New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT & DECISION

Case No.: 208865

SED No.: 552729

Student’s Name: REDACTED

(hereinafter referred to as “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Request by: REDACTED

(hereinafter referred to as “Parent” or “Mother”)

Hearing Dates: August 10, 2021, August 18, 2021, October 28, 2021, February 17, 2022, March 29, 2022, May 12, 2022 and July 18, 2022

Actual Record Close: October 19, 2022

Hearing Officer: Stephanie Seto, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 10, 2021

For the Student:

REDACTED, Esq.

For the Department of Education:

REDACTED, District Representative

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

For the Student:

REDACTED, Esq.

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 28, 2021

For the Student:

REDACTED, Esq.

For the Department of Education:

REDACTED, District Representative

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

REDACTED, Esq.

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 29, 2022

For the Student:

REDACTED, Esq.

REDACTED., Law Clerk

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 12, 2022

For the Student:

REDACTED, Esq.

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 18, 2022

For the Student:

REDACTED, Esq.

REDACTED, Esq.

REDACTED, SETSS Provider, REDACTED

For the Department of Education:

NONE

INTRODUCTION

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents Due Process Complaint (“June 2021 DPC”) filed on or about June 16, 202021 (P-Ex. A)^[1]. The DPC alleges the New York City Department of Education (the “District” or “DOE”) failed provide Student with a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) (20 U.S.C. section 1415, et seq.), Sections 4404(1) and 3602-c of the New York State Education Law (NYS “dual enrollment statute”) and attendant Federal and New York State Regulations against, asserting student should have received an extended school year (“ESY”) with special education teacher services (“SETSS”) during the summer of 2020. On July 23, 2021, I consolidated this matter with the July 6, 2021 DPC alleging a failure to provide Student with a FAPE for the 2021-2022 school year (formerly case number 210258). P Ex. B, DPC dated July 5, 2021.

As set forth in the record, Parent only sought a determination on the merits regarding the entitlement to SETSS for ESY during the summer of 2020. Tr. 109-123. Parents seek a finding awarding SETSS services of ten hours a week for summer services for the 2020-2021 school year (i.e., 2020 summer) to be directly funded to the provider Parent arranged to provide such services at an enhanced rate of $150.00 per hour. Tr. 118-119. Parents seek a total of forty-five hours for the period of July 28, 2020 through August 28, 2020. P Ex. D.

Parents’ counsel made clear Student received all of the relief sought for the 2021-2022 school year through pendency and no relief relating to the regular 2021-2022 school year was sought in the hearing on the merits. Tr. 102-129.

A list of the documentary evidence submitted is appended to this Order. The compliance date was extended per the parties’ requests to allow the parties to prepare fully and time to obtain transcripts and issue a Finding of Fact and Decision in this matter.

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on June 16, 2021.

As discussed above, DPC 208865 and 210258 were consolidated in July of 2021 and a Pendency Order was issued on September 27, 2021. Tr. 102-129.

Parents’ counsel only sought a finding on the issue of an ESY for the 2020 Summer and funding for SETSS that Parents asserted they obtained for Student as the issue to be determined in the Findings of Fact and Decision herein and addressed at the hearing on the merits ultimately heard on July 18, 2022. Therefore, the procedural history, findings of fact and decision shall be limited to those facts and issues relevant to the issue of Parents request for funding at an enhanced rate of 10 hours of SETSS a week from July – August 2020.

Parents in the hearing on the merits and in the June 2021 DPC maintain that Student should have received an ESY with bilingual Yiddish SETSS 1:1 10 hours a week as Student was mandated for in the summer of 2018 pursuant to a summer IEP developed by the Committee on Pre-School Education (CPSE). Tr. 102-129; P Ex. A and C. The CPSE IEP dated June 20, 2018 (“June 2018 CPSE IEP”) mandated bilingual Yiddish SETSS 1:1 10 hours a week with Speech and Language Therapy (S/L T) three times a week for 30 minutes 1:1 and Occupational Therapy (OT) three times a week for 30 minutes during the summer of 2020 (July 2, 2018 – August 31, 2018) pursuant to a reconvene to prevent regression. Tr. 102-129; P Ex. A and C.

