NY IHO #527893: New York City... | Special Education Law

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In the Matter of an Impartial Hearing pursuant to Part 200 of the Regulations of the Commissioner of Education

-against-

Findings of Fact

The New York City Department of Education Case # 185912

Procedural Context

By letter dated August 26, 2019 I was appointed to hear the Matter of pursuant to the IDEA, 20 US Code §1415 (f)(1). In furtherance thereof, a pre-hearing conference was held on September 27, 2019 for the purpose of developing a litigation calendar and framing the issues, where possible. On December 17, 2019; February 20, 2020; March 19, 2020; May 14, 2020; July 9, 2020 and July 16, 2020 the matter was continued. On the latter date, the proceedings were closed and the compliance date duly extended to July 23, 2020.

Prior to the commencement of the within action, it became clear that the Department of Education would not be producing any witnesses or evidence, therefore conceding prong one consistent with Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985].

Specifically, the Parent solely asserts that the Department of Education failed to provide the educational services mandated in the December 12, 2018 IESP. Exh. C. Specifically, the child is mandated to receive four periods of SETSS per week. Having not provided these services, the Department of Education stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3]. Exhs. A. As a result, the only issue in this matter concerns the appropriateness of the provider services privately obtained by the Parents and reimbursement for same. Relying upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993) and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985], the Parent maintains that the related services obtained were both suitable and appropriate for her child. Exh. A. As a corollary, the Parent contends that there are no equitable factors which militate against her right to relief. As a result, thereof, they are seeking payment for the SETSS services obtained during the 2019-2020 school year.

It should be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses and mutually available dates. At the commencement of the 2019-2020 school year, the student was years old. I note that is “a child with a disability” as that term is defined under the IDEA, 20 U.S.C. § 1400 et seq., and is classified as “learning disabled” as that term is defined by 20 U.S.C. § 1401(a)(1). A list of persons in attendance and of evidence is appended hereto.

Summary of the Facts

The record is clear that the IESP of December 12, 2018 recommended various related services for this child. is learning disabled. Exh. C at^[1] 1. The parties agree that requires the services set forth in this IESP but have not furnished them. The Parent was given a directory of related service providers. Although she contacted a number of individuals, no one was available or willing to work with the Department of Education at its reimbursement rates. Exh. E. As a result, the Parent contacted an administrator from , her son’s school in order to identify an appropriate SETSS provider who could work with her son.

In response, the Parent was directed by to . Tr. at 27. Asa result, the Parent secured the services of , a tutorial agency providing supportive educational services and began receiving intervention as of November 4, 2019. Specifically, both and began providing SETSS services to the student. Both Mr. and are duly licensed educators in the state of New York. Exh. F. Mr. provided math instruction to the student and, as a result, ’s grades initially progressed to passing levels. In English language arts, Mr. worked with the student and raised his scores to the mid-80’s. Tr. at 54-55. Although services continued throughout the pandemic, the student’s scores slipped, but did not return to pre-intervention levels.

The record indicates that both Mr. Mr. ’s instruction is supervised by personnel at to ensure instructional integrity and appropriateness of methodology. Bi-weekly team meetings additionally ensure communication among staff members so that collaboration among all is facilitated. Finally, indicated that administrators from are in frequent contact with the Parents to discuss progress and expectations.

Review of the Law

It is clear that the legislative intent of 20 US Code Section 1412 of the Individuals with Disabilities ‘Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible. ( 20 U.E.M.Sx.1400 [d][1][A]; see , Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2 Cir. 1987)]. A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability.(20 U.E.M. 1401(11); 34 C.F.R. 300.340[a]; 8 NYCRR 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction (20 U.E.M. 1414(d)(2)(A); 34 C.F.R. 300.342[a]).

In furtherance of this, a board of education must show (a) that it complied with the procedural

‘It should be noted that, notwithstanding the fact that the within matter does not involve a unilateral transfer, the principles and tenets which direct the adjudication of this matter are the same. The services must be appropriate. Moreover, the Parent retains her equitable responsibility to cooperate. requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 US 176, 206-207 [1982]). The recommended program must also be provided in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

While both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 US at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 US at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel E.M._ v. State Bd. of Educ., 874 F.2d 1036, 1041 [Sth Cir. 1989]; Engwiller_v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93). As the Department essentially defaulted by virtue of its lack of witnesses and evidence, I find that they have not established FAPE.

Discussion

The IESP mandates that should receive four periods of SETSS per week. This was not furnished to the child and, as such, the Department of Education stands in abrogation of its IDEA mandate. By maintaining reimbursement rates which are grossly inconsistent with the prevailing fees, the Department is well aware that many parents will be unable to secure services; a significant portion of those individuals, unknowledgeable about their rights, will simply forego services to the detriment of their own child. Other parents will simply identify their own provider, risking the possibility that reimbursement will not be forthcoming. In the matter at bar, the Parent was compelled to identify her own provider or receive no services. After contacting a number of individuals, none of whom were available at the Department’s prevailing rate, the Parent finally retained a local tutoring agency who could service her child. I find that both Mr. and Mr. credentials are suitable and assisted the student to progress in his studies. Exh. H. Ultimately, when schools closed as a result of the Covid-19 pandemic, services were provided remotely via Zoom. In the absence of any controverting evidence, I find that they were appropriate SETSS provides for during the 2019-2020 school year.

Prong three of Burlington provides that equitable considerations may be considered when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][ii]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).

In furtherance thereof, the IDEA permits the denial or reduction of reimbursement when parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][ii][T]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).

Clearly, the Parent attempted to work cooperatively with the Department of Education. She attended the IESP convene and utilized the Department’s provider directory. When the Department’s directory proved ineffective, the Parent was proactive about locating a provider. In view of the above, I find that there are no equitable factors which militate against the Parent’s right to recovery.

Finally, I am awarding $125.00 per hour. However, such reimbursement cannot be provided in the absence of a duly executed affidavit indicating the child’s actual attendance during the 2019-2020 school year.

Conclusion

The parent’s request is granted in part.

Wherefore, it is hereby ordered that:

Upon submission of a duly executed affidavit of attendance, payment shall be directly made to for SETSS services at the rate of $125.00 per hour. Reimbursement shall be made within forty-five

45) days of ’s affidavit. These payments shall represent the Department of Education’s total liability for SETSS services obtained by during the 2019-2020 school year.

Dated: July 23, 2020

Leak betwinik Slmeleh, Fi'sq. Leah Botwinik Almeleh, Esq. New York State Certified Impartial Hearing Officer

Persons in attendance on December 17, 2019

For the Parents:

Educational Advocate, EASE

parent

For the District: