NY IHO #193650: New York City... | Special Education Law

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CASE NUMBER: 536802 - NYC: 193650

NEW YORK CITY DEPARTMENT OF EDUCATION IMPARTIAL HEARING OFFICE

STUDENT, a minor, by and through his/her PARENT,1

Petitioner,

FINDINGS OF FACT AND DECISION

- against - Case No. 193650

THE NEW YORK CITY DEPARTMENT OF Record Close Date: 12/01/20 EDUCATION,

Respondent

HASHIM RAHMAN, Hearing Officer:

The Petitioner is the parent of a Student who requires special education services. On April 24, 2020, the Petitioner filed a due process complaint (hereinafter “Complaint”) against the New York City Department of Education (hereinafter “DOE” or Respondent).2 (See Pet’r’s Request for Due Process Proceeding.) In the Complaint, the Petitioner asserts, inter alia, that the DOE denied the Student a free and appropriate publication education (or “FAPE”) by failing to provide special education teacher support services (or “SETSS”). (Id. at 1.)

The undersigned Hearing Officer was appointed for this matter on September 17, 2020. (See App. B.) Thereafter, a prehearing conference was held on September 22, 2020; and a status conference was held on October 9, 2020. (See id.) A due process hearing was held on November 6, 2020. (See id.) All parties were represented. (See App. C.) A list documentary evidence submitted by the parties at the due process hearing is appended to this decision. (See App. A.)

FACTS PRESENTED IN THE COMPLAINT

As per the Complaint, the Student was to receive five periods per week of bilingual special education teacher support services (or “SETSS”) for the 2019-2020 school year. (Compl. 1.) As alleged, the Student’s last individualized education services program (or “IESP”) mandated the provision of SETSS; and the Student was authorized to receive SETSS as per a [DOE] form.3 (Id.) However, the Parent was not able to locate a SETSS provider at standard DOE rates, “in part [due] to the significant help the student needs, and due in part to the unavailability of providers.” (Id.) The Parent found a SETSS provider willing to provide all mandated services albeit at a higher rate than the DOE approved rate. (Id.) The Parent seeks, inter alia, an “[a]llowance of funding for payment of the [SETSS] provider/agency... at an enhanced rate for the entire 2019-2020 school year.”4 (Compl. 2.)

THE DUE PROCESS HEARING

• Evidence Presented by the DOE At the due process hearing, the DOE did not present any witnesses or documentary evidence. (See Hr’g Tr. 58:5-11, November 6, 2020.) The DOE also did not present an opening statement. (See id. at 44:11-15.) The DOE did present a closing statement in which the Representative 1) raised questions regarding the SETSS Provider’s qualifications, and 2) objected to the enhanced rate charged by the SETSS Provider. (See id. at 88:3-89:23.)

3 The Complaint also contends that the DOE had not developed a “recent” IESP. (Id.)

4 The Complaint requested a pendency hearing. (Id.) However, on September 25, 2020, the Petitioner’s Counsel informed the Hearing Officer that the parties entered into a pendency agreement and a hearing was not needed. The Complaint also requested an award for services on the Student’s last IESP (Id.); however, no IESP was submitted into evidence and this issue was not presented during the due process hearing. (See Hr’g Tr. 41:8-14, November 6, 2020.)

• Evidence Presented by the Petitioner At the hearing, the Petitioner presented four documents and one witness. (See id. at 41:3- 14.) All documents, namely the Complaint, a pendency agreement, a list of certificates, and a SETSS authorization form, were admitted into evidence. (See id. at 50:10-11; see also, Pet’r’s Ex.’s A-D.) The agreement reflected in Exhibit B indicates that the Student’s pendency program would consist, inter alia, of “5 periods per week” of SETSS over the course of ten months. (See Pet’r’s Ex. B.) No rate was specified in the pendency agreement. (See id.)

The SETSS Provider testified as follows: she was recommended to the Parent by her supervisor (Hr’g Tr. 57:23-58:1); her supervisor is the Parent’s sister (id.); she has been the Student’s SETSS provider from October through June of the prior [2019-2020] year (id. at 57:19); she charged a rate of $175 per hour for each session (id. at 59:12-13); she holds a teaching certificate for “birth to grade 2” for students with disabilities (id. at 56:7-17); the Student was in 7th grade during the 2019/2020 school year (id. at 61:4-15); and the Student’s reading comprehension was at a 2nd/3rd grade level (id).

