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Special Education Law
DECISIONParent PrevailedIHO Case No. 203941

New York City Department of Education, Impartial Hearing Decision

April 11, 2022·Jean Marie Brescia·Representative

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 547434 - NYC: 203941

FINDINGS OF FACT AND DECISION

Case Number: 203941

Student’s Name: [REDACTED] [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: October 29, 2021

December 3, 2021

December 22, 2021

February 16, 2022

February 24, 2022

April 8, 2022

Actual Record Close Date: April 8, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

October 29, 2021 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

December 3, 2021 For the Parent:

[REDACTED], Legal Assistant For the Department:

[REDACTED], [REDACTED], District Representative

December 22, 2021 For the Parent:

[REDACTED], Esq.

[REDACTED] [REDACTED]

For the Department:

[REDACTED], District Representative

February 16, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

February 24, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

April 8, 2022 For the Parent:

[REDACTED], Esq.

[REDACTED] [REDACTED]

For the Department:

[REDACTED], District Representative

On October 22, 2021, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of [REDACTED] [REDACTED] after the appointment of another hearing officer was rescinded. [REDACTED]’s parent (“Parent”) requested the hearing on November 13, 2020, challenging the Department of Education’s failure to offer [REDACTED] a free appropriate public education for the 2020-2021 school year, specifically the failure to implement SETSS and Speech Therapy as mandated by an Individualized Education Services Plan (“IESP”), and seeking funding for an independent education evaluation at public expense, funding for SETSS at a “prevailing rate,” and compensatory SETSS for the services that the DOE failed to provide to [REDACTED] for the 2020-2021 school year. Parent’s Ex. G at 2-3.

A pre-hearing conference was conducted on October 29, 2021. At the pre-hearing conference, counsel for Parent stated that Parent, at the hearing, would be seeking a “bank” of compensatory hours of services to make up for services that [REDACTED] should have received but did not receive and was planning to amend the hearing request to expand the time period for which the Parent would be seeking compensatory services. Tr. 3.

Parent filed an amended demand, which was accepted on November 1, 2021. Parent’s Ex. A. The amended demand adds a challenge to the DOE’s alleged failure to implement an IESP in place during the 2019-2020 school year and seeks compensatory SETSS for the services that the DOE failed to provide to [REDACTED] for the 2019-2020 and 2020-2021 school years. Parent’s Ex. A at 2-3.

A pre-hearing conference after the amendment was conducted on December 3, 2021. Parent asserted that she continued to maintain the IEE claim as well as the compensatory education claims. Tr. 11-12. The parties made a joint application for an extension of the compliance date. Tr. 13-14. I granted the application by an Order of Extension dated December 3, 2021.

The Department’s Application to Dismiss the 2019-2020 Claims on Statute of Limitations The hearing on the merits was scheduled for December 22, 2021 and February 16 and 24, 2022. On December 22, the District Representative stated that the DOE would not be presenting a case, that the DOE and the Parent agreed on the number of SETSS periods to which [REDACTED] was entitled, and that the DOE was resting its case. Tr. 22. After Parent’s counsel completed an opening statement on behalf of the Parent, the DOE moved by oral application to dismiss the 2019-2020 claims on statute of limitations grounds, and both parties requested leave to file written memoranda of law on the statute of limitations issue. Tr. 27-29, 32-33, 37-38. A briefing schedule was set. But neither party complied with the briefing schedule, and no briefs were submitted.

On the record on February 16, 2021, I provided the parties the opportunity to present oral arguments with respect to the statute of limitations issue. The arguments of both parties were inapposite. Tr. 54-65. While Parent mentioned that an exception to the statute of limitations might apply, this argument was not developed and testimony or other evidence was not offered concerning the exceptions. See 20 U.S.C. § 1415(f)(3)(D)(i) & (ii).

I denied the Department’s application to dismiss the 2019-2020 claims on statute of limitations grounds. I ruled that the Parent could not challenge the 2017 IESP on statute of limitations grounds because that IESP was outside the IDEA’s two-year statute of limitations. See 20 U.S.C. § 1415(f)(3)(C). But Parent is not challenging that 2017 IESP; rather, Parent is challenging the implementation of that IEP (Tr. 63-64), and implementation claims within the two-year statute of limitations period should not be dismissed solely on statute of limitations grounds. Furthermore, since claims in an amended pleading relate back to the date of the filing of the initial pleading, Parent can assert implementation claims within the two-year statute of limitations from the date of the initial pleading, which was filed on November 13, 2020. See Fed. R. Civ. Proc. 15(c)(1)(B). As a result, the Parent’s implementation claims for the 2019-2020 school year may not be dismissed on statute of limitations grounds. Moreover, even if I were to grant the District’s motion, claims after November1, 2019 would not be time barred as they were within the two-year statute of limitations period at the time of the filing of the amended demand.

