New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 536468 - NYC: 193365

FINDINGS OF FACT AND DECISION

Case Number: 193365

Student’s Name: REDACTED (hereinafter the “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: REDACTED

(hereinafter the “Parent”)

Record Close Date: October 20, 2020

Date of Hearing: October 20, 2020

Hearing Officer: Aristargos Christodoulou

Hearing Officer’s Fact of Finding and Decision

_________________________________________________________________________________________________

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 20, 2020

For the Student:

REDACTED (hereinafter referred to as “Parent’s representative”)

The Parent

REDACTED (hereinafter referred to as “Parent’s Witness 1”)

REDACTED (hereinafter referred to as the “SETSS Provider”)

For the Department of Education:

REDACTED (hereinafter referred to as “District’s representative”)

REDACTED (hereinafter referred to as “District’s Witness”)

Hearing Officer’s Fact of Finding and Decision

_________________________________________________________________________________________________

INTRODUCTION

This matter comes before the undersigned Hearing Officer at the request of the Parent of the Student, a REDACTED -year-old school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”).

BACKGROUND

On or about March 24th, 2020, the Parent filed a due process complaint (“DPC”) against the District under case number 193365 (Exhibit P-A) pursuant to the IDEA. I was appointed on August 26th, 2020 to conduct an impartial hearing pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1) to determine the claims in the DPC.

At the main hearing, after confirming that there were no objections from the Parties’ representatives as to the other parties’ proposed exhibits, Exhibits P-A to P-F and DOE-1 to DOE-4 were admitted into evidence.

POSITIONS OF THE PARTIES AND EVIDENCE PRESENTED

District’s case:

The District’s representative made an opening statement asserting (transcript: pg. 12, lines 6-24):

• • The Parent had a conversation with District’ Witness in October 2019 about services for the Student.
• • The Parent noted that she felt that services were no longer warranted for the Student, that he had not received services in years and that he did not want to attend.
• • The Parent agreed back in October 2019 to have the Student declassified from all special education services.
• • The declassification from special education service document, along with the prior written notice, was then mailed out to the Parent in October 2019.

The District’s representative also challenged the rate being claimed by the Parent during cross examination of the Parent’s Witness 1 and the SETSS Provider, as well as in closing (transcript: pg. 75, lines 19-23).

The District’s representative called District’s Witness to testify. District’s Witness testified:

• • In examination in-chief, that:
• • She sent out a notice, referencing Exhibit DOE-4, on September 20, 2019 to inform the Parent that the District would be conducting an annual review meeting to go over services for that current school year (transcript: pg. 17, lines 2-5).
• • She called the Parent on October 18, 2019 to go through with the annual review, and she opened an IESP because the Student is parentally placed. She then deleted that IESP because the Parent said that the Student no longer needed services. She then I proceeded to open what the District calls “a declass” (transcript: pg. 17, lines 5-16).
• • She explained to the Parent what “a declass” would entail and the Parent indicated to her that the Student no longer needed services, so the Parent agreed to the declass. (transcript: pg. 17, lines 17-25; pg. 18, lines 1-2).
• • It was not her intention to declassify the Student when she first scheduled the IESP meeting, that is why she opened up an IESP prior to the declass, to do an annual review (transcript: pg. 18, lines 12-16).
• • Once the declassification was finalized, she mailed out it to the Parent on October 18, 2019 at 2:06 p.m. (transcript: pg. 19, lines 14-18).
• • In cross-examination, that:
• • She could not recall if she made any attempts to gather any updated reports regarding the Student prior to the October 18, 2019 meeting (transcript: pg. 19, lines 14-18; pg. 22, lines 1-2).
• • She did not consider any updated reports for the Student during the said meeting because the Parent did not want to proceed with the annual review (transcript: pg. 22, lines 3-13).
• • She did not know when the last three-year re-evaluation of the Student had been conducted prior to the October 18, 2019 (transcript: pg. 22, lines 14-19).
• • She could not recall if she reached out to the Student's teacher, classroom teacher, or other educator in advance of the October 18, 2019 meeting (transcript: pg. 22, lines 20-23).
• • She mailed the prior written notice to the Parent by putting it where they mailed out all their mailings, within the office, and then it would be taken to the postal office located down the block (transcript: pg. 23, lines 2-25; pg. 24, lines 1-5). [The District’s Witness elaborated on the protocol during re-direct (transcript: pg. 25, lines 11-25, pg. 26, lines 1-10) and confirmed in response to my clarification question, that she followed the protocol on October 18, 2019 in regard to the prior written notice (transcript: pg. 30, lines 6-8)].
• • She explained to the Parent what a declassification entailed and that the Student would no longer be entitled to receive SETSS services, which was specifically discussed (transcript: pg. 24, lines 6-25; pg. 25, lines 1-4). [It was clarified in re-direct that she could not recall if the SETSS services that the Student previously received was discussed at the meeting but the Parent did indicate, because she did “event it” (i.e. log it in SESIS), that the Student did not want to attend the services anymore (transcript: pg. 27, lines 3-10)].

