New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 549300 - NYC: 205664

FINDINGS OF FACT & DECISION

Case No.: 205664

Student’s Name: [REDACTED]

(hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

(“District”)

Hearing Request by: [REDACTED]

(“Parent(s)”)

Hearing Dates: March 23, 2022

Record Close Date: May 4, 2022

Hearing Officer: Sebastian A. Weiss

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 23, 2022

For the Student:

[REDACTED] (“Parent Representative”)

For the Department of Education:

None.

BACKGROUND AND PROCEDURAL HISTORY

On January 7, 2021, the Parents filed a Due Process Complaint (“DPC”) against the New York City Department of Education (“District”) with respect to the 2020-21 school year. (Ex. A)^[1]. On February 10, 2021, the parties entered into an Agreement on Pendency. (Ex. F)

The undersigned Hearing Officer was appointed on November 19, 2021. A prehearing conference was conducted on December 3, 2021, and status hearings were conducted on January 10 and February 15, 2022. The hearing on the merits was conducted on March 23, 2022.

ISSUES AND ARGUMENTS

PARENT CASE:

The DPC alleges that the District failed provide the Student with a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) during the 2020-21 school year by not providing adequate special education teacher services. (Ex. A1)

The last agreed upon educational program for the Student was an Individualized Education Program dated 05/20/2019 (“2019 IEP”), which recommended six hours per week of special education itinerant teacher services (“SEITS”), as well as certain related services. (Ex. A1)

A “turning 5” IEP was subsequently developed which the Parents did not agree with because SEITS were not recommended. (T 38-9)

The Parent Representative sought to resolve the disagreement relating to SEITS with the District but was ultimately unsuccessful (T 38-9)

By entering into a pendency agreement, the District recognized that the 2019 IEP was the last agreed upon program. (T 43)

The Parent was not able to locate a SEITS provider to work with the Student at the District’s standard rates for the 2020-2021 school year due in part to the significant help that the student needs and to the unavailability of providers. (Ex. A1; T 28)

The Parent was able to locate a SEITS provider (“SEITS Provider”) who charges an enhanced rate is $125 per hour. (Id) The SEITS Provider is a qualified special education provider who has certificates in students with disabilities, birth to grade 2. (Id 30)

The Student requires the same SEITS and related services set forth in the 2019 IEP for the 2020-2021 school year. (Id 29-30)

The DPC seeks an award of six hours per week of SEITS at an enhanced rate for the 2020-2021 school year. (Ex. A1)

At the hearing, Parent Representative clarified the relief being sought. The Parent Representative stated that an order directing funding at a reasonable market rate for the services to be resolved with the District’s Implementation Unit would satisfy the Parent's relief. (T 28, 31)

In addition, the Parent Representative clarified the applicable time period of the relief being sought. The SEITS provided to the Student from the filing date of January 2021 through June 2021 are covered by the pendency order dated February 2, 2021 (“Pendency Order”). (Id 30-1) The Parent is seeking direct funding to the SEITS Provider for services rendered for the five month period from the beginning of the 2020-21 school year in September 2020 until the DPC filing date of January 5th, 2021, because the services for that time period are not covered by pendency or other authorization. (Id)

The other related services of Speech-Language Therapy (“SLT”) and Occupational Therapy (“OT”) are not at issue for purposes of this hearing. (Id 34)

As stated in the Parent’s affidavit submitted into evidence, the Parent recognizes that they are responsible for paying for the SEITS, and they also state that they [REDACTED] and cannot afford the payment. (Id 31)

The Parent presented seven documents into evidence. The Parent Representative indicated that the evidence was provided to the District and that no response was received. (Id 26, 28) The Parent did not present any witness testimony.

DISTRICT CASE:

The District did not appear at the hearing or otherwise present a case.

SUMMARY OF APPLICABLE LAW

Denial of FAPE:

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. 999, 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.”

Pursuant to New York Education Law §4404(1)(c), the board of education shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires the trier of fact to find that the existence of a fact is more probable than its nonexistence. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993). In other words, preponderance of the evidence is evidence that is more convincing than the evidence offered in opposition to it. Greenwich Collieries v. Director, Office of Workers’ Compensation Programs, 990 F. 2d 730, 736 (3rd. Cir. 1993), aff’d, 512 U.S. 246 (1994).

The decision in this case rests on a determination of the three-pronged “Burlington/Carter” test set forth by the United States Supreme Court, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).

Under the second prong of the Burlington/Carter test, the parents bear the burden of proving the appropriateness of the unilateral placement by showing that the unilateral placement offered an educational program designed to meet the Student’s special education needs. See Burlington, supra; M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 98-76. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

The Second Circuit Court of Appeals has held that a direct payment remedy can be an appropriate form of relief for privately-obtained services in some circumstances, and that "[i]ndeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework" (E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 [2d Cir. 2014]; see also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 430 [S.D.N.Y. 2011] [finding it appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, have not done so due to a lack of financial resources]).

