New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No: 185905

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parents

Record Closed Date: September 21, 2020

Hearing Officer: Diane Cohen, Esq. Findings of Fact and Decision Case No. 185905

On January 6, 2020, I was appointed hearing officer pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1 ), in this matter, after the recusal of the prior hearing officer. The Parents had filed a hearing request, dated August 25, 2019, in which they asserted that the New York City Department of Education (the “DOE”) had failed to offer a free appropriate public education for the 2019-2020 school year. We convened on February 6, 2020 to address the Parents’ request for pendency services. The parties disagreed with whether the Student should be receiving pendency services, as the Student had been declassified in a prior year. We scheduled a hearing on the merits. The

Student was receiving services through a private provider and the issue for the hearing was whether to fund that provider. Both payment for the pendency services (if applicable) and the issue on the merits could be decided in a findings of fact and decision. A hearing was scheduled for February 26, 2020.

The Parents requested an adjournment of the February 26, 2020 hearing date, due to medical reasons related to the advocate. The DOE did not object. We rescheduled the hearing for March 24, 2020.

The Parents submitted an amended hearing request on March 3, 2020.

The DOE accepted the amended request. The timelines began anew, and the new resolution period was April 9, 2020.

We convened on April 15, 2020 and scheduled a hearing for May 13, 2020. The Parents requested an adjournment of the May 13, 2020 hearing. The

DOE did not object.

We agreed to revisit the pendency issue on May 22, 2020, in light of the issuance of a findings of fact and decision by another hearing officer on December 22, 2019, relating to the 2018-2019 school year. The DOE has not stated that the findings of fact and decision was appealed (See Tr. 57). I will therefore assume that it was not appealed and serves as the basis for pendency.

I did not issue an interim order on pendency, as the cost of the services needed to be established. We could have completed the case on the merits in February or March, and determined the issues on pendency and the merits, had the parents not requested two adjournments. Even later, after the filing of the Findings of Fact and Decision amended hearing request, we could have completed the hearing in May had the Parents not requested two additional adjournments.

We convened on June 4, 2020 to address the issue on the merits. The

DOE presented its case that day.

A hearing was scheduled for July 2, 2020, for the Parents’ case. The

Parents’ witness was not available that day. We rescheduled the hearing for July

20, 2020.

The Parents began their case on July 20, 2020. We scheduled a continuation of the case for August 13, 2020. On that date, the Father did not call in and we could not proceed.

We scheduled another hearing date for September 3, 2020. We completed the hearing on that date.

The parties requested several extensions of the date my decision was due (the “Decision Date”). I granted those requests and extended the Decision Date in each case. In doing so, I noted that the Student was receiving services from a provider, and the only issue was payment to the provider. The Parents were the ones making the adjournment requests, and any delay in payment was due to their own actions. The last extension brought the Decision Date to October 21, 2020.

APPLICABLE STANDARDS

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (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 (20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982)); Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 69 IDELR 174 (Mar. 22 2017). A FAPE is 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 Findings of Fact and Decision IDEA's procedures is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Rowley; Endrew F.

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 M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010)).

FINDINGS OF FACT

A hearing officer issued a findings of fact and decision, dated December 22, 2019, with respect to the 2018-2019 school year (Exh. E). He found that the Student was entitled to four hours per week of special education teacher support services (“SETSS”) for that school year. Thus, any declassification made by the DOE during the prior school year (on April 10, 2018), is irrelevant, as the most recent program is the one mandated by the findings of fact and decision.

The DOE witness testified that on March 2019, the DOE created a social history notice because the Parent had requested an evaluation. Three notices were sent (Tr. 96 – 97). The DOE did not receive consent to evaluate the Student (Tr. 98).

The DOE sent the first social history update notice on March 4, 2019, to the Parents at (Exh. 6).

The DOE sent the second social history update notice on March 19, 2019, to the Parents at (Exh. 7). The Parents’ address, however, is apartment 1, not 6A (Tr. 164). There are, however, only two apartments in the house (Tr. 165).

