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FINDINGS OF FACT AND DECISION
Case Number: 184847
Student’s Name:
District Number:
Hearing Requested by: Parent
Dates of Hearing:
April 22, 2020
June 22, 2020
July 24, 2020
Record Closed Date: November 8, 2020
Hearing Officer: Gary D. Peters, Esq.
INTRODUCTION
On July 1, 2019, the Parents (the "Parents") of (the "Student") filed a due process complaint under the Individuals with Disabilities Education Act (the "IDEA") [20 U.S.C.
section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the "DOE"). I was appointed as impartial hearing officer ("IHO") on August 15,209 .
Lists of the hearing dates, the persons who appeared at the hearings, and the documentary evidence submitted are appended to this Order.
NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 22,2020
Advocate — Parents
DOE Rep. — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 22, 2020
Advocate Educational Director — Parents
DOE Rep. — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JULY 24,2020
Advocate Educational Director — Parents
DOE
Rep. — DOE
DOCUMENTS ENTERED INTO THE RECORD
PARENT’S EVIDENCE
A. Hearing Request, 7/1/19, 4 pp.
B. Program Description, undated, 12 pp.
C. Services Affidavit, 6/20/19, 1 p
D. Intentionally Omitted
E. Progress Report, April 16, 2017, 5 pp
F. Parent Outreach , 2017/2018, 1p.
G. Provider License undated, 2 pp
H. Affidavit in lieu of Testimony 6/21/20, 5pp.
I. IESP, 8/26/18, 18 pp
DOE’S EVIDENCE
None
INTRODUCTION
On the above dates, 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 184847. The hearings were held either remotely or at the impartial hearing office, New York City Department of Education, at 131 Livingston Street, Brooklyn, New York. At the hearing, their Advocate represented the Parents/Student; , DOE Designee represented the Department of
Education.
THE DOE’S POSITION
The DOE presented no witnesses and rested.
PARENT’S POSITION
Parent is seeking funding for the student's SETSS services from September of 2017 though the end of June 2018 at the rate of $150.00 per hour.
BACKGROUND
is a who is a student with a disability and is classified as speech/ language impaired. He is entitled to a special education program including SETSS, 8 times per week in a separate location pursuant to an IESP dated 8/26/16 for the 2017 2018 school year.
THE PARENT’S POSITION
On 8/16/17 the CSE convened to create an IEP/IESP for the student. The parent maintains that the IESP created is procedurally and substantively flawed and that the student is being denied a FAPE for the 2017-2018 school year.
The Parent also referred to as asserts that the DOE failed to develop an IESP for the 2017-2018 school year for her daughter in the same manner and with the same contents as is developed for students within the NYCDOE. The DOE may have failed to ensure that ’s representative from the nonpublic school she attends, and/or her current special education teacher, and/or her related service provider was included in the meeting when her IESP was developed.
claims that for the 2017-2018 school year the DOE failed to schedule a timely annual review meeting and develop an appropriate IESP for this student.
Furthermore, the parents have attempted to locate a SETSS provider but have not found a licensed and bilingual special education teacher willing to work with the student at the DOE's rate of $41.98 per hour. Parent is seeking an award for SETSS at an enhanced rate in .
THE DOE’S CASE
The DOE failed to provide any evidence or witnesses and rested.
PARENT’S CASE
The Parent testified that for the 2017/2018 school year, her son was recommended to receive eight periods per week of bilingual special education services. She attempted to locate a DOE teacher to provide SETSS services. The Parent stated that she received a list of teachers from the DOE with teacher names and phone numbers. She called them and “they all were not available”. After she determined that a DOE teacher was not available, she became aware of the “ ” agency and called them.
The Parent stated that she provided the agency with the current IESP for her son; the agency provided a Special Education Teacher Support Services in bilingual . Her son made academic progress in working with the provider. He improved in focusing, which helped him improve in reading comprehension and math.
submitted an affidavit in lieu of testimony. She stated that she is the Educational Director at , a private agency that provides special education services, including SETSS, to special education students in the New York City who are placed in a mainstream setting. The affiant stated that “we provide one-to-one specialized teaching and advocate for students in their settings; the special education teacher program is a comprehensive, individualized program that is research-based”. Each student receives individualized special education instruction that he or she needs in order to make appropriate progress. She stated that she has been the Educational Director for five (5) years; in her role as Educational Director, she hires all of the special education teachers, supervisors, consultants and trainers. She also researches the latest techniques for teaching children, and makes sure that “we have the supplies they need to meet our students' needs”. She communicates with the parents to better understand their childrern’s learning needs. During the intake process, she reviews prospective student evaluations, progress reports, and other clinical materials to determine if the agency can provide appropriate services. After conducting the review, she assigns an appropriate educator to the student.
The rate for “ 's” services is $175.00 per hour. She has communicated with other agencies in the industry to get a better understanding of what other agencies charge in our field. “ 's” rate for SETSS services is within the general market rate for the services in the greater New York City area. The rate includes one-to-one supervision, educational resources, professional development and materials, employment taxes, administrative costs, and overhead.
“ ” offers monthly professional development training to its providers. The training addresses special education teaching methods and research-based teaching strategies. The agency supplies text hooks, specialized learning aids, books and multi-sensory materials.