FINDINGS OF FACT

For the 2020-21 school year, the Student was enrolled in a Kindergarten general education classroom at [REDACTED]. (A1, D1; T 29)

During the prior school year, on May 20, 2019, the District developed the 2019 IEP which recommended the following services for ten months: (Ex. B1)

• • SEITS six times per week, 60 minute sessions in a group of two in [REDACTED];
• • SLT two times per week, 30 minute sessions in a group of 2 in [REDACTED];
• • OT two times per week, 30 minute sessions in a group of 2 in English;

On February 8, 2022, the SEITS Provider prepared a Special Education Progress Report (“Progress Report”) which states that the Student is delayed in the reading, social, emotional, critical thinking domains. (Ex. D1) The Progress Report further states that the Student requires excessive individualized instruction in order to progress, and that the Student has made slow yet steady progress throughout the year with the assistance of the provider. (Ex. D1, 2) The Progress Report recommends that the Student continue with the services to assist the Student to perform on age appropriate level. (Ex. D2)

The evidence indicates that the SEITS provider has the following New York State Teaching Certificates: (Ex. E)

• • Early Childhood Education (Birth-Grade 2) Professional Certificate;
• • Students With Disabilities (Birth-Grade 2) Professional Certificate;

On February 10, 2021, the parties entered into a pendency agreement which provides the same services as the 2019 IEP for a period of ten months (“Pendency Agreement”). (Ex. F) Regarding the type of payment for the SEITS, the Pendency Agreement indicates direct payment to provider. (Ex. F1)

The Parent presented into evidence Vendor Monthly Service Invoice Forms of the SEITS Provider dated April 27, 2021. (Ex. G) The initial date of service indicated in the invoices is September 14, 2020, and the last date of service indicated is December 31, 2020. (Id)

The Parent’s evidence also includes an affidavit from the Student’s mother stating the Parents’ approximate weekly income and confirming that the Parents know that they are responsible to pay the SEITS provider. (Ex. C)

DECISION

Regarding the Parent’s claim of a denial of FAPE for the 2020-21 school year, based on a preponderance of the evidence standard I find that the District did not provide the Student a FAPE for the 2020-21 school year primarily because the District has the burden of proof and did not present a case in this regard. The 2019 IEP mandates SEITS, but the District did not appear to confirm whether these services were provided for the first half of the 2020-21 school year.

Regarding the Parent’s claim for direct payment to the SEITS Provider for SEITS delivered during the first half of the 2020-21 school year, I find that the evidence in the hearing record is insufficient to support such an award for the following reasons:

First, the evidence submitted does not indicate whether the SEITS delivered by the SEITS Provider was provided in a group of 2, as mandated by the 2019 IEP and Pendency Agreement.

Second, the evidence submitted is insufficient to establish that the parent lacks the financial resources, and is legally obligated, to pay the SEITS Provider, as required by the applicable case law. The only evidence submitted regarding the Parent’s financial resources and legal obligation to pay is an affidavit from the Student’s mother stating the Parents’ approximate weekly income and confirming that the Parents know that they are responsible to pay the SEITS provider. In particular, the evidence did not include a contract between the Parent and the SEITS Provider and did not include any other evidence regarding the Parents’ financial resources, such as a tax return.

ORDER

Based upon the foregoing, it is hereby:

• • ORDERED THAT, the District did not provide the Student with a FAPE for the 2020-21 school year; and
• • ORDERED THAT, the Parent’s claim for direct payment to the SEITS Provider is denied.

SO ORDERED

DATED: June 10, 2022

/s/ Sebastian A. Weiss

Sebastian A. Weiss

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.

PARENT EVIDENCE

Exhibit

Description

Date

Pages

A Impartial Hearing Request 1/6/21 4

B Individualized Education Program 5/20/19 5

C Parent Affidavit 2/10/22 1

D Special Education Progress Report 2/8/22 2

E List of provider’s certificates Various 1

F Agreement on Pendency 2/10/21 2

G Invoices Various 4

DISTRICT EVIDENCE

NONE.

Footnotes

[1] Exhibits, or “Ex.”, shall be referred to as follows: “P” for Parent Exhibit, which are otherwise indicated alphabetically; “D” for District Exhibit, which are otherwise indicated numerically; “CB” for closing brief; “IHO” for any Impartial Hearing Officer’s exhibits; and “T” for the hearing transcript, accompanied by the applicable hearing date if it is necessary to refer to more one hearing date.