The DOE sent the third social history update notice on March 29, 2019, to , (Exh. 8). The apartment was left off that notice.

On March 29, a SESIS entry indicates that one of the letters (presumably the March 4, 2019 letter) had been returned. contacted the Mother who reported that the family had moved three years ago. The new address was updated, and the Parent was reminded that in the future she should notify the DOE of any Findings of Fact and Decision phone or address changes (Exh. 2, p. 1). Oddly, this entry was made on March 29, 2019, although the DOE had already sent out a second notice to the new address on March 19, 2019.

The DOE closed the case because they had made two attempts and there was no response from the Parents (Tr. 108).

Dina Benanti from the DOE contacted the Parent on September 12, 2019, regarding a resolution of the matter. The Parent stated that she would send a letter to reopen the case (Exh. 2, p. 1).

The Parents arranged for four periods of SETSS per week from

(“ ”). is requesting $125 per hour (Exh. I). pays its provider $80 per hour, plus an additional 10% (approximately), for such services.

Thus, the remainder -- $37 -- per hour goes to the agency for supervision and other items.

CONCLUSIONS OF LAW

Pendency

The Parents have requested an order on pendency in this matter. The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415(j); Educ. Law §§ 4404(4), 4410(7)(c); 34 C.F.R.

§300.518[a]; 8 NYCRR 200.5(m). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 (1987); Evans v. Bd. of Educ., 921 F. Supp. 1184, 1187 (S.D.N.Y. 1996), citing Bd. of Educ. v. Ambach, 612 F. Supp. 230, 233 (E.D.N.Y.

1985)). Under the IDEA, the pendency inquiry focuses on identifying the student's then current educational placement. Although not defined by statute, the phrase "then current placement" has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced (Murphy v. Bd. of Educ ., 86 F. Supp. 2d 354, 359

(S.D.N.Y. 2000) aff'd, 297 F.3d 195 (2002); Application of a Student with a Disability, Findings of Fact and Decision Appeal No. 08-107; Application of a Child with a Disability, Appeal No. 01-013; Application of the Bd. of Educ., Appeal No. 00-073). The U.S. Department of Education has opined that a student's then current placement would "generally be taken to mean current special education and related services provided in accordance with a child's most recent (IEP)" (Letter to Baugh, 211 IDELR 481 [OSEP 1987]; see Susquenita Sch. Dist. v. Raelee , 96 F.3d 78, 83 [3d Cir. 1996]). A prior unappealed impartial hearing officer's decision may establish a student's current educational placement for purposes of pendency (Student X , 2008 WL 4890440 at *23; Letter to Hampden, 49 IDELR 197 (OSEP 2007); Application of a Student with a Disability, Appeal No. 08-107; Application of a Student with a Disability, Appeal No. 08050; Application of the Dep't of Educ., Appeal No. 08-009; Application of the Dep't of Educ .,

Appeal No. 07-140; Application of the Dep't of Educ ., Appeal No. 07-134).

In the instant case, a hearing officer issued a findings of fact and decision, dated December 22, 2019, with respect to the 2018-2019 school year. He found that the Student was entitled to four hours per week of SETSS. I therefore find that the Student is entitled to pendency for four periods of SETSS as of December 22, 2019, and throughout the pendency of these proceedings. Although the hearing officer in that case ordered payment in the amount of $150 per hour for the services the Parents obtained, I do not believe that is part of the pendency program – nor is the provider requesting that rate. The pendency program is the generic program. I will determine the rate for the pendency services in my determination below.

