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FINDINGS OF FACT AND DECISION
Case Number: 265181
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., Rep. District [REDACTED]
CSE [REDACTED]
Impartial Hearing Officer: Oren Varnai
Date of Filing: 11/7/2023
Hearing Requested by: Parent
Date of Hearing: 12/14/2023
Record Close Date: 12/20/2023
Date of Decision: 12/20/2023
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE DUE PROCESS HEARING:
For the Student:
1. [REDACTED] for the parent, (hereinafter referred to as “Parent’s attorney”)
For the Department of Education:
1. [REDACTED] appeared on behalf of the DOE, (hereinafter referred to as “District’s Representative”)
Findings of Fact and Decision
NEW YORK CITY OFFICE OF ADMINISTRATIVE
TRIALS AND HEARINGS (OATH)
SPECIAL EDUCATION HEARINGS DIVISION
[REDACTED], a Minor, by and through his/her Parent(s),
PETITIONER FINDINGS OF FACT AND
DECISION
against Case # 265181 THE NEW YORK CITY Oren Varnai DEPARTMENT OF EDUCATION, Impartial Hearing Officer
RESPONDENT
FINDINGS OF FACT AND DECISION
I. Jurisdiction This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.
The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.
II. Background
A. Due Process Complaint Notice
Petitioner (Parent) is the parent of Student (“Student” or “Child”). On 11/7/2023, Petitioner filed a Due Process Complaint (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”). Parent alleges that the Department of Education (“DOE”) failed to implement an individualized education plan (“IEP”) for the 10-month 2023-2024 school year. The Parent specifically seeks a compensatory education award consisting of:
a. Occupational Therapy ("OT"), in a 1:1 setting 2 times per week, 30-minute session.
b. Speech and Language Therapy ("SLT"), in a 1:1 setting, 2 times per week, 30-minute session.
c. Special Education Itinerant Services ("SEIT"), in a group of up to 2 students, 3 times per week, hour-session.
It appears Parent made an error in indicating that the above services should be delivered in a 2:1 setting, yet the IEP mandated 1:1 setting. Since the Parties agreed that the IEP recommendations controlled, all other requests not in conformity with the IEP will be disregarded.
B. Procedural History
I was appointed on 11/8/2023. A settlement conference before an impartial hearing officer not appointed to adjudicate this action was held virtually on 12/7/2023. The Due Process Hearing (“DPH”) took place on 12/14/2023, whereby Parent presented documentary evidence, and DOE presented no evidence. The Parties agreed that Pendency lied in the 4/27/2023 IEP.
In light of the foregoing and as more fully discussed below, I find that the DOE failed to implement the 4/27/2023 IEP, thereby depriving the Student a FAPE for the 2023-2024 school year, and that the relief Parent seeks, funding for the provision of services directly to the Student consistent with the IEP, is appropriate compensatory relief.
III. Findings
of Facts 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 attended the parental placement school during the 2023-2024 school year. The Parent did not challenge the content of the 4/27/2023 IEP, merely the delivery of the recommended services. See 12/14/2023 Hearing Transcript.[1] Moreover, the parties agree to the following operative facts:
1. The 4/27/2023 IEP is the operative program for this student for the 10-month 2023-2024 school year.
2. The DOE did not implement the IEP’s mandates.
3. DOE did not present any evidence or argument as to what an appropriate rate should be, and I am constrained to find that any services provided to Student during the 10-month 2023-2024 school year pursuant to the recommendations of the IEP should be funded at the rate Parent contracted rate subject to the limitations outlined in the below order.
4. In considering the above representations, it is clear that the parties agree on the essential nature of the parent’s dispute, to wit: Student is entitled to services as described in the IEP and that the DOE did not provide such services. Moreover, there is no dispute for me to resolve between the parties as to how any IEP services provided to Student should be funded, except for the rate.
Since DOE can mitigate its potential financial loss, if any, of the hourly rate charged by the private provider at any time by implementing Student’s program or identifying a provider to contract with Parent at a lower hourly rate, there is no prejudice to DOE. If a market rate exists that is lower than the contracted rate, DOE should have no issues in identifying a provider for Parent; if DOE cannot identify a provider at a lower rate than that charged by Parent’s unilaterally procured provider, an argument that the rate charged is excessive cannot stand. This is especially true when DOE abrogated its responsibility to deliver the services to Student, and improperly shifted that responsibility to Parent without further discussion or explanation.
