New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 539768 - NYC: 196488

FINDINGS OF FACT & DECISION

Case No.: 196488

SED No.: 539768

Student’s Name: REDACTED

(hereinafter referred to as “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Request by: REDACTED

(hereinafter referred to as “Parents”)

Hearing Dates: November 5, 2020, November 18, 2020,* January 19, 2021, March 26, 2021, April 23, 2021, May 12, 2021, June 29, 2021, September 2, 2021, October 8, 2021, November 18, 2021, March 17, 2022, April 25, 2022, June 30, 2022 and August 9, 2022

Actual Record Close: October 28, 2022

Date of Decision: October 28, 2022

Hearing Officer: Stephanie Seto, Esq.

*November 2 and 18, 2020 were pendency hearings held by IHO Paul REDACTED.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 5, 2020

For the Student:

REDACTED, Esq., Law Offices of REDACTED, L.L.P.

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 18, 2020

For the Student:

REDACTED., REDACTED, L.L.P.

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 19, 2021

For the Student:

REDACTED, Esq., Law Offices of REDACTED, L.L.P.

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 26, 2021

For the Student:

REDACTED, Esq., Law Offices of REDACTED, L.L.P.

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 23, 2021

For the Student:

REDACTED, Esq., Law Offices of REDACTED, L.L.P.

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 12, 2021

For the Student:

REDACTED, Esq., Law Offices of REDACTED, L.L.P.

For the Department of Education:

REDACTED, Esq., Office of Legal Services, for DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 29, 2021

For the Student:

REDACTED, Esq., Law Offices of REDACTED, L.L.P.

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 2, 2021

For the Student:

REDACTED, Esq., Law Offices of REDACTED, L.L.P.

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 8, 2021

For the Student:

REDACTED, Esq., Law Offices of REDACTED, L.L.P.

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 18, 2021

For the Student:

REDACTED, Esq., Law Offices of REDACTED, L.L.P.

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 17, 2022

For the Student:

REDACTED, Esq., Law Offices of REDACTED, L.L.P.

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 25, 2022

For the Student:

REDACTED, Esq., Law Offices of REDACTED, L.L.P.

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 30, 2022

For the Student:

REDACTED, Esq., Law Offices of REDACTED, L.L.P.

For the Department of Education:

REDACTED, Esq., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 9, 2022

For the Student:

REDACTED, Esq., Law Offices of REDACTED, L.L.P.

REDACTED, Parent (Mother)

For the Department of Education:

NONE

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents Due Process Complaint filed on or about June 15, 202021 (P Ex. D)^[1]. ‘filed an amended Due Process Complaint on or about October 22, 2020 (“Amended DPC”) (P Ex. A) that is the operative Due Process Complaint in this matter. The Amended DPC alleges the New York City Department of Education (the “District” or “DOE”) failed provide Student with a Free Appropriate Public Education (“FAPE”) under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act and Article 89 of the New York Education Law for the 2020-2021 12-month or extended school year (“ESY”) and sought the District fund Student’s unilateral placement at REDACTED (“REDACTED”) and continue Student’s pendency program and services for the 2020-2021 school year pursuant to a prior unappealed Amended Finding of Fact and Decision in IHO Case No. 163418 covering the 2016-2017 school year dated May 27, 2017 (“FOFD”). P Ex. A-2 and P Ex. B-3.

The FOFD found Student’s unilateral placement at REDACTED (which closed after the 2019-2020 school year), a general education private Jewish day school in REDACTED that offered a special needs program, REDACTED (“REDACTED”) a special education support program in which vetted children with disabilities were enrolled in an inclusion type of class was appropriate for Student but Student also required the addition of twenty hours of a 1:1 SEIT and related services of speech and language therapy (S/L T), occupational therapy and physical therapies, each five times a week for 45 minute sessions 1:1. P Ex. B-4-15.

There was no District Response to the to the DPC or Amended DPC.

As set forth in the record, at the hearing on the merits, Parents only sought a determination regarding the entitlement to 1:1 SEIT hours of twenty hours a week for approximately two and a half weeks during the ESY in July of 2020 and did not seek a finding that regarding the request for tuition funding at REDACTED for the 2020-2021 school year or any other relief. Tr. 75-76, 103-104,129-133, 144-147; P Ex. A-1-2 and B-15.