The June 2021 DPC asserts Student needed 10 hours of SETSS a week in the summer of 2020 due to Student regression and asserts Parents notified the District it was obtaining such services at an enhanced rate for the summer on July 27, 2020. P Ex. A-1.

Several hearings and status conferences were held in this matter. Tr. 1-93. It is noted that the District requested to go forward with a hearing on the merits on the issue of the Parents’ request for funding for the Parentally obtained SETSS during the summer of 2020. Tr. 52. On March 29 a status conference was held to discuss setting the hearing dates and the hearing and District did not appear. Tr. 61-65. The hearing was set for May 12, 2022, but District emailed less than an hour before the hearing and requested and adjournment and did not appear; Parent agreed to hold the hearing on a rescheduled date. Tr. 77-91. On July 18, 2022 the hearing on the merits was held and District failed to appear. Tr. 93-135.

Parent presented two witnesses: (1) REDACTED (“REDACTED”) who testified he was Student’s Special Education Itinerant Teacher Services (SEIT ) provider during the summer of 2020 through REDACTED Services (Tr. 134-135), and (2) REDACTED (“REDACTED”), Administrator of REDACTED Educational Services (“REDACTED”) who provided an affidavit of services for provision of 1:1 SETSS services for Student for the 2020 summer. P Ex. D.

Parents’ Position The District denied Student a FAPE by failing to grant Student SETSS services in the Summer of 2020 as Student required SETSS services during the ESY to prevent substantial regression, and Student should have been mandated for ten hours of SETSS a week in the summer of 2020. Tr. 105, 117. Parent seeks direct funding of such SETSS services Parent unilaterally arranged for Student during the Summer of 2020 from July 28, 2020 through August 28, 2020 at an enhanced rate of $150.00 per hour for a total of $6,750.00 for a total of 45 hours of SETSS sessions Student received during that time period. Tr. 118-121; P Ex. D. It is noted that the IHO indicated to Parents’ counsel that a Burlington/Carter test was appropriate for examining the issues presented. Tr. 85-87; 104. Parents’ counsel disputed the application of Burlington/Carter asserting the District did not provide the services to Student and required Parent to find a provider on their own. Tr. 120-121.

District’s Position

Prior to the hearing, District’s position was Student was not entitled to Summer services. District failed to appear at the final the status conference or dates for a hearing on the merits and did not make an opening or closing statement.

No closing briefs or statements were submitted by either party and Parent’s counsel indicated a preference not to submit such a closing. Tr. 140-141.

FINDINGS OF FACT

Student turned REDACTED years old in the summer of 2020. P Ex. A-1 and C-1. During the 2020-2021 school year Student was a second-grade student at REDACTED, a religious private school; this is extrapolated from a REDACTED progress report from May of 2021. P Ex. G. Parent presented no information about where or whether Student attended school or if Student attended school during the summer of 2020. Tr. 135-139; P Ex. A -J.

Student received special education services as a preschool student pursuant to a preschool IEP. P Ex. C. In June of 2018, when Student was REDACTED (prior to Kindergarten), the CPSE granted Student summer services pursuant to a reconvene IEP meeting held June 20, 2018 that resulted in an IEP that recommended 10 hours of SEIT direct service for two hours five times a week; Physical Therapy 1:1, 3 time per week for 30 minutes, Speech-Language Therapy 1:1, three times a week for 30 minutes for July and August of 2018. P-Ex. C-1-14. The June 2018 IEP is an IEP that granted these services for the summer months of 2018 only. P-Ex. C-1-14. The IEP states that 10 months of services had not been sufficient to prevent regression in the areas of language, attention and socialization and recent reports indicate Student’s needs can be met in a less restrictive setting than a special class. P Ex. C-1. During the pendency hearing in this matter, the District agreed that the last agreed upon program was the June 2018 IEP or that pendency for 12 months of services lies in the June 2018 IEP. Tr. 15-18.

No information was presented as to Student’s programming or school placement from Kindergarten through first grade (from September 2018 through June 2020).

