New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 201932

NYS Case Identifier Number: N/A

Student’s Name:

REDACTED

Date of Birth:

REDACTED

Hearing Requested by:

Parent

Date of Hearing:

4/25/2022

Record Close:

5/17/2022

Hearing Officer:

Jennifer Arditi, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 26, 2022

For the Student:

[REDACTED] Advocate

For the Department of Education:

[REDACTED], District Representative

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

This matter was brought by REDACTED, mother of REDACTED (“Ms.

[REDACTED]” or “Parent”), against the New York City Department of Education (“DOE” or “District”) alleging that the District failed to provide a Free Appropriate Public Education (“FAPE”) for the 2020-2021 school year in that the DOE the Department of Education failed to provide [REDACTED] with a full time oral transliterator.

The hearing convened on April 25, 2022. The District did not present any documentary or testimonial evidence. Parent presented a documentary exhibit package, which was entered into the record. Prior to the conclusion of the hearing, the DOE requested that the Parent provide the Student’s Class Schedule. It was agreed that the Parent would provide the Class Schedule no later than April 29, 2022, and that the DOE would then determine if it wished to question any witnesses. The Class Schedule was provided on April 29. 2022. On May 17, 2022, absent a response from the DOE regarding whether it wished to question any witnesses, the record was closed.

DISTRICT’S POSITION The District offered no testimony or exhibits in support of its position.

• • PARENT’S POSITION The Parent’s Due Process Complaint Notice (“DPCN”) argued that the District had failed to provide the child, a Student with a Disability, with a Free Appropriate Public Education (“FAPE”) for the 2020-2021 school year since Department of Education failed to formulate an appropriate Individualized Education Services Program (“IESP”) for Student and with personnel knowledgeable of Student’s needs. Parent also alleges that Student is entitled to receive an Oral Transliterator as per the 2020-2021 IESP but that Parent was unable locate an Oral Transliterator at the DOE rate of reimbursement. Parent requests that the DOE pay the cost of the Oral Transliterator secured by Parent at the rate $80 per period of service for the 2020-2021 school year.

For the reasons detailed below, I find that the District did not provide Student with FAPE for the 2021-2022 school year.

FINDINGS OF FACT

Student is a [REDACTED] year-old boy classified with Hearing Impairment. Student is diagnosed with a moderate to severe/profound hearing loss, at least partially sensorineural in nature and asymmetrical at some frequencies, an [REDACTED] and a bilateral progressive sensorineural hearing loss. His hearing loss is profound in the left ear and moderate sloping to profound in the right ear. [REDACTED] Student has a hard time in noisy environments and uses hearing assistive technology device in school. (Parent Exhibit B)

On March 17, 2020, the Student’s Annual Review was held. On the date of the meeting, the Student was parentally placed. The CSE formulated an IESP which recommended the following: Special Education Teacher Support Services (SETSS) Direct Service, Language of Service: [REDACTED] 5 time(s) per week; Speech-Language Therapy Individual service Language of Service: [REDACTED] 5 x 30; Hearing Education Services (Individual) 4 x 30; Interpreting Services – Oral Transliterator (Individual Daily Full Time), Other Hearing Assistive Technology Individual Service Daily All day except lunch and gym.

The Parent obtained the services of an Oral Transliterator for the 2020-2021 school year through [REDACTED] at the rate of $80.00 per period of service for the 2020-2021 school year.

CONCLUSIONS OF LAW

The purpose behind the Federal Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a Free Appropriate Public Education (FAPE). 20 U.S.C. §1400(d)(1)(A). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. §1401(9). See 20 U.S.C. §1414(d). The appropriateness of an IEP is determined by assessing whether it was reasonably calculated to provide educational benefit at the time the IEP was formulated, not in hindsight. Antonaccio v. Bd. of Educ., 281 F.Supp.2d 710, 724-25 (S.D.N.Y. 2003); Application of the Board of Education of Harrison CSD, Appeal No. 04-34 (SRO 2004). An “appropriate” program is one that is reasonably calculated to induce meaningful progress considering the child’s unique needs and the District must show that it offered instruction “specially designed” to meet a student’s unique needs, Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017) Endrew F, 137 S. Ct. 988 (2017). 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, Walczak v. Florida Union Free School District, 142 F.3d 119 (2d Cir. 1998) supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129.

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.”

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 (NYS Educ. Law§ 4404(1)(c)).

Under New York State Education Law Section 3602-c, students with disabilities who are 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. The CSE of the district of location must develop an IESP in the same manner and with the same contents as an IEP. See: Memorandum from James P. DeLorenzo, re: Chapter 378 of the Laws of 2007, New York State Education Department, Sept 2007. 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 insofar 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” (Educ. Law § 3602-c[2][a]). 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. Additionally, 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. Except for in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing (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. Aug. 27, 2010]). While it may very well be permissible for a district to include the parent in the identification of a particular provider, especially if the parent is willing and able to do so, it does not follow that the responsibility to redress a parents’ inability to locate a provider is shifted permanently to the parent. See: Application of Student with a Disability, SRO Appeal 17-034. A district cannot be absolved of its statutory obligation to implement SETSS for the student simply by asserting that the parents did not engage the services of the SETSS providers of whom the district referred them. Id. The district has the obligation to provide services in conformity with the IESP. See: Evduc. Law § 3602-c(2)(a), (b)(1); 20 U.S.C. § 1401(9)(D); 34 CFR 300.17(d); see also 20 U.S.C. § 1414(d); 34 CFR 300.320.