The District’s representative recalled the District’s Witness to testify after the Parent’s witnesses testified. District’s Witness testified:

• • In examination in-chief, that:
• • At no time did it appear to her that the Parent did not understand her, otherwise she would have found a translator (transcript: pg. 66, lines 24-25; pg. 67, lines 1-2). [In cross-examination, she did not recall offhand if the Parent spoken English fluently (transcript: pg. 72, lines 15-17)].
• • According to her event (recorded in SESIS), the Parent agreed with the declass. (transcript: pg. 67, lines 7-8).
• • The Parent did not mention during the October 18, 2019 meeting that she had already had a SETSS provider for the Student providing ten SETSS periods. She would not have done the declass. then (transcript: pg. 67, lines 15-20).
• • In cross-examination, that:
• • She is basing her statements on the logs in evidence and not on what she recalls of the actual conversation she had with the Parent (transcript: pg. 68, lines 12-18).
• • In response to my clarifying questions, that:
• • According to her entry/log dated October 18, 2 2019 at 11:35 a.m. (Exhibit DOE-4), namely "Spoke to parents, at this time they feel services are no longer warranted. Child has not received services “in years”, and child does not want to attend. Parent agreed to declass." the Parent never indicated that the Student received SETSS for the prior school year, because if the Parent had, she would have put it in the minutes (transcript: pg. 69, lines 1-11).
• • What the Parent indicated to her she put in quotes because those were her exact words. Wherever you see the quotations (in the preceding paragraph), that was where she was quoting the Parent (transcript: pg. 69, lines 11-19; pg. 70, lines 17-24).

Parent’s case:

The Parent’s representative did not make an opening statement. In closing, the Parent’s representative however argued that it is the Parent's contention that the Department of Education (“DOE”) failed to provide a Free Appropriate Public Education ("FAPE") for the Student for the 2019-2020 school year, more specifically that: the DOE failed to conduct the mandatory three-year evaluation of the Student and that it failed to have any of the Student's teachers at the IEP meeting that it states was held in October of 2019. The decision to declassify, it is asserted, was based on insufficient information, and was not calculated to enable the Student to make academic progress (transcript: pg. 76, lines 2-12).