Parents sought a finding awarding funding for SEIT services Parents obtained as “a continuation of Student’s pendency program.” P Ex. A-2. The total amount of SEIT services that Parents sought funding for were 29.5 hours from July 2, 2020 through July 14, 2020 at a rate of $175.00 per hour to be directly funded to the provider. Tr. 144. P Ex. C-1.

Parents’ counsel made clear Student received all of the relief sought for the 2020-2021 school year with regard to related services including SEIT through pendency and no other relief was sought in the hearing on the merits. Tr. 144-147.

The undersigned Hearing Officer was appointed to the above matter on January 11, 2021. Prior to that IHO REDACTED (“IHO REDACTED”) was appointed to this case on October 28, 2020 and held pendency hearings on November 5 and 18, 2021. P Ex. E-3, Pendency Order dated November 25, 2020 (“Pendency Order”). IHO REDACTED awarded Parents pendency of the SEIT and related services in the FOFD. P Ex. E. The Pendency Award was based upon an agreement of the parties that Parents would not seek a pendency determination of their claim that the unilateral placement at REDACTED was “substantially similar” to the one at REDACTED and Parents limited the pendency placement sought to the SEIT and related services deemed appropriate and ordered in the FOFD. P Ex. E-3-4. Based upon this agreement of the parties, IHO REDACTED awarded pendency of SEIT services provided on a 1:1 basis for twenty hour a week and S/L T, OT and PT 1:1 five times a week for 45-minute sessions from July 15, 2020 through the pendency of this matter. P Ex. E-3-5.

An initial hearing was held on January 19, 2021 and thereafter 10 status conferences were held in this matter from March 26, 2021 through June 30, 2022. Tr. 1-133. Initially Parents sought the full relief in the Amended DPC. Tr. 48-68. I the hearing and status conferences held between January 2021 and May 2021, District expressed that it was still investigating, and Parents expressed the wish to resolve the matter through settlement and both parties expressed the likelihood of settlement. See Tr. 45-48, 55-59, 62, 67-69. At the May 12, 2021 status conference Attorney REDACTED stated she had been on leave and the matter had fallen “through the cracks” and she had not been able to complete the District’s investigation for referral for settlement. Tr. 68.

At the June 29, 2021 status conference’s counsel reported that Parents would no longer seek tuition at REDACTED under the DPC and was only seeking a remedy limited to a settlement or award of the SEIT hours and related services Student had received in the FOFD and was receiving pursuant to pendency. Tr. 75. Parents’ counsel noted that Student had received most pendency for such services for most of the year but there was approximately a two-week period at the beginning of the ESY that was not covered by Pendency for which Parents would need funding. Tr. 75. Parents’ counsel expressed the belief of the likelihood of resolution and Parents’ desire to avoid litigation which District agreed. Tr. 76.

In status conferences from September 2, 2021 through April 25, 2022, Parents’ counsel reported that there had been a “continuing effort to resolve” (Tr. 82), a resolution should be able to be worked out (Tr. 86), “deep discussions” to resolve” (Tr. 97-98) and “traction” (Tr. 103-104) in resolving the matter of payment for the “small portion of [SEIT] services” not covered by pendency and requested continued opportunities to resolve the matter mutually by agreement with the District. Tr. 82-105. At the status conferences that a District representative appeared there was agreement with Parents’ counsel’s statements; but, there was no District representative at most of the status conferences during this time period (September 2, 2021, November 18, 2021, March 17, 2022 and April 25, 2022). Tr. 82-105.

At the June 30, 2022status conference, Parents’ counsel indicated there was “no material progress” to resolve the issue of the 29.5 unpaid SEIT hours and the newly assigned attorney advocate for the District stated the matter had been continuously “dropped” by District and where there had been “traction” there was no longer any. Tr. 120-121. Parents’ counsel indicated the matter was not going to resolve. Tr. 122-23. This IHO indicated to parties that the issue of the Parents’ request for funding for the Parentally obtained SEIT under the DPC and prior pendency was subject to a Burlington/Carter test for examining the issue of the SEIT program Parents implemented unilaterally. Tr. 129-131.

On August 9, 2022 the hearing on the merits was held and District failed to appear. Tr. 141-169.

Parents’ counsel only sought a finding on the issue of funding for the SEIT hours provided to Student from July 2 through July 14, 2020 (29.5 hours) during the 12-month school year. Tr. 144. The Amended DPC and the FOFD were already in evidence from the Pendency hearing and Parents offered and was entered an invoice of the Agency that provided SEIT services during the relevant time period (P Ex. C), Progress Notes of the SEIT from June 2020 (P Ex. D) and the Pendency Order.