The Department did not object to [REDACTED] receiving five periods per week of SETSS for the 2020-2021 school year. Tr. 73-74, 96. The Department maintained its objections to relief for the 2019-2020 school year on statute of limitations grounds; the Department stated that it would not present any evidence with respect to the 2019-2020 school year. Tr. 74, 91, 94. Parent rested on the documents (A-G) admitted in evidence. Parent’s counsel elected to proceed with the hearing on February 24 despite his client ([REDACTED]’s mother) being unavailable to testify and despite having the opportunity to request an adjournment. Tr. 87-88.

At the hearing, Parent updated and clarified the relief sought: a bank of 245 hours of compensatory SETSS for the entirety of the 2019-2020 school year and the September 1 through November 13 portion of the 2020-2021 school year. Tr. 102.

After review of the Parent’s exhibits, I requested that the parties appear on April 8, 2022, in order to clarify what appeared to be a discrepancy in the record as to when [REDACTED] received SETSS. See Ex. C at p. 2.

Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

The record closed on April 8, 2022; and the Actual Record Close Date is April 8, 2022.

Findings of Fact

  • • [REDACTED] is [REDACTED]-year-old girl whose disability, for the purposes of the IDEA, is classified as speech or language impairment. Parent’s Ex. C at 1.
  • • [REDACTED] attends mainstream classes at a [REDACTED], [REDACTED], in REDACTED. Parent’s Ex. A at 1.
  • • [REDACTED] struggles with receptive and expressive language, social/emotional issues, and academics, in particular with reading decoding and comprehension and math. Parent’s Ex. B at 1-2; Parent’s Ex. C at 1-2; Parent’s Ex. F at ⁋ 2.
  • • On April 25, 2017, the Department’s CSE convened a meeting to develop an IESP for [REDACTED]. Parent’s Ex. B.
  • • The IESP notes that someone was looking for a SETSS provider for [REDACTED] and that [REDACTED] had not received speech therapy since 2015. Parent’s Ex. B at 1.
  • • The IESP recommends the following program for [REDACTED]: SETSS, five periods per week in a group in [REDACTED] and Speech-Language Therapy, two 30-minute sessions per week individually in [REDACTED]. Parent’s Ex. B at 6.
  • • There is no evidence of the CSE convening to develop an IEP or an IESP for [REDACTED] in 2018 or 2019.
  • • On October 21, 2020, the Department’s CSE convened a meeting to develop an IESP for [REDACTED]. Parent’s Ex. C.
  • • The IESP states that the WIAT-III had been administered to [REDACTED] and that her reading skills were at a Pre-K to first grade level and her math skills were at a mid-first grade level. Parent’s Ex. C at 1.
  • • The IESP also states that [REDACTED] “is making great progress in the areas of writing and reading” and at the same time states “Parent expressed concerns about [REDACTED]’s struggle with math, reading comprehension and difficulties with vocabulary and spelling.” Parent’s Ex. C at 2.
  • • The IESP includes the following series of statements: “At the end of the school year [REDACTED] will read and understand nonfiction stories on a beginner 9th grade level when given minimal or no prompts. [REDACTED] is able to receptively retell a story with the assistance of her teacher or provider.... Retelling story details [REDACTED] often needs assistance since she has difficulty decoding and that leads to her struggling to understand and to write a summary. With the assistance she receives from her provider, at the end of year [REDACTED] will be able to receptively retell a story with minimal/no prompt.... With the help of her provider [REDACTED] is solving math example using minimal prompting. [REDACTED] is doing well expressively. She is able to express her needs and concern appropriately. She has difficulty expressing a grade level story in the correct sequencing order. With the continued help of the provider [REDACTED] will do so independently.” Ex. C at 2.
  • • At the time that the IEP was developed in October 2020, [REDACTED] was not provided with SETSS or another “provider.” Tr. 4/8/22.
  • • The IESP recommends the following program for [REDACTED]: SETSS, five periods per week in a group in [REDACTED] and Speech-Language Therapy, two 30-minute sessions per week individually in [REDACTED]. Parent’s Ex. C at 5.
  • • In November 2020, Parent made telephone calls to independent SETSS providers included in the list of providers posted on the DOE’s website. Parent’s Ex. E; Parent’s Ex. F at ⁋ 4.
  • • Parent kept a phone log of her calls to SETSS providers. Parent’s Ex. E; Parent’s Ex. F at ⁋ 4.
  • • None of the providers she contacted were available to work with [REDACTED]. Parent’s Exs. E, F at ⁋ 4.
  • • On November 12, 2020, Parent informed the DOE in writing that she had been unable to locate individuals to provide SETSS and related services to [REDACTED] at the DOE’s “standard rate.” Parent’s Ex. D at 1. Parent stated that she had “no choice” but to secure SETSS and related services for [REDACTED] and seek reimbursement or direct payment for those services from the DOE. Id.
  • • The DOE did not provide a SETSS provider for [REDACTED] for the 2019-2020 school year and for the period from September 1, 2020 to November 13, 2020. Parent’s Ex. F at ⁋ 4.
  • • Parent is seeking a bank of 245 periods of SETSS for the 2019-2020 school year plus the weeks that [REDACTED] did not receive SETSS in the fall of 2020. Parent’s Ex. F at ⁋ 6.

