided by a licensed speech pathologist or other certified speech therapist, at reasonable market rates consistent with rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office for comparable services within the six (6) month period prior to the date of this Order.
4. Counseling Services, one 30-minute session per week totaling 18 hours, to be provided by a qualified mental health provider, at reasonable market rates consistent with rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office for comparable services within the six (6) month period prior to the date of this Order.
DATED: SO, ORDERED
12/2/2023 /s/ Teril Holston
Teril Holston, Esq., IHO
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.
IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD
I, Teril Holston, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.
DATED: CERTIFIED BY
12/2/2023 /s/ Teril Holston
Teril Holston, Esq., IHO
APPENDIX A – REDACTION IDENTIFICATION PAGE
REDACTED
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Exh. Date Name of Document Pages DPC 9/18/2023 6 pages
B. FOFD 10/6/2022 10 pages
C. Request for Services 5/24/2023 1 page
D. Contract 8/22/2023 4 pages
E. Progress Report 11/9/2023 8 pages
F. Dates Provider Certification Various 2 pages
G. Provider Affidavit 11/13/2023 4 pages
DOE’S EXHIBITS
Exh. Date Name of Document Pages
IHO’S EXHIBITS
Exh. Date Name of Document Pages
IHO-I 10/4/2023 Interim Order 3
IHO-II 11/3/2023 Interim Order 4
IHO-III 11/2/2023 Pendency Order 2
Footnotes
[3] I deem a “period” to equal one hour of time.
[4] While the parent’s due process complaint requests Speech, OT, and Counseling Services, and the contract submitted into evidence includes OT, the Provider’s affidavit failed to mention Speech, OT, or counseling services, identify the speech, OT, or counseling provider, or discuss the providers’ credentials.
[5] On October 13, 2023, I issued an Order on Pendency (IHO Ex. III).
[6] Settlement conferences are conducted by an OATH IHO not assigned to the case whose purpose is to aid the parties in exploring and facilitating a resolution to the DPC. The content of the conferences is confidential, and the parties are directed to attend with knowledge of the dispute and settlement authority should there be an interest in resolution. Settlement Conferences are not recorded and are not part of the record.
[7] See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005).
[8] Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).
[9] See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206.
[10] See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).
[11] 20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, 458 U.S. at 206-07.
[12] Rowley at 206
[13] 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[14] 20 U.S.C. § 1415[f][3][E][i].
[15] Rowley, 458 U.S. at 203.
[16] 20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; 20 U.S.C. § 1414[d]; 34 CFR 300.320.
[17] T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *13 [E.D.N.Y. Sept. 2, 2011]; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821-22 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000].
[18] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.
[19] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[20] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[21] Educ. Law § 3602-c (2)
[22] Educ. Law § 3602-c(2)(a)
[23] SRO 23-032
[24] Appeal of a Student with a Disability 18-088
[29] 20 U.S.C. § 1415 [i][2][C][iii]
[30] Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985)
[31] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).
[32] Burlington at 369; see Polera v Board of Education, 288 F.3d 478, 486 (2d Cir. 2002).
[33] SRO 23-019