Parents’ Position at the Hearing On the Merits

Parents in the hearing on the merits and in the Amended DPC maintain that Student should have received SEIT services during the 1:1 20 hours a week based upon the recommendation in the progress notes of the SEIT and because “there has been no attempt by the District to stop Student’s SEIT services received during pendency the services remained appropriate (including to date) and the District therefore has agreed to and continued paying for these SEIT services indicating that the SEIT services were an appropriate program for Student during the 2020-2021 ESY and thus this is “tantamount to a tacit agreement” that the services remained appropriate. Tr. 145-146. Further, Parents’ counsel requested this IHO use the IHO’s equitable power to order the services that were not covered by the Pendency Order. Tr. 146.

Initially, Parents’ counsel did not offer any witness testimony and requested the IHO decide on the documents entered into the record. Tr. 146-147. This IHO indicated the belief that witness testimony was necessary. Tr.147-150. Thereafter, Parents’ Counsel presented Student’s Mother as a witness. Tr. 151 —165

District’s Position

Prior to the hearing, District did not put a position on the record and District failed to appear at the hearing on the merits.

No closing briefs or statements were submitted by either party.

A list of the documentary evidence submitted is appended to this Order. The compliance date was extended prior to this IHO’s appointment and thereafter on numerous occasions per the parties’ joint requests due to reports of likelihood of settlement, to allow the parties to prepare fully for hearing and time to obtain transcripts and issue a Finding of Fact and Decision in this matter.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the IDEA and its implementing regulations and the New York State Education Law and its implementing regulations.

FINDINGS OF FACT

Student turned redacted years old in the summer of 2020. P Ex. A-1. No evidence was presented as to what grade Student was entering for the 2020-2021 school year. But, the FOFD provided indicated if Student did not repeat a grade she would be entering fourth grade, but the Progress notes provided at the end of the 2019-2020 school year was in second grade. P Ex. D. Student has REDACTED and has struggles, OT and needs support in different ways. Tr. 153; P Ex. A and B. The DPC also states Student is a survivor of leukemia and has scattered cognitive skills, severe apraxia, delayed gross and fine motor skills and displays attention seeking and impulsive behaviors. P Ex. A-2. The FOFD discusses testing from 2015 and stated Student is classified as “Speech and Language Impairment” (and also finds diagnosed with REDACTED.) P Ex. B-3-4.

Student attended school at REDACTED for the 2020-2021 school year, a school described as “substantially similar” to Student’s previous school REDACTED which became no longer available as it was not in existence for the 2020-2021 school year. Tr. 154-55; P Ex. A. Student attended REDACTED up through 2019-202 school year and received the SEIT and Related Services mandated in the FOFD through that time and thereafter. Tr. 154-55, 160. No information on REDACTED was provided.

It is unclear if Student attended REDACTED for a 10- or 12-month school year in 2020-2021. Mother testified Student moved to REDACTED after REDACTED closed after the 2019-2020 school year ended but did not answer when asked if Student attended REDACTED during summer of 2020 when receiving the SEIT hours at issue. Tr. 160-161. She testified due to COVID student was receiving SEIT hours in July 2020 at home online. Tr. 160-161; P Ex. C. Parents presented no information about where or whether Student attended virtually school during the summer of 2020. Tr.

Student’s SEIT has been REDACTED (“REDACTED”) for the last three years and worked with Student prior to the 2020-2021 school year and is Student’s current SEIT provider. Tr. 155-156, 159. REDACTED did not testify but a document that are her progress notes that Parents’ counsel described as “updated” June of 2020” were offered as evidence. Tr. 156;P Ex. D. No explanation of the specifics in the Progress Notes was offered and left to the IHO to decipher. There are full statements in the Progress Notes that state Student “did a great job this year” and her “success has been largely due to intensive supports which afford her with a small setting and needs consistent SEIT to stay on track. See P Ex. D -5and 7. Parents testified she understood the narrative portion of the Progress Notes to recommend Student continue with SEIT services. Tr.156.

The FOFD found Student was appropriately placed at REDACTED due to her enrollment in the REDACTED program at REDACTED. P Ex. B-3-15. REDACTED was a special education support program in which vetted children with disabilities were enrolled in an inclusion type of class with support of a special education teacher. P Ex. B-3-15. The FOFD also found Student would not be able to “mainstream” with the REDACTED program support only also required the addition of twenty hours of a 1:1 SEIT and related services of speech and language therapy (S/L T), occupational therapy and physical therapies, each five times a week for 45-minute sessions 1:1. P Ex. B-4-15.