Decision

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education (“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) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982).

The IDEA mandates that each state receiving federal special education funds must provide each student with a qualifying disability a FAPE. 20 U.S.C. § 1412(a)(1)(A). FAPE is provided when a school district (1) has complied with the procedural requirements of the IDEA; and (2) the IEP developed by the CSE is reasonably calculated to enable the student to make progress given the student’s individual circumstances. Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. § 300.320 (a)(1); 8 N.Y.C.R.R. § 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. § 200.4(d)(2)(iii), (v).

Under New York State Education Law § 3602-c, parents of students with disabilities have the right and ability to select a nonpublic school willing to enroll their child, and places the burden of developing and providing appropriate special education programming upon the school district in which such school is located. The school district must develop an appropriate program for the student in the environment in which the student will receive his or her education (i.e. – the nonpublic school). Section 3602-c expressly states that a school district of location’s CSE “shall develop an [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an [IEP].” Education Law § 3602-c(2)(b)(1). “The committee on special education shall 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. See, e.g., Application of a Student with a Disability, Appeal No. 21-245 at pp. 10-18 (description of districts’ responsibilities under § 3602-c and interplay with IDEA); see also Application of a Student with a Disability, Office of State Review No. 20-094; Application of a Student with a Disability, Office of State Review No. 20-087.

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i); 8 NYCRR 200.5(j)(4).

In New York, the school district bears the burden of proof in 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. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85. Here, the DOE did not present testimony or documentary evidence.

With respect to the 2020-2021 school year, it is undisputed by the DOE that [REDACTED] did not receive SETSS for the period from September 1 through November 13, as mandated by the IESPs that the DOE prepared for her. The DOE does not dispute that since [REDACTED] should have received SETSS as mandated by the IESPs, and the DOE was required by Education Law § 3602-c to provide those services. The DOE should be required, at this time, to provide the missed SETSS. I will create a bank of compensatory SETSS hours for [REDACTED] that will include 40 hours of SETSS as compensatory services for services missed during the approximately eight weeks at the beginning of the 2020-2021 school year.

With respect to the 2019-2020 school year, the record is sparse. One of the reasons the record is sparse because the DOE elected not to introduce any evidence. Since the DOE, the party with the burden of proof, did not adduce any evidence that it provided SETSS to [REDACTED] during the 2019-2020 school year, and since § 3602-c requires the DOE to provide services mandated in an IESP, the DOE is responsible, at this time, for making up those services that it did not provide. See, e.g., Application of a Student with a Disability, Appeal No. 21-245 at p. 13.

On the other hand, [REDACTED]’s mother, in her direct testimony by affidavit did not describe any of her efforts to notify the DOE that [REDACTED] did not have a SETSS provider or to obtain a SETSS provider for [REDACTED]. When [REDACTED]’s mother did testify on April 8, she explained that she was trying to find a SETSS provider for [REDACTED] but did not understand her rights. In any event, there are notations in the 2017 IESP that someone was looking for a SETSS provider for [REDACTED] and that [REDACTED] had not received speech therapy since 2015, so the DOE has had notice that there were problems with [REDACTED] receiving services. In addition, [REDACTED] was performing far below grade level and needed remediation with the most basic academic skills.

As a result, I will exercise my equitable authority to craft a remedy considering the following factors: (1) my conclusion that the DOE, the party with the burden of proof, that the DOE did not provide SETSS to [REDACTED] during the 2019-2020 school year; (2) [REDACTED] was performing far below grade level; (3) 180 hours is the proper number of hours (rather than the 200 hours sought by the Parent) because there are 180 days in a 10-month school year. Even though a private school may have more days in its school calendar, 3602-c relates to “equitable” services—as in services equitably-related to services received by students attending public schools.

Parent did not present any evidence or argument with respect to the IEE claim, and I deem that claim abandoned. Parent did not present any evidence with respect to missed speech and language therapy, and I deem this claim abandoned as well.

Therefore, for all the above reasons, it is ordered that:

1. The Department of Education shall fund for [REDACTED] a bank of compensatory services consisting of 220 periods of SETSS in [REDACTED].

2. The bank of hours shall expire on April 11, 2024, and any SETSS periods remaining at that time will be lost.

Dated: April 11, 2022

______________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the 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.

DOCUMENTATION ENTERED INTO THE RECORD

Letter

Date

Name of Document

Number of Pages

A 10/31/2021 Amended DPC 5

B 4/25/2017 IESP 9

C 10/21/2020 IESP 8

D

11/12/2020

TDN 2 E 11/2/2020 Outreach 2

F

12/21/2021

Affidavit of Parent

2

G

11/12/2020

DPC

4