A. Burden
Except for in circumstances not applicable here, 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))
B. FAPE
The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed (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.[2] 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.[3] Here, the Parents are not seeking the remedy of tuition reimbursement.[4] Thus, the DOE has the burden of proof on all issues in dispute.
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, [5] establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum,[6] and provides for the use of appropriate special education services. 7A free and appropriate public education can be said to be offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.[8] "[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP."[9] The Supreme Court ruled that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." [10]
Although school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"[11] the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA.[12] Under the IDEA, if procedural violations are alleged, an IHO 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 parents' opportunity to 7 See 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]. participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. [13]
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 providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,"[15] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."[16] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"[17] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"[18] is what is required. School districts are not required to "maximize" the potential of students with disabilities,[19] but are required to provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'"[20]
The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"[21] and designed to be provided in the least restrictive environment (“LRE”).[22] An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance,[23] and outlines annual goals specifically designed to address the Student’s needs resulting from his disability in order to make progress in the general education curriculum[24] through the use of appropriate special education services.[25] Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives." [26]
C. Dual enrollment
Despite Parent’s DPC, which contains references to “equitable services” and “IESP,” this case is not one where, under State law, parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability on an equitable basis pursuant to Education Law §3602-C. This case involves FAPE under the IDEA.
Education Law 4410(1)(i) reads that a:
“Preschool child” means a child with a disability as defined in section forty-four hundred one of this article who is first eligible for services as defined in paragraph f of this subdivision but who will not have become five years of age on or before December first of the school year, or a later date if a board establishes such later date for eligibility to attend school. A child shall be deemed a preschool child through the month of August of the school year in which the child first becomes eligible to attend school pursuant to section thirty-two hundred two of this chapter. (Emphasis added).
Here, we do not have a case where the development of an IESP could have been created since Student is not a school-aged child under Education Law 3602-C. Whether Student is parentally placed in a school, or Student was placed in a DOE program, is irrelevant. DOE must develop an IEP pursuant to 8 NYCRR 200.3(a)(2) and 8 NYCRR 200.16, which set forth the procedural requirements for preschoolers.
Since Education Law 3602-C is inapplicable to preschoolers, and DOE must provide Student with a FAPE under Federal and State Regulations. Specifically, 8 NYCRR 200.16(e)(3) outlines the available program recommendations for preschoolers:
If the committee determines that the preschool child has a disability, the committee shall recommend approved appropriate services and/or special programs and the frequency, duration, location and intensity of such services including, but not limited to, the appropriateness of single services or half-day programs based on the individual needs of the preschool child. The committee shall first consider the appropriateness of providing (i) related services only; or (ii) special education itinerant services only; or (iii) related services in combination with special education itinerant services; or (iv) a half-day preschool program as defined in section 200.1(u) of this Part; or (v) a full-day preschool program as defined in section 200.1(p) of this Part. If the committee determines that the child demonstrates the need for a single related service, such service shall be provided as a related service only or, where appropriate, as a special education itinerant service.
D. Compensatory Relief a. A Burlington/Carter Analysis is Inappropriate
Some State Review Officers (“SRO”) in the Office of State Review have stated that Impartial Hearing Officers should apply the 3-Prong 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.[27] I respectfully disagree for the reasons outlined below.
In Burlington, the Court references rejection of an IEP when it found that “[t]he first question on which we granted certiorari requires us to decide whether this grant of authority includes the power to order school authorities to reimburse Parents for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act.”[28] Likewise, the Court limited the discussion to schools when it wrote, “it seems clear beyond cavil that ‘appropriate’ relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school.” [29]
Unlike in Burlington and Carter, in this case, Parent and the DOE agree that the services in the Student’s IEP were appropriate. The dispute between the parties revolves around the DOE’s unwillingness and/or inability to provide to Student with services outlined in their own proposed plan. Also, unlike in Burlington and Carter where the parents placed the students in private schools, in this case, though Student may be in a private school, only the supportive services are requested, not tuition reimbursement. Relatedly, tuition reimbursement is invariably attached to a Parent’s obligation to pay. That obligation is typically for the duration of an entire school year. Irrespectively, the below order explicitly provides DOE with a mechanism to extinguish any future payment to a related services or SEIT provider by simply implementing its own IEP. IHO’s order does not obligate DOE to make any payments so long as DOE implements the IEP. Alternatively, if implementation is not possible, DOE may locate and identify a properly qualified provider who is ready, willing, and able, to render services to Student, and who can contract with Parent to deliver those services at the same frequency, location(s) and time(s) that the privately procured provider delivers those services.
