NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT & DECISION
Case Number: 179047
Student’s Name:
Date of Birth:
District Number:
Hearing Requested by: Parent
Dates of Hearing: November 13, 2018
January 24, 2019
April 1, 2019
August 22, 2019
October 16, 2019
December 12, 2019
January 22, 2020
Actual Record Closed Date:
Hearing Officer: Gary D. Peters, Esq
Novem ber 13, 2018
Attorney Parent
DOE Designee Dept. of Education
January 24, 2019
Attorney Parent
DOE Designee Dept. of Education April 1, 2019
Attorney Parent
DOE Designee Dept. of Education
August 22, 2019
Attorney Parent
DOE Designee Dept. of Education
October 16, 2019
Attorney Parent
DOE Designee Dept. of Education
Decem ber 12, 2019
Attorney Parent
INSERT DOE Designee Dept. of Education
January 22, 2020
Attorney Parent
DOE Designee Dept. of Education
PARENT’S EVIDENCE
A. Impartial Hearing Request 10/29/2018 3 pages
B. IESP 9/25/2017 6 pages
C. Service Affidavit 1/6/2020 1 page
D. Affidavit of 1/6/2020 4 pages
E. Progress Report 11/8/2018 5 pages
INTRODUCTION
On the above date, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. Section 1415(f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case 179047. The hearing was conducted at the Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. The Department of Education, hereinafter referred to as the “DOE” was represented by their Designee and the parent was represented by their Attorney .
BACKGROUND
is a student known to the NYC Department of Education (DOE), Committee on Special Education (CSE) when he qualified for classification as a student with a Learning Disability. Because his parents enrolled him in a parochial school the CSE developed an IESP for The last IESP developed for this student was on 09/25/2017. This IESP recommended:
Special Education Teacher Support Services (SETSS) – 5 times per week (group) in .
Although on page one of the 09/25/2017 IESP it indicates a “Projected Date of Annual Review” as 09/26/2018, this did not occur. Page also reflects psychoeducational testing done in June 2017. Scores are not reported in percentiles or grade equivalency and therefore provide very little guidance for anyone working with
For the current 2018-2019 the DOE not only failed to hold a meeting but failed to implement the SETSS recommendation as it appears on page 4 of the 09/25/2017 IESP. There was no provider at his school when it opened and the parents unilateral efforts to locate an available
SETSS provider ( ) were unsuccessful.
PARENT’S POSITION
is seeking an order to fund the student's SETSS services, five periods a week of SETSS in , individually.
Additionally, to the extent that the pendency was not implemented before November 16, 2018 that the DOE should fund the child's program from the beginning of the school year, which would cover the entire 2018-2019 school year, as the student should be entitled to under the IDEA based upon their IESP.
DOE’S POSITION
The DOE maintained that the provide should not be paid at an “enhanced rate”.
PARENT’S CASE
submiited an affidavit in lieu of testimony and stated that she received her bachelor's degree in Liberal Arts from in 2013; her master's degree in Science from e with a major in Early Childhood Education in 2015. She completed my post masters training in Applied Behavioral Analysis from in 2018 and is awaiting her certification as a Board- Certified Behavior Analyst.
The affiant stated that she is alicensed by New York State as a Special Education teacher and has a Bilingual Extension in . She began her career in education in the year of 2012 as a co-teacher in a mainstream and inclusion class working with students with multiple disabilities.
Thereafter, she was employed at , a camp for children and teens with severe special needs. She worked with children with medical, physical and cognitive delays and cared for their personal and educational needs. Following that in approximately 2014, she was a M aster teacher of a self-contained program called . offers children with learning needs the ability to remain in a mainstream environment, while benefiting from intense Special Education. I also worked as a SETSS provider for the NYCDOE.
is currently employed as the Educational Director at , a private agency that provides special education services including Special Education Teacher Support Services (SETSS) to special education student in the New York City area in mainstream settings. At
, the agency provides one-to-one specialized teaching and advocate for students in their settings. The special education teacher program is comprehensive, individualized and one that uses a very enhanced teacher model. Each student is provivided with the individualized special education instruction he or she needs in order to make appropriate progress.
The affiant stated that she has held her position for 5 years. In her role as Educational Director of , she screens and hires all of the special education teachers, supervisors, consultants and trainers. She also research the latest techniques for teaching children and make sure that we have the supplies needed to meet our students' needs. communicates with the parents to better understand their child's learning needs.
During the intake process, she reviews prospective student evaluations, progress reports, and other clinical materials to determine whether the agency can provide appropriate services. After conducing this extensive review, she assigns an appropriate educator to the student. She ensure that each teacher assigned has the expertise needed for that specific student.
Additionally, in her role as an Educational Director, she works closely with the supervisory team to ensure that the needs of every student and teacher is being met. She also visit the schools where our services are provided and collaborates with the providers and school personnel to address any needs and concerns.
The affiant stated that the rate for these services is $175.00 per hour. She stated that she has communicated with other agencies in the industry to get a better understanding of what other agencies are charging in the field. W e have discussed services offered and the rates of services.
