New York City Department of Education, Impartial Hearing Decision

NYS Department of Education Hearing Officer Melinda G. Gordon _________________________________

, a minor, by and through his Parent,MD Findings & Decision

Case#188611

Petitioners,

-against-

NYC Department of Education

Respondent. _________________________________

Petitioner is the parent of (“Student”), a old student with disabilities. On September 9, 2019, Petitioner filed a Due Process Complaint (“Complaint”) against the New York City Department of Education pursuant to the Individuals with Disabilities Education Act

(“IDEA”). P-A. 1

Petitioner is represented by , Esq., Law Offices of

LLP; and Respondent is represented by

, Education Administrator, New York City Department of Education (“DOE”). The undersigned was appointed to preside over this case on October 25, 2019.

Petitioner asserts that for the 2019-2020 school year, the DOE has failed to provide the student with 5 periods of Special Education Itinerant Teacher Services (“SEITS”) as provided for in ’s last agreed-upon IEP,

1 References to the Parent’s Exhibits are denoted as “P” followed by the exhibit letter. dated June 13, 2019.^[2] P-B. Petitioner also alleges that he cannot find a special education provider to impart the SEITS services at the DOE’s standard rate and requests that the SEITS services be paid at an enhanced rate. P-A. As such, Petitioner argues that these failures by the DOE constitute a denial to of a Free Appropriate Public Education (“FAPE”) for the 2019-2020 school year. Respondent consented to all of Petitioner’s pendency service requests, as stated in the June 13, 2019 IEP, but disputes that the SEITS should be paid at an enhanced rate.

On January 22, 2020, a pendency hearing was held on the above matter, and on January 29, 2020, a pre-hearing conference was held on the above matter. Petitioner’s pendency requests for all services, other than SEITS, were granted retroactive to the date of the filing of the due process complaint. These services included Speech-Language Therapy 1x30x1; 1x30x2; Physical Therapy 2x30x1; and Occupational Therapy 2x30x1. Petitioner’s request for SEITS services to be paid at an enhanced rate was denied pending the resolution of the issues contained in the due process complaint at issue in this matter.

On February 24, 2020, a due process hearing was held on this matter. Petitioner’s mother appeared telephonically for a portion of the hearing, but because of work obligations could not participate for the entire hearing. Petitioner submitted the testimony of , Supervisor ; and , Director . Both witnesses testified telephonically regarding SEITS services provided to Petitioner. On January 22, 2020, Petitioner entered into evidence exhibits A-B. On February 24, 2020, Petitioner entered into evidence exhibits C-D.

The DOE presented the telephonic testimony of , school psychologist. The DOE also submitted into evidence exhibits 1-8. The parties presented oral closing statements on February 24, 2020, and the record was closed on February 24, 2020.

Jurisdiction

This proceeding was invoked in accordance with the Individuals With Disabilities Education Act (“IDEA”), as amended in 2004, codified at 20 U.S.C. Sections 1400, et seq.; the federal regulations implementing IDEA, 34 C.F.R. Sections 300.1 et seq.; and the Regulations of the Commissioner of Education, Part 200 & 201.

Background

During the 2018-2019 school year, ’s parents requested that receive SEITS. was still in preschool and in April 2019, was the subject of a . After this meeting, in April 2019, an IEP was developed (“April 2019 IEP”). D-2. was assigned the disability classification of speech or language impairment and recommended for various services. SEITS services were not included in the April 2019 IEP. D-2. ’s mother reopened the student’s case to have reevaluated for SEIT services, and SEITS services were recommended in the June 2019 IEP. Tr. 48, P-A, D-3. It appears that received SEIT services for two weeks prior to the end of the school year. According to the parties, a subsequent IEP was developed for , which removed SEIT, however the IEP was not adopted due to lack of parental consent.

In September 2019, commenced kindergarten and was parentally placed at . received all the services provided for in his IEP except for the SEIT services. Petitioner contends that needs SEIT during 2019-2020 school year and was denied FAPE because the DOE failed to provide SEIT and failed to provide a provider who can provide SEIT services. Petitioner alleges that it is illogical that the DOE would recognize that required SEIT on June 13, 2020, and intend that the service be discontinued two weeks later.

The DOE alleges that the June 2019 IEP, created by the Committee on Preschool Special Education (“CPSE”), was specifically created to closeout the June 2019 preschool year and that the services ended when ’s preschool year ended on June 30, 2019.

Findings of Fact

The following facts are not in dispute. The April 2019 IEP was created for this student with an implementation dated of 9/4/19. D-2 The April 2019 IEP did not provide for SEIT or SETTS services for this student. D-2. However, ’s mother reopened the student’s case to have reevaluated for SEIT services. Tr. 48, D-3. A second IEP was created in June 2019, which provided with SEIT services. P-B. The parties concur that the implementation date for this service was June 14, 2019. P-

A. Both sides agree that SEIT services are for preschool students and that the appropriate school-age equivalent service is SETSS.Tr. 104.

