STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-024
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Shehebar Law PC, attorneys for petitioner, by Ariel A. Bivas, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Nicole Daley, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her son's private services delivered by Alpha Support Services (Alpha) for the 2023-24 school year and denied her request for compensatory education services. The district cross-appeals from that portion of the IHO's decision which did not address equitable considerations. The appeal must be dismissed. The cross-appeal must be dismissed.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
During the 2016-17 school year the student was in "prekindergarten" at a nonpublic school (Parent Ex. B at p. 1). A CSE convened on May 19, 2017, found that the student was eligible for special education services as a student with a speech or language impairment, and developed an IESP with a projected implementation date of September 7, 2017 (id.).[1] For the 2017-18 school year, the CSE recommended that the student receive three 30-minute sessions per week of individual speech-language therapy, one 30-minute session per week of individual occupational therapy (OT), one 30-minute session per week of group OT, and three 30-minute sessions per week of individual physical therapy (PT) (id. at p. 8). Additionally, the CSE recommended daily, full-time, group paraprofessional services for health and ambulation (id.). The IESP noted that the student was parentally placed in a nonpublic school (id. at p. 10).
The parent signed a service contract with Alpha on May 13, 2024 for the provision of the student's related and paraprofessional services from September 1, 2023 through June 30, 2024 (see Parent Ex. C).[2] Specifically, the contract indicated that the parent understood the student was entitled to funding or reimbursement from the district for the recommended services of: one 30-minute session per week of individual OT, one 30-minute session per week of group OT, three 30-minute sessions per week of individual speech-language therapy, three 30-minute sessions per week of individual PT, and daily, full-time group paraprofessional services for health and ambulation (id. at p. 1). The contract stated that Alpha would "make every effort to implement the recommended services . . . with suitable qualified providers for the 2023-24 school year" (id.). The only service rate listed in the contract was $65 per hour for a paraprofessional (id. at p. 2).
A. Due Process Complaint Notice
In a due process complaint notice dated July 12, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (see Parent Ex. A). The parents asserted that the CSE last created a program for the student with an IESP dated May 2017 (id. at p. 1). The parents argued that the district failed to implement the May 2017 IESP despite its obligation to do so at the start of the 2023-24 school year (id. at p. 2). The parents contended that they were unable to find related service providers at the district's rate and therefore unilaterally secured their own providers at an "enhanced rate" (id.). In the event the district maintained that it offered the student appropriate programming, the parents reserved the right to challenge the appropriateness of any recommendations (id.). Additionally, the parents asserted that the student's pendency was based on the May 2017 IESP and sought funding for those services during the pendency of the proceeding (id.). As relief, the parents requested an order directing the district to directly fund/reimburse the related services mandated in the May 2017 IESP at an enhanced rate (id.). The parents also reserved the right to seek compensatory educational services for any services that were mandated but not provided to the student due to the district's failure to implement the IESP (id.). In a response to the due process complaint notice, the district indicated that the CSE had convened on April 29, 2021 and developed an IESP for the student that recommended similar services as those listed in the 2017 IESP (Due Process Response dated 8/13/2024).
B. Impartial Hearing Officer Decision
An impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on September 5, 2024 (see Tr. pp. 1-48).[3] During the impartial hearing, the district argued that the parent failed to show that the services from Alpha were appropriate for the student and the parent argued that the IHO should award funding for Alpha as compensatory education and, in any event the parent should prevail even if a Burlington/Carter analysis was applied (Tr. pp 36-46).
In a decision dated December 2, 2024, the IHO found that the parents were seeking "direct funding" for paraprofessional services "at a contracted rate, and a bank of hours" for OT and PT (IHO Decision at p. 5). Additionally, the IHO decision reflected that the parent's attorney "stated that the [p]arents received a Related Service Authorization ("RSA") for [the student's] speech-language therapy" (id.). The IHO found that it was uncontested that the district failed to provide the student with the mandated services (id. at pp. 5, 11). The IHO held that the district "c[ould not] be absolved of its statutory obligation to implement services for a student simply by being inactive in implementing the mandated services" (id. at p. 6). The IHO determined that the district had an obligation to provide the student with services in conformity with the IESP and that the district failed to provide those services on an equitable basis, therefore, the district failed to sustain its burden to show it provided the student with a FAPE for the 2023-24 school year (id. at pp. 6-7).
