New York City Department of Education, Impartial Hearing Decision

Case Number: 617344 - 264115

FINDINGS OF FACT AND DECISION

Case Number: 264115

Student’s Name: REDACTED District of Private School Location: REDACTED

Impartial Hearing Officer: Hannah Schwager, Esq.

Date of Filing: October 18, 2023

Hearing Requested by: Parent

Date of Hearing: December 20, 2023

Record Close Date: December 31, 2023

Date of Decision: December 31, 2023

Names and Titles of Persons Who Appeared December 20, 2023

For the Student

Attorney for Parent Program Director, Provider Agency

For the New York City Department of Education Consultant Hearing Representative, DOE

BACKGROUND

The Parent, through counsel, filed a Due Process Complaint (DPC) on October 18, 2023. Parent alleges that the Department of Education (DOE) failed to implement recommended special education services for the Student for the 2023-2024 school year. Parent is seeking an order directing the DOE to directly fund the Provider Agency for the provision of special education services, as well as funding for a bank of compensatory hours for any related services that were not provided to the Student for the 2023-2024 school year (P. Ex. A-3, Tr.8). As more fully discussed below, I find that the DOE failed to implement the Student’s recommended services, 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 as Impartial Hearing Officer (IHO) on October 19, 2023. On December 20, 2023, both parties appeared for a virtual due process hearing. The DOE did not offer any exhibits or witness testimony. Parent provided five proposed exhibits which were entered into the record without objection from the DOE (Tr. 4). A complete list of all exhibits entered into the record at hearing is attached here as Appendix A. Parent provided the affidavit testimony of the Program Director of the Provider Agency (Program Director). The DOE representative crossexamined the affiant. Both parties waived opening statements and made oral closing statements.

FINDINGS OF FACT AND DECISION

After a full review of the record generated at hearing, 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 is attending a nonpublic school during the 2023-2024 school year. In 2021, and Individualized Education Services Program (IESP) was developed for the Student, with a projected implementation date of November 30, 2021 (P. Ex. B). That IESP recommended that the Student receive six periods per week of special educational teacher support services, as well as occupational therapy (OT) and counseling services (P. Ex. B-8). In November 2023, the Parent contracted with the Provider Agency to provide SETSS to the Student for the 2023-2024 school year (P. Ex. C).

I. FAPE

The IDEA provides that children with disabilities are entitled to a FAPE.^[1] 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).^[2] 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.^[3] 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].”^[4] Further, the location district is responsible for implementing the IESP services.^[5] 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.” ^[6]

The implementation of 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.”^[7] 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.”^[8] Additionally, §3602-c of the New York Education Law 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 “appropriateness” in “FAPE” means, in part, that the program of special education services will be properly implemented.^[9] In this case, the DOE does not allege, and did not submit any evidence to prove, that any special education services were implemented for the Student for the 2023-2024 school year, despite an IESP being created for the Student in 2021 which recommended such services. Therefore, it is undisputed that the DOE failed to implement the services set forth in the IESP, which left the Parent to contract for privately provided services. The DOE’s inaction was improper, as it has been held that the Department may not effectively compel the Parent to resort to self-help in obtaining a special education services provider.^[10] Such a “de facto delegation from the district to the parent of the obligation to find a [private] provider . . . at an acceptable rate is manifestly unreasonable.”^[11] The DOE’s failure to implement the program constitutes a denial of FAPE on an equitable basis for the 2023-2024 school year. ^[12]

II. 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.^[13] 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.”^[14] Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so.^[15] Although an award of damages is not available under the IDEA^[16] “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” ^[17]

My task in this matter is to determine whether the DOE is obligated to reimburse a private provider for services that were rendered to the Student due to a failure by the DOE to provide a FAPE. The Provider Agency charges $190.00 per hour for SETSS (P. Ex. C-1, P. Ex. E¶7).