The witness was familiar with and stated that he was classified with a Speech/Language
Impairment. He struggled in all academic areas and had a difficult time applying himself. He also had difficulties with executive functioning skills and abilities to work in a group.
, a NYS certified special education teacher was assigned to work with He is a Board certified Behavioral Analyst with extensive experience working with students who require academic and social emotional supports. The Educational Supervisor overseeing
's work is who is a NYS certified bilingual special education teacher with many years of experience in working with students in both general education and special education settings. “ ” provided professional development to Abraham Safril. In addition to providing direct one-to-one services, he also “prepared for sessions, creates goals, writes progress reports," and meets with teachers and parents.
was paid $95.00 per hour for his work with the Student. The difference between the rate charged by the agency and the payment to the providers is the result of many of the items; weekly supervisions, profession development, educational resources, employment taxes and administrative overhead costs. Math, Writing and language skills are assessed by teacher/parent interviews, observations, and informal assessment tools. The Student's provider, supervisor, and teacher identified programs which are most appropriate for him as he struggled with academic, social and emotional concepts. 's progress was measured through quarterly assessments and progress reports, consistent meetings with the provider and support staff, observation of the Student in the classroom, and daily session notes The Student has shown slow and steady progress with his SETS service provider. However, due to his significant delays in all academic areas, he continues to require SETSS 8times per week in a 1:1 setting. The estimated amount charged for these services from September 5, 2018 through June 30, 2019 would be $56,000.00, based on 40 weeks of service, 8 hours per week, at a rate of $175.00 per hour.
Parent’s Advocate is seeking the sum of $150.00 per hour.
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)). Moreover, “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. Mamaroneck 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).
Once it has been determined that a student has been denied a FAPE, hearing officers have broad equitable powers to fashion a remedy that is appropriate to address the student’s needs, based upon the unique facts of the case. Application of a Student with a Disability, Appeal No.
08-052 at p. 17-18 (July 16, 2008). “Compensatory education awards are based upon finding of the denial of FAPE, and they require additional services, beyond the prospective entitlement to an appropriate educational program, to address deficits caused by delay or failure to offer educational services to an eligible child.” Terry Jean Seligmann & Perry A. Zirkel, Compensatory Education for IDEA Violations: The Silly Putty of Remedies, 45 Urb. Law. 281, 282 (Winter 2013) (citing Perry A. Zirkel, The Remedial Authority of Hearing and Review Officers under the Individuals with Disabilities Education Act: An Update, 31 J. Nat’l Ass’n Admin. L. Judiciary 1 (2011).
The DOE bears the burden of proof on all matters at this hearing (see N.Y. Education Law §4404[1][c]; M.H. v.N.Y.C. Dept. of Educ., 685 F3d 217, 224-25[2d Cir 2012]). It has both the burden of production and the burden of persuasion on each of the claims put forth by the parent (see Schaffer v. West, 546 US 49 [2005]; M.P.G. v. N.Y.C. Dept. of Educ., 2010 WL 3398256 at *7 [SDNY Aug. 27, 2010]). The DOE bears “the burden of demonstrating the appropriateness of its proposed IEP” (Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 377, 379 [2d Cir. 2003]).
In New York, the school district must carry the burden of proving that its recommended program provides the student with a free appropriate public education (FAPE). Ed. Law
4404(1)(c). The SRO has held that when the school district fails to present any testimonial or documentary evidence at the impartial hearing, the school district failed to meet its burden. SRO
15-033. The SRO has held that when the school district fails to present any testimonial or documentary evidence at the impartial hearing, the school district failed to meet its burden. SRO
15-033.
Here, the DOE failed to meet its burden when it failed to present any documentary or testimonial evidence to show it provided the Student a FAPE. At the hearing, the DOE rested its case without providing any evidence. Therefore, it failed to meet its burden in showing that the DOE provided the Student a FAPE.
After the IHO determines that the DOE failed to meet its burden, all that is left to determine is the appropriate remedy in this matter. It is the DOE’s burden to produce all proof in this matter. Ed. Law 4404(1)(c). The SRO has held that when the District fails to present a case, the burden is on the District, not the Parent, to present evidence as to the appropriate remedy. SRO 14-014.
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 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))
State regulations require that an IEP include a recommendation for special education program and services (8 N.Y.C.R.R. 200.4(d)(2)(v)). Special education means specially designed individualized or group instruction or special services or programs… and special transportation, provided at no cost to the parent, to meet the unique needs of students with disabilities. 8 N.Y.C.R.R. 200.1(ww).The regulations emphasize that:The individual needs of a student shall be determined by a committee on special education in accordance with the provisions of section
200.4 of this Part upon consideration of the present levels of performance and expected learning outcomes of the student. Such individual-need determinations shall provide the basis for written annual goals, direction for the provision of appropriate educational programs and services and development of an individualized education program for the student. 8 NYCRR
200.1(ww)(3)(ii)).
The DOE failed to provide this this Student a program that would allow him to make meaningful progress and this deprived the Student of a FAPE.
After considering all the evidence, I find and order as follows:
1. That the DOE is to pay to the order of for SETSS at a rate not to exceed $150.00 per hour for the 2017-2018 SY within 30 days of receipt of an itemized invoice in a form acceptable to the DOE.
Dated: November 6, 2020
Gary D. Peters, Esq.
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.