's rate for SETSS/SEIT is within the general market rate for these services in the greater New York City area. The rate includes one-on-one supervision, educational resources and support, professional development and materials, employment taxes, administrative costs and overhead costs.
Additionally, offers monthly professional development training to its providers.
They focus these trainings on special education teaching methods and research-based teaching strategies. employs approximately 150 special education teachers, a team of 8 full-time supervisors and we have a consulting team available including an occupational therapist that specializes in sensory integration, a physical therapy consultant, an academic consultant, consulting psychologists and two Board Certified Behavioral Analysts ("BCBAs").
stated that the 8 full-time educational supervisors are senior educators who supervise the special education teachers and consult on each student. They provide indirect consultation services. They all hold at a minimum of a master's degree in Special Education. Our supervisors have years of classroom and individual teaching experience. The supervisor meets with each special education provider, observes the child in their classroom, reviews the documents provided by the DOE - i.e. the IESP and/or evaluations and decides if the child needs a more formal educational evaluation.
has a library of educational books, resources, games and other instructional materials for parents, provider and students. The library is widely used to not only foster the home-school connection but to help students carry over and maintain the skills that are being worked on with the providers. also supplies text books, specialized learning aids, games, books and many multi-sensory curricular materials.
stated that she is I familiar with a student named as he currently receives special education services with . provided 5 hours per week of Special Education Teacher Support Services ("SETSS") to the Student for the 2018-2019 school year.
was the provider of these services for the 2018-2019 academic school year.
is certified to teach students with disabilities by New York State and is a bilingual provider. is trained and experienced to teach literacy and comprehension to school ages children.
The Educational Supervisor overseeing 's work was . is a certified special education teacher with extensive training in Literacy Instruction, and in managing and supporting students' social-emotional needs. has experience working in both, the general education and special education settings, and as an Elementary school principal.
provides professional development to . Aside from providing direct 1:1 service to the Student, also prepares for sessions, creates goals, writes progress reports, and meets with teachers and parents.
In November of the 2018-2019 school year, The Fountas and Pinnel assessment was conducted and revealed that student is reading on level N and can decode 50 words per minute with 90 percent accuracy, which demonstrates a significant delay.
For the 2018-2019 school year, student received his services in his mainstream school, . Goals were created for the Student to work on during the 2018-2019 school year and were reviewed quarterly. The progress report entered into evidence is an accurate representation of what has been working on with including goals, over the course of the 2018-2019 school year. Services were typically provided in and outside of the classroom; they were individualized sessions that include a great deal of specialized instruction.
Some instructional programs that have been used with the Student include LiPS, multisensory manipulatives and Social thinking. The individual programs used for the Student were identified through a discussion by his provider, direct supervisor and classroom teacher; these programs as the most appropriate programs because struggles with literacy, math and has social needs.
Additionally, the Student's progress has been measured through quarterly assessments, consistent meetings with the provider and support staff, observation of the student in the classroom, and daily session notes. has made significant progress with his SETSS service provider. However, the Student's academic and social delays warrant the need for continued services.
Upon cross examination of this witness. She stated that the 1:1 supervisor is a salaried employee earning $160,000.00 per year. The provider is apid $90.00 per hour; materials, training and assessments are also provided to then student. There is collaroration with all involved to properly meet ’s needs.
At the start of the 2018-2019 school year was evaluated with FountasPinnel and rated at a level “N”; at the end of the school year he was at a level “P”. Other methodologies used by the staff include Orton Gillingham, W ilson Reading and Lindamood Bell.
She also stated that the Providr keeps a log as to all dates of services. She conceded that there were approximately 2 weeks of holidays at the beginning of the school yea, wherei9 services were not provided.
DOE’S CASE
The DOE failed to provide witnesses and or documentary evidence.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This hearing was requested pursuant to the Individuals with Disabilities Education Act (the “IDEA”) (see 20 USC § 1400 et seq.). “Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education… designed to meet their unique needs[and] to ensure that the rights of children with disabilities and parents of such children are protected” (M .H. v. N. Y. C. Dept. of Educ., 685 F3d 217, 223 (2d Cir. 2012) (citing 20 USC §
1400(d)(1)(A)-(B))). Further, “a school district’s program must provide ‘special education and related services[,]’ tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits.” (M .H. v. N.Y.C. Dept. of Educ., supra, at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105,107 (2d Cir. 2007)
(internal citations omitted)).
School districts are required to formulate an Individualized Education Program (IEP) for each student with a disability in order to deliver appropriate services to that child. It is “[t]he centerpiece of the IDEA’s educational delivery system” (M .H., supra, at 224 (quoting D.D. ex rel.
V.D., 465 F3d at 507)). M oreover, “for a child’s IEP to be adequate, it must be “[‘]likely to produce progress… and afford the student with an opportunity greater than mere trivial advancement’” (Id. (quoting T.P. ex rel. S.P. v. M amaroneck Union Free Sch. Dist., 554 F3d 247, 254 (2d Cir. 2009))).