Applying a Burlington/Carter analysis to failure-to-implement cases forces Parent into a predicament that is contrary to the purposes of the IDEA and state law. If the district fails to implement the IEP, Parent must either pay for the services the student should have been receiving, in which case the services are no longer “free,” or Parent must forgo the services pending the outcome of the litigation, which is inappropriate as it forces Student to be without services. Ironically, Burlington addressed this exact situation when the Court found that “[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.” [30]
Although in the context of 3602-C cases, the analysis to non-implementation of services outlined in an IESP or an IEP is the same. In a recent decision, the Office of State Review favored a Burlington analysis because the “administrative due process system was not designed to set rate-making policies for what has grown into a completely unregulated cottage industry.”[31] However, Burlington/Carter requires IHOs to assess the appropriate cost of a private school’s tuition, thus setting a “rate.” IHOs regularly examine evidence of rates for Independent Educational Evaluations and compensatory services for students who attend public schools and have been denied a FAPE. The administrative due process system was specifically designed to address special education claims and set rates for tuition and services where necessary. The same recent SRO decision stated that the attempts to analyze Section 3602-C failure-to-implement cases “that do not use a Burlington/Carter analysis have tended to lead to chaos,”[32] but I disagree. In my view, these types of cases (including this case) are simple: DOE recommended, agreed to, and was supposed to, provide a service which it failed to provide, so Student is entitled to compensatory services, albeit on a prospective basis due to the ongoing harm.
I also note that the Office of State Review—collectively—has been inconsistent as to whether to apply a Burlington/Carter analysis or compensatory analysis. For example,[33] one SRO used a compensatory services analysis in a Section 3602-C case. Therefore, even some SROs believe that a compensatory services approach is the appropriate approach to deciding these cases.
Using a Burlington/Carter analysis improperly places a burden on the parent. In New York, school districts have the burden of proof –including the burden of production and burden of persuasion – except when a Parent is seeking tuition reimbursement for a unilateral placement.[34] Even then, Parent must only show that the placement they selected is appropriate.[35] The New York State Education Department (“NYSED”) itself recognizes that parents only have a burden related to the appropriateness of a private school.[36] 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. [37]
Finally, Educ. Law § 4404(5) defines tuition as “instructional services.”[38] The definition of “instructional services, does not include the “related services” sought by parents in these actions. The Commissioner of Education defines related services as “developmental, corrective, and other supportive services as are required to assist a student with a disability.”[39] The definition of SETSS places these services as “related” services not “instructional.” The argument could be made that these services are instructional, but I find that they are not, and they should not be lumped with cases involving the Burlington-Carter analysis.
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 cases, and to require a Burlington/Carter analysis would shift the burden regarding “prong II” to Parent, which is clearly not what NY Educ. Law § 4404(1)(c) intended to accomplish. As such, when DOE fails to implement the services on a student’s IEP, as it has done here, a compensatory services analysis is the appropriate method of developing a remedy.
b. A Compensatory Relief Analysis is Appropriate
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.”[40] Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so.[41] Although an award of damages is not available under the IDEA, 42 “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” [43]
42 see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002).
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. [44] 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. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA.[45] Compensatory education can serve as a “replacement of educational services the child should have received in the first place", and any award "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA[.]" [46]
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.[47] Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers. [48]
While it may very well be permissible for a district to include Parent in the identification of a particular provider, especially if Parent is willing and able to do so, it does not follow that the responsibility to redress Parent’s inability to locate a provider is shifted away from DOE. DOE does not explain why it did not simply schedule the special education services as mandated by the IEP and, in essence, inform Parent where and when the services would be available, and at which time Parent would have the responsibility to produce the student in order to receive the services.
Parent was seeking prospective and ongoing compensatory education until such time as DOE implements the IEP. Once DOE implements the provisions of the IEP, Parent will no longer be entitled to unilateral procurement of services. Any unilateral provision of services up until the date of this Order was covered by Student’s right to Pendency.
An order allowing Parent to prospectively procure services DOE should have been providing all along is not an enforcement of implementation; it is merely a mechanism that allows DOE to implement the services it had contracted to provide, or to allow Parent to seek out private providers—this is a question of equity upon which IHOs can rule. I also have serious concerns with applying the Burlington/Carter analysis retrospectively.
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 for the 2023-2024 school year. After considering the representations of the Parties, I find that Student is entitled to the services described in the 4/27/2023 IEP and that it is the DOE’s responsibility to provide same. Therefore, the DOE must reimburse and/or directly fund the recommended services outlined in this order and must fund the provision of such services at the contracted rate.