Regarding the parents' requested relief, the IHO noted that the district had the burden "to come up with an appropriate compensatory education remedy that would most reasonably and efficiently place the [s]tudent in the position that the [s]tudent would have been but for the denial of FAPE" (IHO Decision at p. 8). The IHO found that the district failed to offer any compensatory services to the student; however, that the hearing record did not support a compensatory award (id.). The IHO held that the evidence failed to demonstrate that the student was receiving the mandated services that would meet his special education needs (id.). Notably, the only witness for the parent had no "substantive knowledge" of the student or the services that the student was receiving (id.). Due to the "dearth of evidence," the IHO found that he was "constrained to deny" the parents' requested relief (id. at p. 9).
Next, the IHO addressed the fact that the last IESP in the hearing record was dated May 2017 (IHO Decision at pp. 9-10). The IHO determined that it was "unclear as to whether" the May 2017 IESP reflected the student's present levels of performance for the 2023-24 school year (id. at p. 10). The IHO held that the hearing record was devoid of evidence as to when the district last conducted an updated evaluation or assessment of the student (id.). Based on this, the IHO found that the district should reconvene "as soon as practical to create an IESP for the [s]tudent based on up-to-date evaluations/assessments" (id.).
The IHO found there was no basis to award any relief to the parents, and ordered the CSE to conduct updated evaluations/assessments of the student within 30 days of the order and reconvene to create an IESP within 15 days of the completion of the updated evaluations/assessments (IHO Decision at p. 11).
IV. Appeal for State-Level Review
The parent appeals. The parent contends that the IHO erred in dismissing her request for funding for paraprofessional services by finding that she did not meet her burden of proof that the services were appropriate. The parent argues that the 2017 IESP and a 2021 IESP indicate that the student required a paraprofessional for safety reasons and that she does not disagree with the IESPs but seeks to implement the recommended services.[4] Therefore, the parent asserts that the services are "specially tailored to meet the [student's] unique needs." Moreover, the parent contends that as the paraprofessional services are "undoubtedly necessary" for the safety of the student based on both the 2017 and 2021 IESPs, and not "'educational in nature,"' she does not have to show "means and methodologies, progress, etc." The parent argues that the IHO should have awarded funding for the paraprofessional services at the contracted rate of $65 per hour.
Additionally, the parent asserts that the IHO erred by denying her request for a bank of compensatory education services. The parent argues that the IHO should have awarded a bank of services for OT and PT which the district failed to implement.[5]
The district submits an answer with cross appeal. In its answer, the district argues that the IHO properly found that the parent failed to meet her burden to prove that the unilaterally obtained services were appropriate. The district asserts that the hearing record lacked information regarding the paraprofessional services including the qualifications of the provider, how the provider was trained, and how the service was tailored to meet the student's needs; nor was there any evidence of progress, such as a progress report. The district argues that the lack of evidence does not support a finding that the services provided to the student were appropriate. Moreover, the district contends that the Alpha contract indicated that that agency would make every effort to implement the recommended services from the IESP, but the only service the student received through Alpha was the paraprofessional service. Further, the district asserts that there is no explanation in the hearing record as to why Alpha did not provide the student with the other related services. The district asserts that the SRO should reject the parent's claim that since paraprofessional services are not educational, she did not need to show how they were implemented. The district contends that there is nothing in the hearing record to demonstrate that the paraprofessional services were provided in accordance with the student's health and safety needs. The district also argues that the IHO properly denied the request for compensatory education services.
In its cross appeal, the district asserts that the IHO should have found that equitable considerations do not favor the parent as there is no evidence that the parent provided the district with notice of her intent to unilaterally obtain services.
In an answer to the cross appeal, the parent argues that she met her burden to prove that the "unilaterally implemented services were appropriate." Regarding equitable considerations, the parent asserts that she fails "to understand how the district can even faithfully make the argument that 'equities do not favor the parent' when . . . the district failed in its obligation to implement" the student's IESP. The parent argues that the district "failed to do its job" as the student was without services on the first day of school and therefore, equities should favor the parent. The parent asserts that she could not have sent a notice to the district 10 days prior to the start of the school year because she could not have known that the district would default on its obligation to provide the student with services. The parent contends that the due process complaint notice was sufficient notice for the district.[6]
V. Applicable Standards
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]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).
However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school 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 (Educ. Law § 3602-c[2]).[7] "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" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services 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]" (Educ. Law § 3602-c[2][b][1]). 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 (id.).[8] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
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. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).
