New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 186245

Student's Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: September 20, 2019

October 25, 2019

November 27, 2019

January 3, 2020

February 26, 2020

Hearing Officer: Dora M. Lassinger

Record Closed Date: March 11, 2010

The parent of requested an impartial hearing on August 30, 2019 alleging a denial of FAPE for the 2017-2018, 2018-2019 and 2019-2020 school years, and requesting an independent neuropsychological evaluation and pendency services. An amended complaint was filed on November 14, 2019, adding a request for compensatory services. I was designated to hear this matter on September 5, 2019, after the prior hearing officer recused. A pendency hearing was held on September 20, 2019.

By agreement of both parties, I ordered that effective August 30, 2019, and during the pendency of all due process proceedings, the Department of Education (“DOE”) shall continue to provide the student with the following services:

1. Special Education Teacher Support Services (“SETSS”), five periods per week, group service;

2. Speech/Language Therapy (“SLT”) , twice per week for thirty minute sessions, individually. (IHO Ex. I).

Department of Education (“DOE”) Position

The DOE did not present any evidence at the hearing or take a position with respect to any of the relief requested at the hearing. (Tr. p. 31).

Evidence at Hearing

The student is a first grade student at , a private Catholic school in Brooklyn. (Par. Ex. E; Tr. p. 34).

In an affidavit dated February 26, 2020, the student’s father stated that the student received services as a preschooler, and that her last IESP was developed on April 6, 2017, when the student became school age. That IESP provided for SETSS five periods per week (group service) and SLT twice per week for thirty minute sessions individually. The parent stated that the services recommended were insufficient, and that his daughter failed to meaningfully progress during the three school years at issue. (Par. Ex. B, E).

At the hearing, the father testified that from the period of September 2017 until March 2018, the student did not receive SETSS. (Tr. p. 33). Since March 2018, she has been receiving SETSS . (Tr. p. 34). She also receives SLT. (Par. Ex. F2).

A psychoeducational evaluation was performed on November 25, 2019. The student performed in the Low range (1st percentile) on a test of cognitive functioning. Her reading skills were significantly below age expectancy; and her math and spelling scores were below grade expectancy. (Par Ex. D).

In an affidavit dated February 25, 2020, , the director of , wrote that employs certified special education teachers, and provides instruction in for students aged 5 to 21. She wrote that began providing SETSS to the student in September 2019. She wrote that the student repeated kindergarten twice due to poor academic progress.

, the teacher from assigned to this student, is a certified special education teacher. She is working on phonics, letter sound recognition, blending sounds, understanding place value and addition and subtraction. She reported that the student has progressed in learning the alphabet and identifying numbers and counting.

provides special education services to school age children at the rate of $150.00 per hour.

wrote that this rate is consistent with rates charged in the New York City area. (Par. Ex.

F).

At the hearing, the parent requested the following relief:

1. An order that the pendency services previously ordered continue for the duration of the 2019-2020 school year;

2. That the DOE fund an independent evaluation of the student at a rate not to exceed $5,000;

And that the CSE reconvene following the completion of the evaluation;

3. That the DOE provide compensatory services consisting of 360 hours of one-to-one instruction for the denial of FAPE during the three school years in question. (Tr. pp. 30-31).

Findings of Fact, Conclusions of Law and Order

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). In these proceedings, it is undisputed that the DOE did not prepare an IESP for either the 2018-2019 or the 2019-2020 school years. The parent’s testimony that the student did not receive SETSS for a six month period during the 2017-2018 school year was not disputed.

Education Law § 3602c[2][b][1] provides as follows:

“ For the purpose of obtaining education for students with disabilities, as defined in paragraph d of subdivision one of this section, such request shall be reviewed by the committee on special education of the school district of location, which shall develop an individualized education service program for the student based on the student's individual needs in the same manner and with the same contents as an individualized education program. The committee on special education shall 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. Review 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 section forty-four hundred four of this chapter.”