E. Pendency
Under the IDEA and New York State Law, a student is to remain his or her then current educational placement, unless the student’s parents and the District agree otherwise, for the duration—or pendency—of any due process proceeding relating to the identification, evaluation, or placement of the student.[49] Pendency serves as an automatic injunction, and there is no requirement that the moving party meet the requirements of injunctive relief of irreparable harm, likelihood of success on the merits, or a balancing of the equities or hardships.[50] The stated purpose of pendency is to maintain the Student’s status quo as it existed on the date of the filing of the DPC, and to provide consistency and stability in the education of a student with a disability in order to "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school."[51] Pendency is also evaluated on its own, without considering the appropriateness of the program the CSE has offered the Student, in that “pendency placement and appropriate placement are separate and distinct concepts.” [52]
Pendency under the IDEA does not necessitate a particular site or location[53] as the “current placement is generally not considered to be location specific,”[54] or at a particular grade level.[55] The inquiry focuses on the student’s then current educational placement which has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP.[56] Pendency "requires a school district to continue funding whatever educational placement was last agreed upon for the child, 57” with entitlement to the stay-put arising when a due process notice is filed. [58]
Educational placement is "the general type of educational program in which the child is placed,"[59] and "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers."[60] If there is an agreement between the parties with respect to placement during the due process proceedings, it would serve to supersede other agreements, and a new IEP need not be created.[61] Finally, a prior un-appealed IHO decision establishes a student's pendency as his current educational placement. [62]
Here, DOE did not dispute that the IEP dated 4/27/2023 constitutes Student’s pendency.
57 Id.
IV. Orders NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY:
1. ORDERED that, for purposes of Pendency, which lies in the 4/27/2023 IEP, DOE shall reimburse and/or directly fund at the out of pocket expenses, actual, hourly rates contracted, immediately upon submission of invoices and service provision dates, and a valid contract between the Parent and properly licensed/certified (if applicable) provider of Parent’s choosing, from the date of the filing of the DPC until the date of this order, for the 2023-2024, 10-month, school year, the following:
a. Occupational Therapy ("OT"), in a 1:1 setting 2 times per week, 30-minute session.
b. Speech and Language Therapy ("SLT"), in a 1:1 setting, 2 times per week, 30-minute session.
c. Special Education Itinerant Services ("SEIT"), in a group of up to 2 students, 3 times per week, hour-session.
2. ORDERED that, to extent that any pendency services were not implemented from the filing of the DPC until the date of this Order, DOE shall establish a bank of hours of those same pendency services outlined in paragraph 1 of this Order, under the same rate, provider, and funding conditions. The bank of hours may be used for up to 1 year from the date of this Order.
3. ORDERED that DOE reimburse and/or directly fund, immediately upon submission of invoices and service provision dates, and a valid contract between the Parent and properly licensed/certified (if applicable) provider of Parent’s choosing, at the contracted hourly rate in effect as of the date of the filing of this DPC, for the entirety of the 2023-2024, 10-month, school year, to the extent not already provided by DOE, the following:
a. Occupational Therapy ("OT"), in a 1:1 setting 2 times per week, 30-minute session.
b. Speech and Language Therapy ("SLT"), in a 1:1 setting, 2 times per week, 30-minute session.
c. Special Education Itinerant Services ("SEIT"), in a group of up to 2 students, 3 times per week, hour-session.
4. ORDERED that DOE shall continue to fund the above services at the above hourly rate until such time as DOE either (4(a) or 4(b)): a) Implements the services of the 4/27/2023 IEP, for the remainder of the school year, or b) Locates, identifies, and refers to Parent a properly qualified provider who is ready, willing, and able, to deliver the service(s) outlined above to Student, and who can contract with Parent to deliver the service(s) at DOE expense and direct funding at a lower hourly rate at the same frequency, location(s), and time(s) that the privately procured provider(s) delivers those services to Student, for the remainder of the school year.
c) If DOE complies with either of paragraphs 4(a) or 4(b) of this Order, or combination thereof, Parent must cooperate with DOE to effectuate the delivery of the service(s) to Student or continue using the service(s) Parent unilaterally contracted provider(s) to deliver but at Parent’s own expense.
d) If at any time after DOE complies with either paragraphs 4(a) or 4(b), or combination thereof, the service(s) provider(s) secured by DOE or referred to Parent can no longer provide the service(s) to Student, Parent shall be entitled to funding under the provisions of paragraph 3 with the unilaterally contracted provider for the remainder of the school year.
e) Paragraphs 4(a) and 4(b) permit DOE one instance to either implement and/or identify a provider(s) at a lower hourly rate, subject to the other provisions of this Order. In all other circumstances, Parent shall be entitled to continued funding of the unilaterally contracted provider pursuant to paragraph 3 for the remainder of the school year.