The Parent’s representative called Parent’s Witness 1 to testify. Parent’s Witness 1 testified:

• • In examination in-chief (Exhibit P-E), that:
• • The Agency agreed to provide the Student with ten periods of SETSS per week for the 2019-20 school year, starting from 09/01/2019 and ending on 06/30/20 at a rate of $125.00 per hour, which is commensurate with other SETSS agencies in New York City (Exhibit P-E-1).
• • In addition to the amount paid to the SETSS providers, the remainder of the fee is used by the Agency to pay for overhead, including office staff, materials, training, supervision, assessments etc. (Exhibit P-E-1) [The breakdown was further elaborated on during cross-examination (transcript: pg. 41, lines 7-24)].
• • The SETSS Provider and the Other SETSS Provider were the SETSS providers for the Student for the 2019-2020 school year and that they are certified special education teachers (Exhibit P-E-1).
• • In total, the Agency provided 361 hours to the Student for the 2019-2020 school year totaling $45,120.00 and the Agency has received $0 for such services (Exhibit P-E-2).
• • In cross-examination, that:
• • The SETSS Provider earned $75 an hour and the Other SETSS Provider earned $60 an hour, the difference being due to the former being more experienced and having more credentials (transcript: pg. 40, lines 5-20).

The Parent’s representative called the Parent to testify. The Parent testified:

• • In examination in-chief that:
• • She recalled having an IEP meeting regarding the Student in October of 2019, but that she did not agree during that meeting that the Student no longer required special education services (transcript: pg. 44, lines 15-24).
• • She did not state during the meeting in October of 2019 that the Student had not received P-3 services, or SETSS services, for several years, and he had in fact been receiving the services over the past several years (transcript: pg. 45, lines 10-19).
• • .She never received a document or any letter informing that the Student would no longer receive services (transcript: pg. 46, lines 20-25; pg. 47, line 1).
• • She learned that the Student had been declassified for services by the District when she talked with them on the phone. That, she testified, was when “she told me” (transcript: pg. 47, lines 17-21).
• • She could not remember exactly when that was, but she thinks it was October 2019 (transcript: pg. 47, lines 24-25).
• • The Student had been declassified is what “she said”, but she (the Parent) did not agree with her because the Student needed the services (transcript: pg. 48, lines 1-5).
• • She could not remember if she was asked her opinion, whether she (the Parent) agreed with the declassification, but that she could say for sure that she (the Parent) did not agree because the Student needed the services (transcript: pg. 48, lines 6-14).
• • In cross-examination, that:
• • She did not say that her child said he did not want the services (transcript: pg. 49, lines 1-5).
• • She does not recall the team saying they would mail her documents (transcript: pg. 50, lines 5-9).
• • Once the school closed in March 2020, the Student was receiving ten hours of SETSS a week via Zoom (transcript: pg. 51, lines 9-22).
• • After the (October 2019) meeting she does not remember receiving anything from the DOE and did not call the DOE (transcript: pg. 53, lines 5-13).

The Parent’s representative called the SETSS Provider to testify. The SETSS Provider testified:

• • In examination in-chief that:
• • He provided SETSS to the Student during the 2019-2020 school year (transcript: pg. 57, lines 22-25).
• • He has a professional master's degree in early intervention therapy, special education, and general education, obtained over the previous ten-year period (transcript: pg. 59, lines 11-18).
• • In his opinion, the Student required SETSS services for the 2019-2020 school year (transcript: pg. 59, lines 19-22)
• • In cross-examination, that:
• • He provided eight of the ten periods of SETSS to the Student (transcript: pg. 60, lines 7-10).
• • The Student was in eighth grade for the 2019-2020 school year (transcript: pg. 60, lines 7-10).
• • His license “runs for all grades”, when questioned about Exhibit P-F, more specifically where it states that his license was for “Early Childhood Disabilities (birth-grade 2) Professional Certificate” and “Student with Disabilities (birth-grade 2) Professional Certificate” and whether he had a license for middle school (transcript: pg. 60, lines 19-25; pg. 61, lines 1-6).
• • He administered an informal “standard assessment” on the Student, in terms of which he gave the Student reading materials to read, and then he had to answer questions, as well as math questions consisting of a whole page of various different types of math questions. Then, based on the Student’s results, he testified, it basically “tells you what grade level he is on” (transcript: pg. 62, lines 6-25; pg. 63, lines 1-12).
• • He did not think he had to take any professional development, when questioned if he had attended any professional development during the 2019-2020 school year (transcript: pg. 64, lines 19-23).