2019-2020 school year

The Parents have not asserted that the Student requires any more than the four periods of SETSS per week which the hearing officer ordered for the 2018-2019 school year. The fact that the Student had been previously declassified during the prior school year (on April 10, 2018), is no longer relevant, as that unappealed decision establishes the Student’s new program. As the Student was not subsequently evaluated and no new program was developed for the Student, the Student continues to be entitled to the previous services of four periods per week of SETSS. Although the DOE asserts that the Parents did not respond to their requests for consent to evaluate and to convene for a social update, the Parents state that they did not receive the letters from the DOE. Two of those letters were sent to the correct address, but Findings of Fact and Decision without the correct apartment number. Nevertheless, it defies reason to believe that two letters would both not have been received by the Parents if mailed to the correct address – when the residence consists of only a two family house. Nevertheless, despite the fact that the Parents did not appear for a social history or to provide consent to evaluate, the Student continues to be eligible for services pursuant to the last agreed upon program – the order of the hearing officer on December 22, 2019.

While it is true that during the 2019-2020 school year, prior to the issuance of the findings of fact and decision, dated December 22, 2019, the Student had been declassified and the Parents had not responded to the notices of social history – I believe it would be inconsistent with the findings of fact and decision of the prior hearing officer to hold that the ineligibility document, dated April 10, 2018, validly declassified the Student for the 2019-2020 school year, when a hearing officer has now found that the Student was entitled to services for the 2018-2019 school year.

The Parents are requesting $125 per hour for the services provided. The DOE objects to that rate. I do not find $125 per hour to be excessive in this case.

ORDER

I THEREFORE ORDER that the DOE shall fund the provision of SETSS to the Student for the 2019-2020 school year in the amount of four hours per week of SETSS at a rate of up to $125 per hour upon receipt of documentation showing that such services were provided and the date of services.

I FURTHER ORDER that, unless a new evaluation has already been performed, that the DOE shall promptly arrange for a new evaluation of the Student, within 30 days of the date hereof (or as soon as social distancing rules allow), including at least a psycho-educational evaluation, a classroom observation during

English class, and an observation of the provision of SETSS. The DOE shall document all attempts to arrange for such evaluation with the Parents.

I FURTHER ORDER that, unless a new individualized education program (“IEP”) or individualized education services program (“IESP”) has already been developed, that the Committee on Special Education shall convene within two weeks of the completion of an evaluation to develop an IEP or IESP at the option of the Findings of Fact and Decision Parents. Unless a new IEP or IESP has already been developed, and until such time, the Students’ IEP shall provide for four periods of SETSS per week.

Date: September 21, 2020

DIANE COHEN, ESQ.

Impartial Hearing Officer Findings of Fact and Decision NOTICE OF RIGHT TO APPEAL Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act. If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed. An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov Findings of Fact and Decision

DOCUMENTATION

Parent Exhibits

A. Hearing Request, 8/25/19, 5 pages

B. Retainer Agreement, 8/19/19, 2 pages

C. IEP, 9/3/14, 17 pages

D. Amended Hearing Request, 3/3/20, 5 pages

E. Findings of Fact and Decision, 12/22/19, 6 pages

F. IESP, 3/31/15, 9 pages

G. Parent Outreach, 2019-2020, 1 page

H. Provider’s Certificate, Undated, 1 page

I. Affidavit of Services, 3/22/20, 1 page

J. Authorization for SETSS, 8/24/20, 2 pages

DOE Exhibits

1. Ineligible for Special Education Services Document, 4/10/18, 2 pages

2. SESIS Events Log, 12/12/14 – 9/12/19, 4 pages

3. SESIS Documents, 4/10/18 – 4/11/19, 1 page

4. IESP, 3/31/15, 12 pages

5. [Intentionally Omitted]

6. Notice of Social History, 3/4/19, 2 pages

7. Notice of Social History, 3/19/19, 2 pages

8. Notice of Social History, 3/29/19, 2 pages

IHO Exhibits

I. Email from IHO to parties, setting record closed date, 9/20/20, 1 page

Findings of Fact and Decision

WITNESS TESTIMONY:

DOE WITNESSES:

, Social Worker (By Tel. on 6/4/20)

PARENT WITNESSES:

Father (By Tel. on 7/20/20)

, Program Dir. at (By Tel. on 9/3/20)