It is fundamental that the CSE’s placement recommendation must be based upon the student’s needs (34 CFR §300.116(b)(2), and that the IEP must be based upon current evaluations (SRO 11-
126 at 20). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” SRO 08-052; SRO 08-060 (citations omitted).
Federal regulations require that, once an IEP is adopted for a disabled child, “[e]ach public agency shall ensure that (1)[a]n IEP ... [i]s implemented as soon as possible following the [IEP]
meeting (D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503, 508 (2d Cir. 2006)
opinion amended on denial of reh'g, 480 F.3d 138 (2d Cir. 2007)). New York State regulations mandate that “there may be no delay in implementing a student's IEP” (8 NYCRR §200.4(e) (1)(i)), that “the school district shall ensure that each student with a disability has an IEP in effect at the beginning of each school year” (8 NYCRR §200.4(e) (1)(ii)), that the “the school district shall ensure that the recommendations on a student’s IEP… are implemented” (8 NYCRR §200.4(e) (3), and that “the school district must provide special education and related services to a student with a disability in accordance with the student's IEP” (8 NYCRR §200.4(e) (7)). The IEP of each student with a disability shall be reviewed and, if appropriate, revised periodically, but not less than annually, to determine if the annual goals for the student are being achieved. (8 NYCRR §200.4 (f))
Here, the DOE did not meet its burden of demonstrating that it provided with a FAPE.
First and foremost, the DOE failed to provide the child with SETSS services and failed to produce an IEP for the school year in dispute. The DOE presented no witnesses and did not rebut any of the Parent’s evidence.
The equities favor the Parents; a parent must act with a high level of “unreasonableness or misconduct” in order for such conduct to raise an equitable bar to relief. N.R. ex rel. T.R. v.
Department of Educ. of City School Dist. of City, 2009 W L 874061 (S.D.N.Y.). In the absence of evidence demonstrating that the Parent failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support an equitable remedy sought by the Parents. Id. Further, the notion of equities requires a balancing of both parties’ conduct and interest. Wolfe v. Taconic Hills Central School District, 167
F.Supp.2d 530 (N.D.N.Y. 2001); SRO No. 04-045 (balancing the cooperation of the parents and the significant extent to which district failed to offer a FAPE, reimbursement was awarded).
The DOE bore the burden of proof regarding equities. Application of a Student with a Disability, Appeal No. 13-200; N.Y. Educ. Law § 4404(1)(c). In this case, the DOE provided no evidence demonstrating lack of cooperation on the part of the Parents.
It is undisputed that the CSE failed to hold an annual review for for the 2018-2019 school year. As State law mandates that an IESP be developed “in the same manner” as an IEP (Educ. Law 3602-c[2][b][1]). 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.”
The CSE ailed to create a procedurally and substantively valid IESP for the 2018- 2019 school year; failed to recognize this student’s need for 1:1 SETSS.
Given the complexity and severity of ’s learning needs coupled with the recommendations of her teachers and parents the DOE failed to offer her individual SETSS. There was nothing before the 06/09/2016 review team that could justify the provision of this service in a group setting.
The CSE failed to implement the 5 periods of SETSS ( ) as it appears in the last agreed to IESP dated 09/25/2017. W hile the statutory scheme of Education Law section 3602-c places the responsibility of selecting and placing the student in a nonpublic school on the parent, the implementation of the services called for by a student's IESP falls on the district insofar as "[b]oards 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]). (See Application of a Student with a Disability… SRO Decision # 17-034 )
In summary, these multiple failures on the part of the DOE is a denial of equitable services that is entitled to pursuant to NYS Education Law Section 3206-c, and a denial to his parents of an opportunity for meaningful participation in the development of an educational program for their child.
Due to the DOE’s failure to create an IEP for the 2018-2019 school year I agree with the Parent that maintain that ’s pendency placement is the last agreed to IESP created for her on
09/25/2017 which mandates 5 periods of SETSS ( ). As a result of the district’s failure to adhere to Federal Law and New York State Regulations, by not conducting evaluations, holding a review meeting, creating an IEP and implementing the last agreed to 09/25/2017 IESP, I find that the parents are awarded the equitable relief of: Directly funding of 5 periods of individual SETSS ( ) through the SETSS Agency, “ ” with offices at , at an enhanced rate retroactive to the first day of the 2018-2019 school year. As there is no group SETSS provider available or offered by the DOE, and the mandate of group has been determined to mean the maximum number of students permissible with no indication of the minimum size, I agree that 1:1 SETSS is appropriate for
After considering all the evidence I order that DOE:
1. Fund the student's SETSS services, five periods a week of SETSS in , individually at an enhanced rate of $175.00 hour.
Additionally, to the extent that the pendency was not implemented before October 19th, 2018, that the DOE should fund the child's program from the beginning of the school year, which would cover the entire 2018-2019 school year, as the student should be entitled to under the IDEA based upon their IESP.
Dated: February 6, 2020
Gary D. Peters
Gary D. Peters
Impartial Hearing Officer
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.” (8NYCRR279.2 [b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.