The analysis for so-called “equitable service rate” cases have been treated in New York as a hybrid between unilateral placement theory cases,^[18] and pure compensatory education cases. ^[19] To grant the relief requested by Parent, I must still find that it is appropriate and find that equitable considerations support Parent’s request based upon the hearing record. In a case such as this the 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.” ^[20]

Generally, when determining whether a private placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits."^[21] A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.^[22] Here, it is undisputed that the Provider Agency is administering six hours per week of SETSS to the Student, as recommended by the Student’s most recent IESP (P. Ex. C-1, P. Ex. E ¶11). The DOE itself formulated this recommendation and has not presented any evidence showing that there is a more recent or more appropriate IESP that may be relevant. There is no dispute that the SETSS Provider is qualified to administer such services (P. Ex. D, P. Ex. E ¶12). Finally, the Program Director provided unrebutted testimony that the Student is making progress in response to the private SETSS services (P. Ex. E ¶19, Tr. 14-16). Therefore, I find that the services for which the Parent is seeking direct funding are appropriate for the Student.

Moreover, the record shows that the Student should have been receiving two thirty-minute sessions per week each of OT and counseling (P. Ex. B). The DOE did not present any evidence or argument addressing the Parent’s claims for these services or alleging that these services would be inappropriate for the Student. I find that the Parent’s request for compensatory services to be appropriate in this case. Here, the Student is entitled to a bank of hours reflecting one hour each per week of OT and counseling, which should have been administered beginning in September

2023. Therefore, a bank of forty-hours for each service is a proper remedy to compensate the Student for services that should have been rendered for the 10-month 2023-2024 school year.

Reasonable Rate

The District did not explicitly express its objection to the rate charged by Provider Agency but requested in its closing statement that the DOE be allowed to determine the rate paid for the services the Student receives (Tr. 18-19). However, the DOE did not specify the rate it would find reasonable for SETSS, OT or counseling services. Furthermore, the DOE provided no evidence or testimony addressing the Provider Agency’s rate of $190.00 per hour, or to show that this rate was unreasonable or excessive. The Program Director testified credibly that the rate of $190.00 per hour covers not only the wage paid to the SETSS Provider, but also covers the Provider Agency's administrative and overhead costs (P. Ex. E ¶¶ 7 & 8). Therefore, there is nothing in the hearing record to substantiate a finding that the rate charged for SETSS is unreasonable, or that it does not in fact reflect the reasonable market rate for such services.

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) The DOE shall reimburse and/or directly fund the Provider Agency for six (6) sessions per week of SETSS for the 2023-2024 school year, less any amount provided pursuant pendency, at a rate not to exceed $190.00 per hour. Such payment shall be made within thirty (30) days of submission of an affidavit from the Provider Agency stating the dates of services and total hours provided.

3) The DOE shall directly fund, at a rate equal to the average hourly rate paid by the DOE’s Implementation Unit for occupational therapy services in the six-month period preceding this Order, a bank of hours of occupational therapy services totaling forty (40) hours. This bank of hours shall be available to be used by the Student for occupational therapy services administered by a properly qualified provider. The bank of hours will expire if not used by December 31, 2024.

4) The DOE shall directly fund, at a rate equal to the average hourly rate paid by the DOE’s Implementation Unit for counseling services in the six-month period preceding this Order, a bank of hours of counseling services totaling forty (40) hours. This bank of hours shall be available to be used by the Student for counseling services administered by a properly qualified provider. The bank of hours will expire if not used by December 31, 2024.

Dated: December 31, 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

PARENT EVIDENCE

IHO EVIDENCE

Exhibit Title Date Pages

I Status Conference Summary Email 12/15/2023 2

Footnotes

[1] 20 U.S.C. § 1400 (d)(1)(A)

[2] 20 U.S.C. § 1401(9)

[3] Educ. Law § 3602-c (2)

[4] Educ. Law§ 3602-c (2) (b) (l)

[5] Educ. Law § 3602-c (2)(a)

[6] Educ. Law § 3602-c (2)(b)(1)

[7] Educ. Law § 3602-c(2)(a)

[8] Educ. Law § 3602-c(2)(b)(1)

[9] See 8 NYCRR 200.4(e)(7); see also Application of a Child with a Disability, Appeal No. 08-087.

[10] See, e.g., Application of a Student with a Disability, Appeal No. 21-068.

[11] Id.

[12] See Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).

[13] 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).

[14] Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015)) (citation omitted).

[15] Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993).

[16] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002).

[17] Doe v. East Lyme, 790 F.3d at 454.

[18] See, e.g., Application of a Student with a Disability, Appeal No. 20-115.

[19] 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).

[20] East Lyme Bd. of Educ., 790 F.3d at 454 (citation omitted).

[21] Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115.

[22] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).