When Counsel asked whether the Student had a “recent” IESP when entering the 2019- 2020 school year, the SETSS Provider stated, “No... it was not updated... it wasn’t relevant at all.” (Id. at 60:15-24.) When Counsel asked whether the Student’s abilities were assessed, the SETSS Provider stated, inter alia, that she spoke with the Parent; she spoke with a teacher; she asked the Student what was needed the most; and she performed an assessment in the area of comprehension and language. (Id. at 59:14-60:14.) Upon cross examination, the SETSS Provider stated that she performed a “quick assessment” for reading comprehension; she described the assessment as a “curriculum” that is based on “school readers for 3rd grade[;]” she said the assessment did not have any name; and she does not like to perform too many assessments as that intimidates students. (Id. at 73:20-74:17.)

ANALYSIS AND CONCLUSIONS

I. General Legal Framework The Petitioner asserts that the DOE denied the Student a free and appropriate public education (or “FAPE”), which is a right arising under the Individuals with Disabilities Education Act (“IDEA”). See 20 U.S.C. 20 U.S.C. § 1400(d)(1)(A). A FAPE should emphasize “special education and related services designed to meet [a disabled child's] unique needs and prepare [the child] for further education, employment, and independent living[.]" Id. If a FAPE has not been provided to a child with a disability, a parent may unilaterally place that child in a private school and seek an award for reimbursement from the school district. 20 U.S.C. § 1412(a)(10)(C)(ii); see also, Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985) ("Burlington"); Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12 (1993) ("Carter").

In the present case, Petitioner contends that the DOE denied the Student a FAPE by failing to provide SETSS. The Petitioner seeks remuneration for SETSS obtained privately and at a rate that the DOE is objecting to. A determination of whether the Petitioner is entitled to an award for such remuneration is best analyzed under the Burlington/Carter test. See In re: Student with a Disability, Appeal No. 20-140 at 7 (SRO Sept. 23, 2020); In re: Student with a Disability, Appeal No. 20-099 at 7 (SRO Sept. 21, 2020); In re: Student with a Disability, Appeal No. 20- 094 at 9 (SRO Sept. 9, 2020). Under the Burlington/Carter test, a parent may obtain reimbursement if 1) the school district violated the IDEA by denying a FAPE to the student; 2) the private placement by the parent was appropriate; and 3) considerations of equity favor reimbursement. See Ventura de Paulino v. New York City Department of Education, 959 F3d 519, 526-527 (2d Cir. 2020). This standard has been applied to both tuition-reimbursement and SETSS-reimbursement cases like the one at bar. See In re: Student with a Disability, Appeal No. 20-140 at 6-7 (where the state review officer described a growing number of SETSS cases for which the Burlington/Carter standard, typically used for tuition reimbursement, was applicable). II. FAPE With respect to the first prong of the Burlington/Carter test, the DOE bears the burden of proving that it provided a FAPE to the Student. See EDUC. L. § 4404(1)(c). Yet at the hearing, the DOE presented no documentary evidence or witnesses to prove that the student was provided with SETSS during the time period referenced in the Complaint. (See Hr’g Tr. 48:5-11.) Accordingly, I find that the DOE did not meet its burden of proof; and I find that the DOE violated the IDEA by failing to provide the Student with a free and appropriate public education. III. Appropriateness of Placement For the second prong, the Petitioner bears the burden of proving whether the unilateral placement of the Student with the privately-obtained SETSS Provider was appropriate. See Educ. L. § 4404(1)(c). The appropriateness of placement hinges on whether it is "reasonably calculated to enable the child to receive educational benefits." Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006), (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)). “No one factor is necessarily dispositive in determining whether parents' unilateral placement” is reasonably calculated to confer educational benefits to the child. Frank G. at 364-

365. To qualify for reimbursement a parent “need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child...” Id., (quoting Rowley, 458 U.S. at 188-89).

In the present case, the Petitioner’s scant documentary evidence does not present a clear picture of the Student’s unique needs. The Petitioner did not present any assessments, reports, or evaluations that detailed the Student’s disability. The Petitioner did not even present any IESP, even though it was claimed that SETSS was mandated through an IESP (see Pet’r’s Ex. A at 1). The Petitioner only presented documents, such as the Complaint and the pendency agreement, that show the periods of SETSS that were needed. (See Pet’r’s Ex.’s A-B.)