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a FAPE^[1]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”)^[2]. A school district has offered a student a FAPE when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits^[3].

To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”^[4]. If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits^[5].

The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE^[6]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”^[7].

This case involves a parentally placed student with an individualized education services program (“IESP”) rather than an IEP. Students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP from the public school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them^[8]. The IESP must be developed in the same manner and with the same contents as an IEP is developed. School districts are required to provide special education services pursuant to the IESP. Such services must be provided on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.

Per a New York State Education Department guidance document^[9]:

“The term "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. The new State legislation is intended to maintain the level of services provided to NYS nonpublic students with disabilities through IEPs...

… Accordingly, parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program. A nonpublic student may not be denied services that a public school student would receive based solely upon his or her status as a nonpublic student...”

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement^[10].

Denial of a FAPE:

My findings regarding a denial of FAPE by the District for the 2019-2020 school year are as follows:

• • I find the testimony of the District’s Witness credible and convincing, including that:
• • She had every intention to authorizing SETSS for the Student for the 2019-2020 school year going into the IESP meeting on October 18, 2019.
• • But for the Parent informing her that the services were no longer warranted, that the Student has not received services “in years”, and that the Student did not want to attend, she would have authorized services for the Student on his IESP. This is supported by: the Defendant’s Witness’ entries in SESIS (Exhibit DOE-4); the SETSS authorization form the District provided to the Parent (Exhibit P-C); and that the Defendant’s Witness used quotation marks to capture some of what the Parent told her, when logging the entry into SESIS on October 18, 2019 at 11:35am (Exhibit DOE-4).
• • The Defendant’s Witness followed the internal protocol for mailing documents and therefore she sent the prior written notice, informing of the District’s intention of declassifying the Student (Exhibit DOE-3), to the Parent.
• • The Parent understood what was discussed at the meeting on October 18, 2019, including what she told the District’s Witness and any suggestion that she may not have understood English does not accord with the evidence [The Parent’s representative led the Parent as a witness in English and did not seek the services of an interpreter].
• • Under IDEA, the Student was entitled to an evaluation, and the District obliged to do so, prior to the District deciding that he was no longer a “child with a disability”^[11].
• • The requirements for such a reevaluation require^[12], inter alia:
• • The “IEP Team” and other qualified professionals, as appropriate, to review existing evaluation data on the child, including: evaluations and information provided by the parents of the child; current classroom-based, local, or State assessments, and classroom-based observations; and; observations by teachers and related services providers; and
• • On the basis of that review, and input from the child’s parents, identify what additional data, if any, are needed to determine: i) whether the Student continues to have a disability as defined in section 1401(3) and his educational needs; ii) the present levels of academic achievement and related developmental needs of the child; and whether the Student continues to need special education services and related services.
• • The “IEP Team”, referred to in the preceding paragraph, means a group of individuals composed of: i) the parent(s); ii) not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment); iii) not less than one special education teacher, or where appropriate, not less than one special education provider of such child; iv) a representative of the local educational agency (“LEA”) who is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; is knowledgeable about the general education curriculum; and is knowledgeable about the availability of resources of the LEA; v) an individual who can interpret the instructional implications of evaluation results, who may be a member of the team; vi) at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the student, including related services personnel as appropriate; and vii) whenever appropriate, the student^[13].
• • The meeting that had been arranged for October 18, 2019 was intended to be IESP meeting. This is clear from the SESIS log and the District’s Witness. It is clear from the evidence however that the District did not conduct a reevaluation, as contemplated by the IDEA, by the IEP Team as defined and in failing to do so committed a procedural violation of the Parent’s rights under the IDEA^[14].
• • A Court may overlook a district's failure to conduct a reevaluation if the IEP Team had sufficient information to develop the Student's program^[15]. I do not find however that is the case here. The District’s Witness testified - in response to the District’s representative’s question as to whether there were additional documents necessary to declass. or whether the District’s Witness was just going according what the Parent stated - that “we were declassing the child based upon that the Parent no longer wanted services”. This is information is what the District’s Witness, not “the IEP Team” after reevaluating the Student, acted upon when deciding to declassify the Student.
• • Given that this procedural violation led to the Student being declassified and therefore no longer eligible for special education services and related services, I find that the procedural inadequacies in question: impeded the Student’s right to a FAPE, significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student, and caused a deprivation of educational benefits^[16].
• • I therefore find that the change in classification (i.e. the declassification) was a nullity as of the date that the prior written notice (Exhibit DOE-3) sought to put into effect that change, namely November 1st, 2019 and that the Student's last IESP should remain in effect. It is my determination that the Student being classified as a “child with a disability” should therefore remain in effect on the basis of the Student’s previous classification and not on the basis of the evidence, which failed to demonstrate that the District properly followed the procedural requirements necessary for the District to declassify the Student^[17].