The student’s entitlement to special education services, on-site at her private school, arises under Education Law § 3602c[2][b][1], and not under the Individuals with Disabilities Education Act, which creates no individual entitlement. Application of the School District, 09-115; See Bay Shore Union Free School District v. Kain, 485 F. 3d 730 (2d Cir. 2007).

A guidance memorandum from the State Education Department, dated September 2007, titled “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” (hereinafter referred to as “the Memorandum”) explains school district responsibilities under 3602-c of the Education Law. According to the Memorandum, “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”.

Request for Compensatory Tutoring

In P. v. Newington Board of Education, 546 F. 3d 111 (2d Cir. 2008), the Second Circuit held that upon a finding of a denial of FAPE, a hearing officer may fashion an appropriate remedy, including compensatory education to make up for a denial of FAPE. Citing Parents of Student W. v. Puyalluip Sch. Dist. 31 F. 3d 1489 (9th Cir. 1994), the Second Circuit stated that “appropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA”. P. v. Newington Board of Education, supra. Compensatory awards should place children in the position they would have been in but for the violation of the Act. See Application of a Student with a Disability. No. 18-010.

The parent’s testimony that the student missed six months of SETSS from September 2017 to March 2018 was not contradicted by the DOE. Therefore, I find that the student is entitled to be compensated for the missed SETSS which I calculate to be 120 sessions.

As a parentally placed student, the student is not entitled to receive a FAPE; but only services comparable to other students with disabilities attending schools within the district. See

Application of the School District, 09-115. I do not find that the facts warrant any further compensatory relief. Even though the CSE failed to develop IESP’s for the 2018-2019 and 2019- 2020 school years, the student continued to receive services. Even if she were entitled to compensatory relief for a denial of FAPE; the denial alleged is more procedural than substantive. See Maine Sch. Admin. Dist. No. 35 v. Mr. R. 321 F. 3d 9 (1st Cir. 2003). Clearly, the student has been struggling in her current school placement. There is no basis in the record for me to find, however, that additional SETSS were warranted for any of the school years in question.

As indicated below, I am granting the parent’s request for an independent evaluation at DOE expense, and for the CSE to reconvene to develop an appropriate IEP or IESP as requested by the parent.

In the absence of any evidence that rate requested ($150.00 per hour) is unreasonable, I will order the DOE to fund the SETSS, at the enhanced rate of $150.00 per hour, as requested by the parent.

Evaluations 34 C.F.R. Sec. 300.502(b) provides that a parent has a right to an independent educational evaluation, at public expense, if the parent disagrees with the evaluation obtained by the public agency, subject to the following conditions:

(2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay either –

(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or

(ii) Ensure than an independent evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to Sec. 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria.

Although the parent requested the independent educational evaluation on August 30, 2019, as part of the hearing request; the DOE neither requested an impartial hearing to demonstrate the appropriateness of its evaluation or arranged for the independent evaluation to be conducted or funded.

ORDER

For all of the foregoing reasons, it is hereby ordered as follows:

1. The DOE shall continue to provide the student with Special Education Teacher Support Services (“SETSS”), five periods per week, and Speech/Language Therapy (“SLT”), twice per week for thirty minute sessions, individually, for the remainder of the 2019-2020

school year;

2. The SETSS shall be funded at the rate of $150.00 per hour;

3. The DOE shall fund 120 hours of compensatory tutoring with at the rate of $150.00 per hour;

4. The DOE shall fund an independent educational evaluation of the student, at the rate of up to $5,000 and shall reconvene within 20 days following the completion of the evaluation to recommend an appropriate program. Dated: March 14, 2020 Dora M. Lassinger

DORA M. LASSINGER, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO THE RECORD

Parents

A	Impartial Hearing Request 8/30/19, 5 pp.
B	IESP, 4/6/17, 8 pp.
C	Amended Due Process Request, 11/14/19, 5 pp.
D	DOE Psychoeducational Report, 11/25/19, 5 pp.
E	Affidavit of Parent, 2/24/20
F	Affidavit of , 21/24/20, 4 pp.

Impartial Hearing Officer

I. Interim Order on Pendency, 9/20/19, 3 pp.

II. Extension, Various dates, 2 pp.