VI. Discussion
A. Preliminary Matters
Neither party has appealed from the IHO's decision that the district did not offer the student a FAPE for the 2023-24 school year or the IHO's order for the district to conduct new evaluations/assessments of the student and reconvene the CSE based on those new evaluations/assessments (IHO Decision at pp. 6-7, 10-11). Accordingly, these findings have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).[9]
B. Unilaterally Obtained Services
In this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement. Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2023-24 school year and, as a self-help remedy, she unilaterally obtained private services from Alpha for the student without the consent of the school district officials, and then later commenced due process to obtain remuneration for the costs thereof. Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA. Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services. "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).
The parent's request for district funding of privately-obtained paraprofessional services must be assessed under this framework. Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student 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 (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[10] 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 (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]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
Turning to a review of the appropriateness of the unilaterally-obtained services, the federal standard for adjudicating these types of disputes is instructive.
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (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]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1. The Student's Needs
The hearing record is sparse with regard to documentation of the student's special education needs during the 2023-24 school year (see Tr. pp. 1-48; Parent Exs. A-E; Dist. Ex. 3). Academically, the May 2017 IESP indicated that according to the parent the student was able to count up to 10 by rote and identify various colors and shapes but had difficulties during large group instructional activities (Parent Ex. B at p. 1). Regarding the student's speech-language development, the May 2017 IESP reported that he presented with deficits in articulation, expressive language, and oral motor skills (id.). Further, the May IESP noted that the student's "significant" weaknesses in oral motor skills impacted his ability to articulate all sounds, chew all textures, and swallow, and that he had a history of "gagging and aspirating" (id.).
Turning to the student's physical development, the May 2017 IESP included information from the student's doctor that indicated the student "ha[d] a neurological condition in which he c[ould] have frequent falls, aspirate easily, and have periods of weakness" (Parent Ex. B at p. 2). According to the IESP, the student "ha[d] sensory processing difficulties, which m[ade] it hard for him to swallow food," and that he was "susceptible to choking and require[d] adult supervision at all times to maintain his safety" (id.). Additionally, the IESP reflected parent report that the student had "recently been experiencing seizures" (id.).
The May 2017 IESP reflected that the student had gross motor skill deficits and poor endurance, balance, safety awareness, and coordination (Parent Ex. B at p. 3). The student also struggled with running, safely negotiating stairs, and "performing balancing activities" (id.). The student's OT update, included in the 2017 IESP, indicated that he could "produce" basic shapes and cut at an age-appropriate level but had difficulty with hand/scissor orientation skills (id.). The OT update reported that the student had poor trunk control, and that he exhibited difficulty when transitioning (leaving his session), demonstrated by an increase in opposition and demands for extra activity time (id.).
2. Paraprofessional Services
The parent appeals from the IHO's finding that the parent failed to meet her burden to prove that the unilaterally obtained paraprofessional services were appropriate and declined to award any relief to the parent.
A review of the hearing record shows that the parent entered into a contract with Alpha on May 13, 2024, for the delivery of related services and group paraprofessional services to the student during the 2023-24 school year (Parent Ex. C). The secretary at Alpha testified that Alpha provided only paraprofessional services to the student during the 2023-24 school year (Tr. p. 33; Parent Ex. D ¶ 2). In her written affidavit, the secretary indicated that she "recognize[d] the parent service contract, progress report, and [the] provider's credentials being offered into evidence as they were pulled from the [s]tudent's file with Alpha for the 2023-2024 school year" (Parent Ex. D ¶ 3). However, while the parent contract was submitted into evidence, the only evidence submitted regarding the paraprofessional's "credentials" was his State-issued driver's license, and no progress reports were offered or admitted into evidence (see Tr. pp. 1-48; Parent Exs. C; E). When asked about the student's progress, the secretary stated that she would not know "how much" or "what kind" of progress the student had made but indicated that she believed he had made progress since "most of our students actually make progress" (Tr. p. 34). She indicated that if more information regarding the student's progress was needed, the "supervisors" would know more as she does not "actually interact with the students" (Tr. pp. 33-34).
The parent contract with Alpha indicated that the student's paraprofessional services were for "Health Ambulation" and to be provided full time on a daily basis in a group (Parent Ex. C at pp. 1, 2). However, there is no evidence in the hearing record regarding the days and times the paraprofessional services were delivered to the student during the 2023-24 school year, or whether those services were implemented (see Tr. pp. 1-48; Parent Exs. A-E; Dist. Ex. 3). Further, there is no information in the hearing record regarding how the group paraprofessional services supported the student in his classroom, such as testimony or documentary evidence from the paraprofessional or teachers who worked with the student. Additionally, although it was not the parent's responsibility to evaluate the student and identify his needs (see A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]), the only evidence of the student's needs in the hearing record is the May 2017 IESP, which is not a reliable source of evidence to support the appropriateness of the paraprofessional services for the student during the 2023-24 school year. As such, the hearing record is devoid of information documenting the student's health and ambulation needs, and the nature of the paraprofessional's role in assisting the student with those needs including any health or safety interventions, or specialized materials used in connection with the paraprofessional services to support the student in his educational setting.
