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CASE NUMBER: 615666 NYC: 262553
FINDINGS OF FACT AND DECISION
Case Number: 262553
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., [REDACTED]
Impartial Hearing Officer: Mercedes Cesaratto, Esq.
Date of Filing: September 21, 2023
Hearing Requested by: Parent
Date of Hearing: November 21, 2023
Record Close Date: December 27, 2023
Date of Decision: December 28, 2023
Time Sensitive: No
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 21, 2023
For the Parent and Student:
[REDACTED], Esq., Representative
[REDACTED], Esq., Representative — DOE
BACKGROUND
On September 21, 2023, the Parent, through counsel, filed a Due Process Complaint (DPC).[1] In the DPC, the Parent alleged, among other things, that the Department of Education (DOE/District) failed to provide Student with special education services on an equitable basis for the 2023-2024 school year by failing to provide the Student with an appropriate program, and also by failing to implement the Special Education Teacher Support Services (SETSS), that were mandated under the Student’s most recent Individualized Education Services Program (IESP) dated November 14, 2022.[2] DOE stated there was a recent IESP dated November 20, 2023 which recommended the same services and program as the November 14, 2022 IESP, however, the DOE did not submit this IESP. Parent submitted a supplemental affidavit as part of Parent’s initial affidavit, indicating the DOE has failed to implement any special educational services before or after the November 20, 2023 IESP referenced by the DOE. [3]
As relief, the Parent requested an order finding that DOE failed to provide Student with special education services on an equitable basis for the 2023-2024 10-month school year and directing the DOE to fund: SETSS, three (3) hours per week, direct/group service. The Parent also requested a pendency order which was resolved pursuant to a DOE signed pendency order dated October 26, 2023 basing pendency on the IESP dated November 14, 2022. [4]
I was appointed Impartial Hearing Officer (IHO) on October 5, 2023. An omnibus settlement conference with the representatives of the parties was held on October 26, 2023. Per the Student’s digital file in the Impartial Hearing System, DOE did not hold a resolution meeting as required by statute. [5]
I adjudicated a due process hearing on November 21, 2023. At the hearing, DOE waived its opening statement and offered no evidence. Parent offered exhibits A through H with no objection from the DOE. I entered the Parent’s exhibits A through H into the record. Parent waived their opening statement. During the merits hearing, the DOE conceded the District failed to provide the Student with a FAPE on an equitable basis for the 2023-24 school year. The DOE conceded the Student was entitled to the program and related services recommended in the Student’s IESP dated November 14, 2022 and the more recent November 20, 2023, which provides for three (3) periods per week of SETSS. The DOE conceded the District failed to implement the program/related services for the 2023-2024 school year.[6] Parent was unable to secure a SETSS provider or a related service provider to work with the Student at the rate offered by the DOE. The Parent was able to secure a SETSS provider at a rate of $125.00 per hour.[7] The DOE argued during closing statement that the District should determine market rate.[8] The Parent’s attorney requested the District to fund the SETSS at the rate of $125.00 per hour.
ANALYSIS
The IDEA provides that children with disabilities are entitled to a FAPE,[9] which 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).[10] A school district offers a student a FAPE when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) develops an IEP through the IDEA’s procedures that is reasonably calculated to enable the student to receive educational benefits.[11] In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” [12]
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.[13] The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools.[14] However, under State law, parents who privately enroll their child with a disability in a nonpublic school may seek educational “services” 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.[15] Then, the district of location’s CSE 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].” [16]
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.”[17] A district cannot be absolved of its statutory obligation to implement mandated services for the student through inactivity.[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] 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.
Under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.[20] However, under State law, the burden of proof has been placed 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. [21]
In the due process complaint, the Parent sets forth allegations that DOE was obligated but failed to develop an IESP and deliver services to the Student for the 2023-2024 school year.[22] The district failed to present evidence to counter such allegations and thus, failed to meet its burden of production and persuasion. [23]
This case does not involve tuition reimbursement and therefore does not trigger a Burlington/Carter analysis.[24] Here, the Parent instead alleges that DOE never provided the Student with SETSS that were mandated in the Student’s IESP.[25] The District conceded the Student was entitled to receive these services however the District failed to implement the program and services recommended for the Student.[26] The DOE conceded the District failed to provide the Student with a FAPE on an equitable basis.[27] The DOE also conceded pendency lies in the IESP dated November 14, 2022. [28]
On this record, I find that DOE failed to provide the Student with special education services on an equitable basis for the 2023-2024 for the 10-month school year.