In 2016-2017, the year the FOFD examined the appropriateness of Student’s program at REDACTED and her additional programming, Student was in a fourteen student Kindergarten classroom during the 2016-2017 school year and there were two children in the REDACTED program in the classroom. P Ex. B-11. Before each class in which Student was “mainstreamed,” the SEIT or the special Education Teacher previewed material for her, during presentation of materials in class helped her stay focused and after presentation took her to quiet environment for 1;1 review breaking the material down and using multi-sensory and visual aids. P Ex. B-11.

The SEIT program found as appropriate in the FOFD included a SEIT working with Student four hours a day, five days a week in school Monday through Friday. P Ex. B-8. The FOFD discussed “future requirements” in that student struggled without the SEIT during the school day. P Ex. B-8. The FOFD does not indicate Student attended an ESY or that the SEIT services and related services were ordered for the summer months. P Ex. B.

As discussed in the Pendency Order of IHO REDACTED, the parties agreed that Student’s stay put placement would not include placement and payment of tuition at REDACTED, but Student’s SEIT and related services would constitute the stay-put placement during the pendency of this matter; there is no direct order in the FOFD or the Pendency Order for SEIT and related services in the summer months. PE Ex. E. Parent testified she believed the District had funded services from July 15, 2020 onward and she did not think that the agency providing REDACTED’ s SEIT services to Student was paid for July 2 through July 14, 2020, but she was not “100%”. Tr. 158-159.

Parent testified the focus and general reason for the 1:1 SEIT for 20 hours a week was academic support so she could function in a general education, inclusive environment. Tr. 157. She also testified SEIT services were provided during the summer to prevent regression. Tr. 157.

There is no testimony or information about a contract between Parents and the Agency providing SEIT services or that Parents was invoiced directly for the services that Parents seeks to have covered. There is no testimony regarding the basis of the rate for the summer services for which Parents seeks funding or what REDACTED was paid.

CONCLUSIONS OF LAW

Applicable Standards The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student’s recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998). Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA.” In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”

NY Education Law § 3602-c

Under New York State Education Law section 3602-c (“3602-c”), unlike the provisions of the IDEA, section 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404. Id. Students with disabilities who are residents of New York State [emphasis added] and privately placed by their parents in nonpublic schools are entitled to receive special education “services” by filing such a request for such services in the District of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made. In accordance with this law, the District’s CSE must review the request for services and develop an IESP for a student the request has been made for based upon the student’s individual needs in the same manner and with the same contents as an IEP. See, N.Y.S. Ed. Law § 3602-c(2)(a) and (b)(1); 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, Memorandum from James P. DeLorenzo, re: Chapter 378 of the Laws of 2007, New York State Education Department, Sept 2007 (“Guidance Memo on 3602-c”) https://www.p12.nysed.gov/specialed/publications/policy/documents/chapter-378-laws-2007-guidance-on-nonpublic-placements.pdf. A parent who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location. See, Id. at 5.

While the statutory scheme of Education Law § 3602-c places the responsibility of selecting and placing the student in a nonpublic school on the parent, the implementation of the services called for by a student’s IESP falls on the District as far as “boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent.” See § 3602-c; See, Application of Student with a Disability, SRO Appeal 16-008. The CSE must “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.” Id.

The decisions of the State Review Officers, while not binding, have repeatedly found that a school district in New York is required by law to locate and assign a student publicly provided teachers or services providers for dually enrolled students under N.Y. Ed. Law § 3602-c(2)(a); see, SRO Appeal 16-008; Application of a Student with a Disability, SRO Appeal No. 20-042; Application of a Student with a Disability, SRO Appeal No. 20-094;Application of a Student with a Disability, SRO Appeal No. 20-141; Application of a Student with a Disability, SRO Appeal No. 21-101; Application of a Student with a Disability, SRO Appeal No. 21-119.

Application of Burlington-Carter Test in Circumstances In Which Parents Obtain Special Education Services for a Student that is Parentally Placed in a Non-Public School and Seek Funding or Reimbursement for Such Special Education Services.