Claim for Recovery at an “Enhanced Rate”:

Notwithstanding my finding that the Student was denied a FAPE during the 2019-2020 school year, that is not the end of the enquiry. The District challenged both the rate being claimed by the Parent, namely the enhanced rate, and the credentials of the SETSS Provider.

In the present case, I find that the District has established on a balance of probabilities that the SETSS Provider, who provided 80% (eight of the ten hours) to the Student, only held professional certification for “Early Childhood Disabilities (birth-grade 2) Professional Certificate” and “Student with Disabilities (birth-grade 2) Professional Certificate” and was not certified for a child in eighth grade, being the Student’s grade at the time.

The Parent's representative argued in closing that the Parent is not obligated to meet the same standards as the District in securing services for the Student, and therefore the fact that a provider is not certified (the Parent’s representative initially also stated “not qualified” but then withdrew that statement), to provide SETSS in the eighth grade range is not a bar to recovery. He also asserted that a provider could be properly trained and qualified to provide math and writing instruction to students notwithstanding their certification for special education is for lower grades. (transcript: pg. 77, line 25; pg. 78, lines 1-10).

This is not the first time that such an issue has been before a Hearing Officer. Generally, teachers at a unilateral placement need not be State-certified^[18], there must however be objective evidence of special education instruction or supports that are specially designed by the student's providers at the private school who have reasonable qualifications that are specifically related to the student's deficits^[19]. I am unable to make a finding, based on the hearing record, that although the SETSS Provider was not certified, he was also not qualified to provide the SETSS which accounted for 80% of the SETSS provided to the Student during the 2019-2020 school year.

Although very little evidence was proffered on behalf of the Parent, some evidence was elicited regarding the SETSS that were provided by the SETSS Provider and the Other SETSS Provider, including the “standard assessment” given to the Student, as well as his need for those services and the improvement gained over the course of the year in question. Overall, I am unable to find that the SETTS Provider was not qualified and as the burden of proof and production is on the District, this determination does not defeat the Parent’s claim.

It has been held that in approaching the dispute as to the recoverability of an enhanced rate, such disputes should as a practical matter be “effectively examined using a Burlington/Carter unilateral placement framework” and that “attempts that … do not use a Burlington/Carter analysis have tended to lead to chaos”^[20].

Further that "parents who are dissatisfied with their child's education can 'unilaterally change their child's placement during the pendency of review proceedings' and can, for example, 'pay for private services, including private schooling.' They 'do so,' however, 'at their own financial risk.' They can obtain retroactive reimbursement from the school district after the IEP dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test. A parent can obtain such reimbursement if: '(1) the school district's proposed placement violated the IDEA' by, for example, denying a FAPE to the student because the IEP was inadequate; (2) 'the parents' alternative private placement was appropriate'; and (3) 'equitable considerations favor reimbursement.'"^[21].