The parent asserts that the paraprofessional services were not "educational in nature," and therefore, she did not need to show the "means, methodologies, progress etc." (Req. for Rev. at p. 4). However, the parent is requesting direct payment for the paraprofessional service at the Alpha's contracted rate of $65 per hour which, as noted above, must be assessed under the Burlington-Carter standard. Therefore, the lack of evidence put forth regarding the provision of the student's paraprofessional services, and review of the totality of the evidence presented, supports the IHO's finding that the parent failed to meet her burden of proving that the services she obtained privately were appropriate for the student.
C. Compensatory Education and Other Relief
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M., 758 F.3d at 451; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and 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"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; 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"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).
Review of the evidence shows that the IHO correctly denied the parent's request for compensatory education for OT and PT. The parent asserts that the student continues to require OT and PT services (see Parent Ex. A). One page one of the Alpha parent service contract there is a statement that the student was entitled to receive, among other services, OT and PT, and that the agency would "make every effort to implement the recommended services" during the 2023-24 school year (Parent Ex. C at p. 1). On the next page of the contract, signed by the parent on May 13, 2024 near the end of the 2023-24 school year, the contract states that the parent understood that Alpha "intend[ed] to provide the following services for the 2023-24 school year" and listed only paraprofessional services at $65 per hour (id. at p. 2). There is no explanation in the hearing record as to why Alpha agree to but did not deliver OT and PT to the student during the 2023-24 school year, or any indication that the parent attempted to otherwise obtain those services for the student (see Tr. pp. 1-48; Parent Exs. A-E; Dist. Ex. 3). The IHO found the evidence in the record did not support parent's request for compensatory education services and that appropriate relief was to direct the CSE to reconvene and develop new programming for the student with current information about his needs. I find insufficient basis to disturb the IHO's determination of appropriate relief.
VII. Conclusion
Having found that the IHO correctly denied the parent's requests for relief, the necessary inquiry is at an end. The district is reminded of its obligation to conduct an evaluation/assessment of the student within 30 days of the IHO's order and reconvene a CSE to develop an IESP for the student within 15 days of the completion of the updated evaluations/assessments.
I have considered the parties' remaining contentions and find I need not address them in light of my determinations herein.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Footnotes
[1] The student's eligibility for special education as a student a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[2] Alpha has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[3] During the September 5, 2024 hearing, the IHO acknowledged that the district filed a motion to dismiss and requested the parties summarize their arguments on the record (Tr. pp. 7-10; see also IHO Exs. I; III). The IHO denied the district's motion to dismiss for lack of subject matter jurisdiction (Tr. pp. 10-11).
[4] The parent attached an April 2021 IESP with the request for review and requested that the SRO add the IESP to the hearing record. The parent asserts that the district would not be prejudice by the inclusion of the exhibit because the district was aware of the program as it developed the IESP (Req. for Rev. at p. 3). The district argues that the exhibit should not be entered because the exhibit was available at the time of the hearing.
[5] The parent notes that the district provided the student's speech-language therapy through Related Service Authorizations.
[6] By the time the due process complaint notice had been filed in July 2024, the school year for which the parent is seeking direct funding for unilaterally obtained services, the 2023-24 school year had already concluded. During the time period at issue in this proceeding there was no evidence of notice that the parent would be seeking the costs of privately obtained services at public expense at all.
[7] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).
[8] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[9] For the first time on appeal, the parent submitted the student's April 29, 2021 IESP with the request for review, which indicated that the parent participated in the 2021 meeting (see SRO Ex. A). Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of the Dep't of Educ., Appeal No. 08-024; Application of a Student with a Disability, Appeal No. 08-003; Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 06-040; Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068). Here, the parent did not indicate why she was alleging in her complaint that the 2017 IEP was the most recent IESP for the student or why the 2021 IESP was not offered during the impartial hearing. Therefore, I decline to admit the evidence. Even if it were admitted it would not alter the outcome of this decision.
[10] State law provides that the parent has the obligation to establish that a unilateral placement is appropriate, which in this case is the special education that the parent obtained from Alpha Support Services (Educ. Law § 4404[1][c]).