5. ORDERED that DOE initiate and conduct new evaluations in all areas of suspected disabilities for Student, and that the CSE reconvene to develop a new IEP or IESP for Student, consistent with 8 NYCRR § 200.4, with the date of this Order being the triggering event to commence the timelines for the evaluations. This Order shall constitute Parental consent to the evaluations unless Parent, in writing, objects.
DATED: 12/20/2023 SO ORDERED
Oren Varnai, 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 proceedings 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.
IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD
I, Oren Varnai, 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 were represented to me to be either the original or a true copy of the original materials that were provided to me in this matter.
DATED: 12/20/2023 CERTIFIED BY
Oren Varnai., IHO
EXHIBITS
PARENT EXHIBITS
A. DPC 11/6/2023 5 pages
B. IEP 4/27/2023 13 pages
DOE’S EXHIBITS
1. None None None
IHO’S EXHIBITS
I. None None None
Footnotes
[1] In that the transcript from the hearing has not been finished, reference to the transcript as a whole is made herein.
[2] 20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982].
[3] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.
[4] Ex. P-A.
[5] See 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i].
[6] See 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii].
[8] Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005])
[9] Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009].
[10] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].
[11] R.E., 694 F.3d at 190-91.
[12] M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003].
[13] 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245.
[14] 20 U.S.C. § 1415[f][3][E][i].
[15] Rowley, 458 U.S. at 203.
[16] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.
[17] Endrew F., 137 S. Ct. at 1001.
[18] Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379.
[19] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.
[20] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].
[21] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.
[22] 20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132.
[23] 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i].
[24] 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii].
[25] 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v].
[26] Endrew F., 137 S. Ct. at 1000.
[27] Application of the New York City Department of Education, Appeal No. 23-071.
[28] Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 369, (1985).
[29] Id, at 369.
[30] Burlington, 471 U.S. at 372.
[31] Application of the New York City Department of Education, Appeal No. 23-071.
[32] Id.
[33] Application of a Student with a Disability, Appeal No. 23-065.
[34] NY Educ. Law § 4404(1)(c).
[35] Id.
[36] See New York State Law, Regulations and Policy Not Required by Federal Law/Regulation/Policy March 2023, available at https://www.nysed.gov/sites/default/files/special-education/nys-608-analysis-updated-march-2023_.pdf (stating “[t]he law creates an exception for impartial hearings in which the parent seeks tuition reimbursement for a unilateral placement in a private school” at p. 11.) (Emphasis added).
[37] See 34 C.F.R. 300.130 where the definition of parentally placed private school children means placement in schools that meet the definition of elementary or secondary schools.
[38] Education Law § 4401 [5] defines “tuition” as “the per pupil cost of all instructional services, supplies and equipment, the operation of instructional facilities and allocable debt service for the instructional facilities, as determined by the commissioner” [emphasis added].
[39] “Related services means developmental, corrective, and other supportive services as are required to assist a student with a disability and includes speech-language pathology, audiology services, interpreting services, psychological services, physical therapy, occupational therapy, counseling services, including rehabilitation counseling services, orientation and mobility services, medical services as defined in this section, parent counseling and training, school health services, school nurse services, school social work, assistive technology services, appropriate access to recreation, including therapeutic recreation, other appropriate developmental or corrective support services, and other appropriate support services and includes the early identification and assessment of disabling conditions in students.” NYCRR § 200.1(qq).
[40] Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[41] Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993).
[43] Doe v. East Lyme, 790 F.3d at 454.
[44] See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
[45] P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008).
[46] Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").
[47] Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-79 (7th Cir. 2015) (citing cases).
[48] 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).
[49] 20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M., 752 F.3d at 170-71; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]); M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]
[50] Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996].
[51] Honig v. Doe, 484 U.S. 305, 323 [1987] Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985].
[52] Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459.
[53] Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980].
[54] Child's Status During Proceedings, 71 Fed. Reg. 46709 [Aug. 14, 2006].
[55] Application of a Child with a Disability, Appeal No. 03- 032; Application of a Child with a Disability, Appeal No. 95-16.
[56] Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71
[58] Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015]. See Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]).
[59] Concerned Parents, 629 F.2d at 753, 756.
[60] T.M., 752 F.3d at 171.
[61] see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy, 86 F. Supp. 2d at 366; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007].
[62] Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197.