The Parent submitted into evidence (Exhibit P-D), which is a call log of her attempts made to locate a district teacher for SETSS. I sought to ask the Parent some questions about these calls, but as she did not have the exhibit in front of her, it was difficult for her to answer (transcript: pg. 53, lines 19-25; pg. 54; pg. 55, lines 1-12). She did however confirm that it was very hard to try to find a provider, so she used the providers provided by the Agency (transcript: pg. 55, lines 8-18).

It has been found that the District's system for providing SETSS services that requires the parent to seek out and arrange for a student's instruction by a special education teacher based on information the Parent acquired online is a violation of State law^[22].

Further it has been held that "a board of education lacks authority to provide instructional services through an independent contractor"^[23] and that the application of State law requiring that core instruction provided by a school district must be performed either by teachers who are employees of the district or pursuant to a contract for special education services that a district is specifically authorized by law to enter into^[24]. A district is required by State law to locate and assign the student's publicly provided teachers for a dually enrolled student^[25].

It has also been held that “any notion of a public rate for independent SETSS instruction for this student that may be sanctioned in a policy of the district is flawed and cannot be reasonably relied upon by either party, because the district was not authorized to contract for the provision of an independent special education teacher” and that while “districts cannot deliver special education services called for by their educational programming in an unauthorized manner, due at least in part to the requirements that school officials and employees remain accountable under the statutory and regulatory mechanisms put in place by state and federal authorities, they can be made to pay for a privately obtained parental placement, a process that is essentially the same as the federal process under IDEA"^[26].

The Parent in this case failed to present any evidence of an obligation to pay for the SETSS provided to the Student. Parent Witness 1 testified that the cost of services provided by the Agency to the Student during the 2019-2020 school year amounted to $45,125.00 and that the Agency had received $0 for such services (Exhibit P-E-2, paragraphs 8 and 9). No further documentary or oral evidence by any of the Parent’s witnesses confirm an obligation to pay for the SETSS provided to the Student.

Since the Parent has not actually paid any money for which she must be reimbursed, this matter is “in a subset of more complicated cases in which the financial injury to the Parent and the appropriate remedy are less clear”. “The Second Circuit Court of Appeals has held that a direct payment remedy is an appropriate form of relief in some circumstances, and that "[i]ndeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework"^[27].

In this case, unlike the E.M. case, there is no proof of any agreement, either written or oral, between the Parent and the Agency that delivered SETSS providing that the Parent was responsible for the costs of the SETSS services for the 2019-2020 school year. Under the circumstances, the Parent's request for a determination that the services should be funded at the enhanced rate of $125.00 must be denied.

As the District was nevertheless obligated to pay for SETSS for the 2019-2020 school year, I find that the Parent is entitled to an Order for payment for SETSS provided during the said school year at the District’s usual or standard rate. To hold otherwise, would be to countenance the District’s actions in denying the Student a FAPE and permit the District to benefit financially from its conduct.

ORDER

IT IS THEREFORE ORDERED:

• • THAT, the DOE’s purported declassification of the Student on or about 11/01/2019 is a nullity.
• • THAT, the Student being classified as “a child with a disability” and that his last IESP shall remain in effect until such time as the DOE re-evaluates the Student in accordance with the requirements of the IDEA.
• • THAT, the DOE is directed to fund the Student’s SETSS for the 2019-2020 school year (09/01/2019 through to 06/30/2020) at the District’s usual or standard rate by issuing payment directly to the Agency, upon the submission of invoices for the SETSS rendered to the Student during that school year, up to a maximum of 360 hours.

SO ORDERED.

DATED: November 3rd, 2020

____AHC____(Signed Electronically)___

Impartial Hearing Officer

Aristargos (Harry) Christodoulou

Hearing Officer’s Fact of Finding 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.