It is undisputed that the IESP manded the services of an Oral Transliterator and that the Parent was unable to secure the services of Oral Transliterator at DOE rates and obtained the services of an Oral Transliterator through REDACTED at the rate of $80.00 per period of service for the 2020-2021 school year. There was no evidence submitted by the DOE to dispute the Parent’s claims, regarding the DOE’s efforts to secure the services of an Oral Transliterator or the availability of an Oral Transliterator at DOE rates.

ANALYSIS:

• • Denial of a Free Appropriate Public Education:

Here, the DOE denied Student a Free Appropriate Public Education for each school year and did not submit any evidence either documentary or testimonial.

• • Appropriateness of Unilaterally Obtained Services:

Having already found that the District failed to provide FAPE, it is now necessary to discuss the appropriateness of Parent’s requested relief. This Burden of Proof rests with the Parent under prong II of the Burlington-Carter test.

Although the State Education Law places the responsibility for implementation of the services set forth in an IESP on the district, there was no point during the impartial hearing where the district offered any evidence that it attempted to select or assign a provider to deliver the services required by the student's IESP. There was also no explanation from the District as to why it did not provide the services, at which time Parent would have had the responsibility to produce the Student for such services. This left Parent with no other option than to locate a provider on Parent’s own.

This failure on the part of the District to meet its obligation to find a provider to implement services at an acceptable rate is unacceptable as that it is the District’s nondelegable responsibility to ensure that services are delivered, whether in accordance with an IESP, an IEP, or pursuant to the stay put rule, and cost is not a permissible reason to defer or avoid the obligation to implement a student's services (see Application of a Student with a Disability, Appeal No. 20-087; Educ. Law § 3602- c[2][a]; [7][a]-[b] [providing that "[b]oards 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" and that the cost for services is recoverable from the district of residence, either directly with the consent of the parent for a district of location to share information or through the Commissioner of Education and the State Comptroller]). 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, districts can be made to pay for a privately obtained parental placement, a process that is essentially the same as the federal process under IDEA. "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 [IESP] dispute is resolved, if they satisfy a three part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted], cert. denied sub nom., Paulino v. NYC Dep't of Educ., 2021 WL 78218 [U.S. Jan. 11, 2021], reh'g denied sub nom., De Paulino v. NYC Dep't of Educ., 2021 WL 850719 [U.S. Mar. 8, 2021]; see Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] ["Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).

Therefore, a dispute such as the instant matter should be examined using a Burlington/Carter unilateral placement framework because the administrative due process system was not designed to set rate-making policies for what has grown into a completely unregulated cottage industry of independent special education teachers that parents within the New York City Department of Education are increasingly reliant upon, an industry that is not authorized by the State in the first place. (See: Application of a Student with a Disability, Appeal No. 21-101).

Accordingly, Parent's request for District funding must be assessed under this framework; namely, having found that the district failed to offer or provide appropriate equitable services, the issue is whether the periods of services obtained by Parent from the Provider constituted an appropriate unilateral placement of Student such that the cost of the services is reimbursable to Parent or, alternatively, should be directly paid by the District to the provider upon proof that the Parent has paid for the services or is legally obligated to pay and does not have the means to do so. “Parents are required to cooperate with the provision of services by producing a child for services properly arranged for by the district. The State Education Department only permits local educational agencies to contract for the use of teachers and personnel in private settings that have been approved by the Commissioner of Education, and upon such approval the State's rate setting unit routinely addresses the issue of establishing local rates that districts may pay such private entities (see http://www.oms.nysed.gov/rsu/).” See: Application of a Student with a Disability Appeal No. 21-101.

As a result, the question of rate is somewhat beside the point as the cost of the services under the Burlington-Carter test, must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs sought to be reimbursed are excessive or otherwise should be reduced or, in the case of direct funding, the Parent has not demonstrated a legal obligation to pay the costs and an inability to do so.” (See: Application of a Student with a Disability, Appeal N0. 21-101.

Here, the appropriateness of the services delivered to the student by the provider during each school year is not in dispute in this matter and the Department of Education neither called any witnesses and there was no documentary evidence provided by the Department of Education to dispute any of Parent’s claims. Moreover, Parent submitted a contract with the Private Agency indicating her obligation to pay for said services (Parent Ex-C). As a result, the question of rate is somewhat beside the point as the cost of the provider under the Burlington-Carter test, must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs sought to be reimbursed are excessive or otherwise should be reduced or, in the case of direct funding, the Parent has not demonstrated a legal obligation to pay the costs and an inability to do so.” (See: Application of a Student with a Disability, Appeal No. 21-101.

ORDER

IT IS HEREBY ORDERED that the New York City Department of Education is directed to fund the cost of an Oral Transliterator at the rate of $80.00 per period of service for the 2020-2021 school year by (a) reimbursing the Parent within thirty (30) days of the submission of a copy of proof of payment for any payments made; and (b) by issuing direct payment within thirty (30) days of the submission of an affidavit setting forth the balance due.

IT IS SO ORDERED.

Dated: May 31, 2022,

______________________________

Jennifer Arditi

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 proceedings 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.

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• • EXHIBITS

PARENT EXHIBITS

A 2020-09-24 Impartial Hearing Request 4 pages

B 2020-03-17 Individualized Education Services Program 10 pages

C 2020-09-16 Retainer Agreement 2 Pages

D 2022-03-24 Affidavit of Services

E Oral Transliterator Description 1 Pages

F Program Description 4 Pages

G Oral Transliterator Training 10 Pages