The remedy for DOE’s failure to provide appropriate equitable services required under Education Law § 3602-c is similar to the remedy for the district’s failure to provide appropriate services under the IDEA.[29] “In any action brought under the IDEA, the court ‘shall grant such relief as the court determines is appropriate.’ The only restriction is that ‘the relief is to be appropriate in light of the purpose of the Act.’ [E]quitable considerations are relevant in fashioning relief and the court enjoys broad discretion in so doing.”[30] Compensatory education and services are equitable remedies tailored to meet the unique circumstances of each case.[31] An award must be designed to “make up” for past denials of FAPE and place the student in the position they would have had if the district complied with its obligations under the IDEA.[32] “[T]he inquiry must be fact-specific, and [in order] to accomplish IDEA’s purposes, the ultimate award 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.”[33] The compensation may take the form of supplemental special education or in related services, with the goal of fashioning appropriate relief for a denial of a FAPE. [34]
Here, the Parent agrees with the appropriateness of the services mandated by the Student’s IESP and wants them implemented. DOE did not dispute the following: (i) the Student was entitled to special education services; (ii) the Student’s last IESP was developed on November 20, 2023; and
(iii) the DOE did not implement the recommendations contained in the IESP. Nor did DOE offer evidence of an appropriate market rate for the program and services. Similarly, DOE provided no evidence that the Parent behaved unreasonably or that equitable considerations otherwise disfavored the Parent. I find that the Student is entitled to receive the services mandated by the IESP dated November 20, 2023 and the DOE must either reimburse the Parent or directly fund the properly licensed provider of the Parent’s choosing at the provider’s customary rate.
I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and any of the Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDER
Based upon the above Findings of Fact, IT IS HEREBY:
1. FURTHER ORDERED that DOE shall directly fund and/or reimburse the Parent at the customary rate(s) charged by the properly licensed provider(s) of Parent’s choosing, within 30 days of the presentation of a valid contract between Parent and the chosen provider(s), and an affidavit indicating the date(s) of the service and the provider’s name, license and/or certification, if applicable, for the following services and rates:
a. SETSS, three (3) periods per week, direct/group service, in[REDACTED], at the provider’s customary rate, not to exceed $125.00 per hour;
2. DOE shall fund or reimburse these services for the 10-month, 2023-2024 school year or until DOE provides the services, whichever is sooner.
SO ORDERED.
Dated: December 28, 2023 /s/ Mercedes Cesaratto
Mercedes Cesaratto
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of the 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
Exhibit Title Date Pages 1 None 2 3
PARENT EVIDENCE
Exhibit Title Date Pages A Request for Due Process Proceeding and Notice of 9/21/2023 5
Appearance
B Due Process Response 10/20/2023 3
C IESP 11/14/2022 8
D 2023-2024 SETSS Contract 9/18/2023 2
E Affidavit of [REDACTED] (Parent) and 11/8/2023 2
Supplemental Affidavit 11/24/2023 1
F Affidavit of [REDACTED] (Controller, [REDACTED]) 11/13/2023 2
G Certificate Information for SETSS Provider 11/6/2023 1
[REDACTED]
H Letter of Intent to parentally place student 5/17/2023 4
IHO EXHIBITS
Exhibit Title Date Pages
None
Footnotes
[1] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate. Ex. P-B
[2] Ex. P-B.
[3] Ex. P-E supplemental affidavit dated 11/24/2023.
[4] Tr. 7.
[5] 34 CFR 300.510 (a), 8 NYCRR 200.5(j)(2)(i).
[6] Tr. 15-16, The DOE clarified the District does not know whether the DOE is implementing the services recommended in the IESP dated 11/20/2023..
[7] Ex. P-D.
[8] Tr.11.
[9] 20 U.S.C. § 1400 (d)(1)(A).
[10] 20 U.S.C. § 1401(9).
[11] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[12] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[13] 20 U.S.C. § 1412(a)(l)(A); Educ. Law § 4402(2)(a), (b)(2).
[14] See 34 CFR 300.137(a).
[15] Educ. Law § 3602-c(2).
[16] Educ. Law § 3602-c(2)(b)(l).
[17] Educ. Law § 3602-c(2)(a).
[18] Educ. Law § 3602-c(2)(a), (b)(l).
[19] Educ. Law § 3602-c(2)(b)(1).
[20] Schaffer v. Weast, 546 U.S. 49, 59-62 (2005) (finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not).
[21] Educ. Law § 4404[1][c]; see Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F. v. New York City Dep't of Educ., 746 F.3d 68, 76 [2d Cir. 2014]; R.E., 694 F.3d at 184-85.
[22] Ex. P-A.
[23] DOE argued there was a recent IESP dated 11/20/2023 but did not produce the IESP nor present evidence the DOE had implemented any of the recommended services in this IESP which recommended the same 3 periods of SETSS recommended in the IESP dated 11/14/2022.
[24] Furthermore, when Burlington/Carter does apply, DOE bears the burden to show that the equities do not favor the parent (i.e., Prong 3).
[25] Ex. P-E dated 11/8/2023 and parent’s supplemental affidavit dated 11/24/2023 .
[26] Tr. 7, 15-16.
[27] Tr. 6-7.
[28] Tr.7.
[29] 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).
[30] Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citations omitted).
[31] See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
[32] P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008).
[33] Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that compensatory awards should place children in the position they would have been in but for the violation of the Act).
[34] See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 (2d Cir. 2014); see also Newington, 546 F.3d at 123.