APPENDIX A – PERSONALLY IDENTIFIABLE INFORMATION

STUDENT v. SCHOOL DISTRICT

REDACTED

APPENDIX B – ADMITTED EXHIBITS

STUDENT v. SCHOOL DISTRICT

EXHIBIT NUMBER

DATE

DESCRIPTION

NO. OF PAGES

Parent’s

Exhibits:

P-A

03/24/20

A Request for Due Process Proceeding and Notice of Appearance 3/24/2020

4

P-B

06/19/15

IESP

13

P-C

09/01/19

Authorization for Independent SETSS (9/1/2019-6/30/2020)

2

P-D

Undated

Parent’s Call List for 19-20 School Year

1

P-E

09/14/20

Affirmation of Services from REDACTED

2

P-F

10/12/20

Certificate Information for SETSS Providers

2

District’s

Exhibits:

DOE-1

10/18/19

Declassification

1

DOE-2

10/18/19

Attendance

1

DOE-3

10/18/19

Prior Written Notice

4

DOE-4

Various

SESIS Events Log

1

IHO Exhibits:

Footnotes

[1] U.S.C. § 1400 [d][1][A].

[2] C.F.R. § 300.13.

[3] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

[4] Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017).

[5] U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].

[6] U.S.C. § 1415[f][3][E][i].

[7] Rowley, 458 U.S. at 203.

[8] provisions of section 3602-c; See also 34 CFR 300.130 and 300.145-147.

[9] 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, Attachment 1, September 2007.

[10] NYS Educ. Law § 4404(1)(c).

[11] U.S.C. § 1414(c)(5).

[12] U.S.C. § 1414(c)(1).

[13] U.S.C. § 1414(d)(1)(B).

[14] The Court in Wimbish v. District of Columbia, 74 IDELR 65 (D.D.C. 2019) found that Districts must reevaluate students before exiting them from special education under the IDEA, including by conducting additional assessments as needed. They may not unilaterally end a student's eligibility, even if they plan to replace the student's IEP with a 504 plan. In this case, the district announced its decision to terminate a student's eligibility at an IEP meeting but did not first reevaluate the student to establish that she no longer needed specialized instruction. Nor did the district's plans to conduct observations and interviews at the student's private school satisfy its obligation to evaluate.

[15] A.A. ex rel. J.A. v. New York City Dep't of Educ., 66 IDELR 73 (2015).

[16] U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].

[17] Board of Educ. of the Three Village Central Sch. Dist., 29 IDELR 305 (1998).

[18] See Carter, 510 U.S. 7, 14, noting that unilateral placements need not meet state standards such as state certification for teachers. See also Application of a Student with a Disability, Appeal No. 12-125.

[19] Application of a Student with a Disability, Appeal No. 20-140.

[20] Application of a Student with a Disability, Appeal No. 20-140.

[21] Ventura de Paulino v New York City Dept. of Educ., 959 F3d 519, 526-27 [2d Cir 2020] [citations omitted].

[22] See Application of a Student with a Disability, Appeal No. 20-115; Application of a Student with a Disability, Appeal No. 20-087; Application of a Student with a Disability, Appeal No. 20-140.

[23] Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeal of Woodarek, 46 Ed Dept Rep 1, Decision No. 15,422).

[24] See Bd. of Co-op. Educ. Servs. for Second Supervisory Dist. of Erie, Chautauqua & Cattaraugus Ctys. v. Univ. of State Educ. Dep't, 40 A.D.3d 1349, 1350 [3d Dep't 2007].

[25] Educ Law § 3602-c[2][a].

[26] Application of a Student with a Disability, Appeal No. 20-140.

[27] See Application of a Student with a Disability, Appeal No. 20-140 citing E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 [2d Cir. 2014]; also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 430 [S.D.N.Y. 2011] this latter case finding it appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, had not done so due to a lack of financial resources. See also Application of a Student with a Disability, Appeal No. 20-087.