The DOE presented the testimony of , who testified that she is a school psychologist employed by the DOE to work with CPSE agencies to conduct preschool evaluations. Tr. 36.^[3] Ms.

testified that was assigned to her in preparation for the student’s meeting. Tr. 37. Ms. explained that during a meeting, the DOE considers what kind of disability services a student may need from the DOE . Tr.37. In preparation for this meeting, two classroom observations were conducted of . D-44 According to Ms. , appeared as a very bright young boy whose academic skills were ageappropriate. Tr. 43. Ms. testified that knew his letters, his numbers, his shapes, and colors and was able to retell stories and answer questions. Tr. 44, D-4. Ms. stated that presented as a student who needed extra support for interpersonal skills and OT, but not for academics. Tr. 44, 45.

Ms. also conducted a social history update for the student, which was completed with ’s mother’s assistance. D-3. According to Ms. , the mother knew that ’s readiness skills were appropriate and that his language skills stood out in terms of academics. Tr. 47-48, D-3. The mother reopened the CPSE to have evaluated for SEIT services to provide the student with one-on-one extra academic or behavior support. Tr. 48, D-3. The mother informed Ms. that she would inform her of the SEIT decision. Tr. 48.

Ms. testified that she did not observe anything in the student’s behavior or receive information from the student’s providers that 4 References to the District Exhibits are referred to as “D” followed by the number of the exhibit. SEIT services were needed. Tr. 54. Ms. was unaware that the IEP awarded SEIT services to the student after her meeting. Tr. 56. Ms.

conceded that she did not know what purpose awarding SEIT services for merely two weeks prior to the end of the school year would serve. Tr. 56.

Petitioner called , SEIT Supervisor at , which provides SEIT services to . Tr. 61. Ms. conceded that ’s primary deficiencies were in the area of social, emotional, and classroom functioning. Tr. 62. Ms. testified that SEIT helped the student by providing him with a break down of expectations and social skills, logically explaining things to him, in addition to behavior modification. Tr. 63. Ms.

described the progress and positive impact that SEIT services have had on ’s ability to function in the classroom. Tr. 62-65. Ms.

explained that is a “rigid thinker” and has a hard time following directions and understanding expectations in the classroom without additional support. Tr. 62. Ms. testified that SEIT services help to break down expectations and provide logical explanations to assist the student’s ability to function in the classroom. Tr. 63. can socialize and communicate with his peers and teacher in a manner that was not possible in the beginning of the school year. Tr. 65-66.

Mr. , Director of provided testimony regarding the rate. P-D. Mr. testified that commencing September 9, 2019, has provided five hours per week for sixty-minute sessions of one to one SEIT services to . P-D. Mr. testified that the total number of hours of SEIT services for the 2019-2020 school year is 200 hours at the cost of $30,000.00. P-D.

Conclusions of Law

The DOE concedes that it failed to provide SEIT services to , arguing instead that was not entitled to the service during the 2019-2020 school year. The DOE failed to provide any evidence that the June 2019 IEP, created by the Committee on Preschool Special Education (“CPSE”) was to discontinue after June 2019. The DOE’s sole witness, Ms.

, lacked knowledge that a subsequent IEP was even created and implemented in June 2019 and could not testify about the addition of SEIT services. As such, her testimony could not support the DOE’s position that the June 2019 IEP contained an expiration date when ’s preschool year ended on June 30, 2019. The DOE also failed to provide evidence that the SEIT services could have been obtained at a lower rate.

The DOE cannot be absolved of its statutory obligation to implement a special education services program for a privately placed student by authorizing the student to receive such services, and then failing to provide a provider. Application with a Student with a Disability, Appeal No. 17-034. If it fails to do so and forces the parents to find a special education provider on their own, then the DOE must fully fund the cost of such services. Id. at 8. At no time has the DOE provided a provider for these services, and as a result, the parents were forced to find a provider on their own, and that provider costs $150 per hour.

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:

(1)The DOE failed to provide SEIT services to since the commencement of the 2019-2020 twelve (12) month school year.

Based on the June 2019 IEP in place for this student, should have received SEIT services

(2)The DOE is ordered to pay or reimburse Petitioner for all SEIT service expenses to date. Upon receipt of this order the DOE is ordered to provide SEIT services to . If the DOE fails to provide SEIT services to upon receipt of this order, the DOE shall have a continuing responsibility to reimburse Petitioner for any additional SEIT expenses at an enhanced rate.

IT IS SO ORDERED.

DATED: April 6, 2020 Melinda G. Gordon

Melinda G. Gordon

HEARING OFFICER

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. The regulations governing appeals 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.

As those Regulations detail, before filing an appeal, if either party intends to appeal the decision, a Notice of Intention to Seek Review shall be personally served upon the opposing party before the Appeal itself is filed, no later than 25 days after the date of the decision sought to be reviewed.

The Appeal itself must 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.

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.

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Footnotes

[2] Related services consisting of Speech-Language Therapy 1x30x1; 1x30x2; Physical Therapy 2x30x1; and Occupational Therapy 2x30x1 provided for in the IEP have been implemented.

[3] References to the transcript are denoted as Tr.