The State Review Officers uniformly apply a Burlington-Carter test to determine to determine if districts must fund special education services that a parent paid for or has become legally obligated to pay for in cases falling under 3602-c and as a “practical matter this kind of dispute can really only be effectively examined using a Burlington/Carter unilateral placement framework.” SRO Appeal No. 21-119, p. 11; see also, e.g., SRO Appeal No. 16-008, SRO Appeal No 20-042, SRO Appeal No 20-042, SRO Appeal No 20-094, SRO Appeal No 21-141.

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. NY Educ. Law § 4404(1)(c); see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012); M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. August 27, 2010).

The courts have determined that the remedy of reimbursement for private educational services and expenses may be granted by an IHO for a denial of FAPE by a school district if determined appropriate under the Individuals with Disabilities Education Act (IDEA). Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993). Reimbursement requires the school district to “belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. Burlington, 471 U.S. at 370-71; see 20 USC §1412 (a)(10) (c)(ii); 34 CFR § 300.148.

These decisions are commonly referred to as the Burlington/Carter “three-prong” test or analysis to the question of whether a board of education has delivered a FAPE and whether it may be required to reimburse parents, as follows: (i) Prong 1- the school district’s offered services or IEP were inadequate or inappropriate, i.e. the school district must prove it has provided student with FAPE;(ii) Prong 2 -the burden of proof is placed upon parents to prove the services selected by the parents were appropriate for the student; and (iii) Prong 3 a balancing of equitable considerations favor the parent(s)’ claim for reimbursement. Id.

Issue of SETSS versus SEIT Services

“SETSS” is generally understood to stand for special education teacher support services, and is a general term used for special education services provided by a special education teacher to school-aged students, but it is undefined in the NYS continuum of special education services. See 8 NYCRR § 200.6. State Education Department State Review Officer Decisions consistently note that the term SETSS is undefined, and many cite to SRO Decision 16-056 which attempted to clarify the definition of SETSS services and found the meaning of SETSS should be defined on a case-by-case basis informed by the evidentiary record in which it bears a disputed issue and indicates how SETSS are described on a student’s IEP and the specific objectives to be achieved with the service should be taken into account. See SRO 16-056, 12 -19.

SEIT services are defined in the New York State regulations as the New York State preschool term for an itinerant duly licensed special education teacher. Therefore, for a school aged student (Kindergarten and above) SETSS would be the more appropriate program with regard to direct services to a student with an itinerant special education teacher.

ANALYSIS

This matter involves a DPC where a Parents parentally placed Student in a private school unilaterally and also provided Student with a program of SEIT and related services unilaterally based on prior years program awarded in an FOFD and “pendency.” Even though Parents retracted their claim for tuition funding for REDACTED, they continued their request that that the District fund Parents arrangement for Student to receive 20 hours a week of SEIT hours in the summer of 2020. This type of unilateral action by the Parent is subject to a Burlington-Carter analysis.

Prong I- Denial of FAPE

Student was denied a FAPE as the District failed to carry their burden regarding FAPE as District did not appear and did not put on an affirmative case to carry their burden of proof. Further, there is no proof of an IEP offered (although considering Parent’s revised request by dropping the request for tuition funding at REDACTED an IESP would be more appropriate) but considering that Parent originally wanted a placement, an IESP seemingly would not have been requested. See DPC Ex. A. But, it is significant that once a parent parentally places a Student in a non-public school without seeking tuition reimbursement or funding an IESP would be most appropriate and as stated above, an IESP by statutory design only covers the regular school year or a ten-month school year from September through June. A specifically requested IESP for the Summer months to avoid regression must then be requested each year Student attend s a private school via parent al placement.

Prong 2- Parents Did Not Provide Sufficient Proof That Student a 12-Month Program during the 2020-2021 School Year that included 20 hours a week of SEIT in the Summer of 2020 or any of the 2020-2021 School Year Was Appropriate.

Evidence of regression or complete information about Student’s needs were provided in the hearing by Parents. Parents did not provide any evidence of the appropriateness of the SEIT program Parent unilaterally chose and provided Student during the 2020-2021 school year. There is no evidence regarding student’s needs in 2020-2021 school year. Parent did not present Student’s SEIT as a witness or any other teacher or evaluator of Student to present her needs. The Progress Notes are insufficient on their face as evidence Student needed a 20 hour 1:1 SEIT program for an ESY 2020-2021. Nothing is known about Student’s other programming I the summer of 2020 or even any information about Student’s program at REDACTED for the 2020-2021 ESY.