The SETSS Provider’s testimony did not serve to compensate for the Petitioner’s lack of documentary evidence. For instance, SETSS Provider testified that she did conduct an assessment of the Student. (Hr’g Tr. 59:14-60:14.) However, she was not able to name the assessment (see id. at 73:20-74:17); and no documentary evidence of the assessment was produced. She also characterized the purported assessment as a “curriculum” (id. at 74:12), even though a curriculum is a course of study and an assessment is not. The SETSS Provider said that the Student had improved (id. at 65:7-12), but no documents were presented to show any baseline from where the Student improved; and no documents were presented to show how the Student improved.

It is difficult to ignore that the DOE failed the Student in the first instance by not providing SETSS; and it is also difficult to ignore that the DOE’s practice of outsourcing SETSS proses problems. However, this does not change the fact that the Petitioner has the burden to prove that any private placement is reasonably calculated to confer educational benefits designed to meet the unique needs of the Student. In this case, which is so lacking in documentary evidence and cogent testimony, I find that the Petitioner has not proven that the placement was appropriate.

IV. Whether Equities Favor Funding or Reimbursement

Even if the placement had been deemed appropriate, there is no documentary evidence demonstrating that the Petitioner has expended any funds or incurred any legal obligation with respect to the services of the SETSS Provider. The SETSS Provider testified that she charged a rate of $175 per hour (id. at 59:12-13); however, this testimony was not supported by attendance records, receipts, invoices, or contracts. It has been deemed, in other IDEA cases, that equities do not favor funding or reimbursement when there is insufficient proof of a payment obligation. See In re: Student with a Disability, Appeal No. 20-094 at 25; In re: Student with a Disability, Appeal No. 20-140 at 13. As there is inadequate proof that the Petitioner has expended any funds or is legally obligated to do so, it is not appropriate equitable relief in these circumstances to require the DOE to either reimburse the Petitioner for the costs of SETSS or to directly fund SETSS.

Accordingly, the relief requested by the Petitioner is denied in its entirety and the case is dismissed.

Dated: 12/01/20

SO ORDERED

/s/ HASHIM RAHMAN, HEARING OFFICER

Sent via Email to All Parties

APPENDIX A – PETITIONER’S EXHIBITS

EXHIBIT

LETTER

DATE

PETITIONER’S DESCRIPTION

PAGES

A 04/24/20 Due Process Request 4

B 09/25/20 Agreement on Pendency 4

C 10/14/20 List of provider’s certificates 1

D 09/01/20 Authorization for Independent SETSS 1 APPENDIX B_– ITEMS IN RECORD

DESCRIPTION

DATE

Request for Due Process

04/24/20

Due Process Response, submitted by Petitioner’s counsel on 09/22/20

05/08/20

Notice of Appointment

09/17/20

Scheduling Order

09/18/20

Email from Petitioner’s counsel regarding pendency

09/25/20

Transcript of prehearing conference held on 09/22/20

09/25/20

Confirmation email from Respondent’s representative

10/05/20

Order on Status Conference and Case Rules

10/05/20

Order of Extension

10/09/20

Confirmation email from Respondent’s representative

10/09/20

Emails from Petitioner’s counsel regarding resolution efforts

10/19/20,

10/22/20

Transcript of status conference held on 10/09/20

10/12/20

Order directing submission of joint status letter

10/22/20

Letter from Petitioner’s counsel regarding resolution efforts

10/22/20

“Parent’s Exhibits” submitted by Petitioner

04/24/20 -

10/14/20

Transcript of due process hearing held on 11/06/20

11/10/20

APPENDIX C_ – TERMS AND REFERENCES

[INTENTIONALLY OMITTED]

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 ofintention 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.

NOTICE OF RIGHT TO APPEAL

1 Personally identifiable information has been removed from this decision but is shown in Appendix C.

2 Pursuant to the Notice of Appointment that was emailed to the Hearing Officer by the New York City Impartial Hearing Office on September 17, 2020, the Complaint is deemed to have been received on April 27, 2020.

New York City Department of Education, Impartial Hearing Decision