Mother’s testimony appears credible but did not shed adequate light or provide adequate information to draw a conclusion the SEIT program Parent provided Student was necessary or appropriate.

As to the Parent’s argument that the District’s agreement to provide SEITH and related services during the pendency of the matter can not be deemed a “tacit agreement” as to the appropriateness of the program. Further, there is nothing in evidence that proves the District agreed to pay for the summer months of 2020 and actually did. Mother in her testimony was unsure if this was the case.

There is no proof of regression except for Parent’s agreement with Parent’s counsel’s question if the SEIT was to prevent regression and Parent did not state this was the reason for SEIT until this question was posed by Parent’s counsel. Prior to the posing of such question on regression, Mother testified Student’s SEIT hours were to support her in a mainstream environment in school. Further, there is simply no other evidence relating to regression. The Progress Notes do not mention regression of an ESY. In fact, it is unknown if Student was attending school during the time Parent seeks funding for SEIT in July. I note the SEIT hours were either early in the morning or late in the afternoon or evening, not during school hours as the program set forward in the FOFD that Parent relies upon for pendency. See P Ex. C-1.

. There was no evidence to establish any qualitative or quantitative information regarding the Student and why or how she would substantially regress or that the CSE was given any such information before the summer to determine twenty hours of 1:1 SEIT was necessary to stop substantial regression. The Progress Report does not even mention summer months, ESY or regression.

Ordinarily, a student is eligible for 12-month services when the period of review or reteaching required to regain the skill of knowledge level attained by the end of the prior school year is beyond the ordinary time reserviced for that purpose at the beginning of the school year, i.e. the typical period of review or reteaching ranges from twenty to forty school days for any student. A general guideline for determining eligibility for an ESY program is a review period of eight weeks or more would indicate that substantial regression has occurred. No evidence of the sort was offered or indicated as offered to the CSE.

Therefore is insufficient evidence in the record to support the appropriateness of the summer SETSS services. Parents did not meet the Prong 2 burden.

The evidence that would be necessary to show that Student would substantially regress would have been qualitative and quantitative evidence from the 2019-2020 school year that supported Student would regress if she did not receive summer SETSS. Student’s performance from the 2019-2020 school year is unknown except for the scant information in the June 2020 Progress Notes which are not entirely decipherable and were not supported by any witness testimony, from the SEIT..

There is no testimony as to what the SEIT worked on with Student during the 29.5 hours hours in the Summer of 2020 that Parents seek funding for.

I draw a negative inference from the failure to provide any evidence of Student’s needs.

Therefore, due to the Parents lack of any evidence that there is no basis for finding Student received appropriate services.

Prong 3- Equities

There is no evidence in the hearing record that Parents entered into a contract or had an obligation to pay the SEIT provider requiring Parents pay for the summer of 2020 SETSS services sought herein. While the Invoice was entered it would appear this was the invoice sent to the District and not Parent. Parent did not testify as to any obligation to pay and did not even know for sure the status of payments to the Provider.

No reason was given for why the Parents could not pay Provider and then request reimbursement. There is also no evidence in the record supporting the $175.00 an hour sought is a fair or equitable rate.

Therefore, with no conclusive proof of the services, a contract obligating Parents, why Parents are seeking direct funding and were never invoiced, evidence of financial injury to Parents and the appropriate relief. The equities do not support an order that District directly fund SEIT for the time period requested and the Parents’ request for a determination that SEIT services be funded at a rate of $175.00 for the two and a half weeks and July not covered by pendency.

Parents’ failure to prove Prong 2 or 3 alone is enough to deny Parents’ claim herein. The Parents’ request for a determination that the SEIT services should be funded for period requested in the July of 2020 must be denied due to inadequate evidence of appropriateness or that the equities favor Parents in that they are obligated to pay for the services funding is denied.

ORDER

IT IS HEREBY ORDERED that the Parents’ request for relief of payment of SEIT hours to REDACTED for the period of July 2 through July 14 under the DPC is denied.

SO ORDERED

Dated: October 28, 2022 _________________________

Stephanie Seto, Esq.

Impartial 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.

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.

PARENTS’ EXHIBITS

No. Description Date Pages

A. Amended DPC 10/22/20 3

B. FOFD 5/25/17 16

C. Vendor to DOE Invoice 7/2020 7

D. Progress Notes 6/2020 7

E. Pendency Agreement 11/252020 7

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits. The date in the record for the exhibit is in error.