An IESP was developed for the 2020-2021 school year pursuant to an IESP meeting on July 21, 2020 attended by REDACTED, REDACTED, a Related Service Provider or Special Education Teacher, Parent REDACTED (Mother), REDACTED, District Representative, and a Speech Pathologist, REDACTED. P Ex. E (“2020 IESP”). The IESP states Student “is Parentally Placed in a Non-Public School” but does not state the school. P Ex. E-9.

The Student is classified with Speech and Language Impairment. P Ex. E-1. The July 2020 IESP recommends: (i) SETSS five periods twice week once a week in group service in Yiddish; (ii) Occupational Therapy (OT) 1:1, 3 time per week for 30 minutes,; (iii) Speech-Language Therapy (S/L T) 1:1, Yiddish, three times a week for 30 minutes; (iv) Counseling Services 1:1 once a week for 30 minutes and once a week for 30 minutes in a group both in Yiddish. P Ex. E-6. Student was also given extra time on testing and some other testing accommodations. P Ex. E-9. The program in the 2020 IESP is for 10 months of services for the 2020-2021 school year to begin on September 5, 2020. P Ex. E-1 and 6-7.

The July 2020 IESP does not indicate any discussion of Student’s need for summer services. P Ex. E. There is no information that Mother or any other party requested the CSE provide summer services to prevent regression before or in the summer of 2020 other then the July 27, 2020 DPC. As discussed below the DPC does not include a clear statement that Parents intended to unilaterally provide Student with a program during the summer of 2020. P Ex. J.

The July 2020 IESP provided no evaluations of Student. P Ex. E-1. The July 2020 IESP does not state if Student was presently enrolled in summer classes. P Ex. E. Student is described as reading on Kindergarten level. P Ex. E-1. Student had difficulty decoding and with reading fluency and struggles with language with limited vocabulary. P Ex. E-1. The IESP does not describe Student’s math issues but includes a goal for math. P Ex. E-1-2.

Each of the goals in the IESP include numerous goals rolled into one goal for a subject area, for example Student’s math goal includes the following: add and subtract to 100; 2 and 3 multiplication tables by rote, identify the correct function (+ or -) when given one or two step problem and identify words in a problem that are extraneous. P Ex E.-4. There are numerous methods listed for achieving the goal such as class activities, teacher/provider/observation, portfolios and teacher made materials. P Ex. E-4. All goals are constructed in this manner. P Ex. E- 4-6. There are no management needs recommendations. P Ex. E.

Student’s Speech “teacher” (referenced herein as “Speech provider”) reported Student has many difficulties with expressive language in Yiddish and does understand English. P Ex. E-1. The Speech provider expressed her belief Student would “best be serviced in a 1:1 setting (although it is unclear if this is speech only or across all domains and subjects) and his “Teacher” said Student did better working 1:1. P Ex. E-2.

Student is described as having social issues due to his inability to express himself. P Ex. E-1. Mother and Speech provider described Student’s social issues in that he does “not accept “no”, does not share, could not follow social signals, was easily frustrated and tantrums and yells, has a “hard time socially” and does not play with children directly and engages in parallel play. P Ex. E-2. Student did not follow routines and is not compliant. P Ex. E-2.

Student could dress himself and jump on a trampoline but would not run or jump on the ground. P Ex. E-2.

Student is also reported to need pre-learn and is able to “catch up with 85% of the classroom work when pre-taught and assisted at the end of every week” and requires “both push in and pull-out services.” P Ex. E-1.

The IESP reports Mother’s preference is for Student to attend a general education program with supports along with her concerns regarding his “many deficits and requires a lot of support.” P Ex. E-1.

The IESP does not include management needs other than the following: Student “should be able to succeed in a general education setting.” P Ex. E-2. This is repeated in the section “effect of Student Needs on Involvement and Progress in General Education Curriculum” P Ex. E-2.

Parents provide no information as to the need for extended school year services (summer 2020 services).

The IESP does not address the need or any request for ESY services or regression. There are no reports or information regarding Student’s progress during the prior school year. There is no quantitative information regarding Student’s needs for certain programs and services provided.

No evidence is provided regarding the basis for Student’s “substantial regression” in 2020 other than the testimony of REDACTED. When asked why Student needed special education teacher services REDACTED testified that Student had difficulties with reading and math, but REDACTED did not remember any diagnosis or classification of Student. Tr. 135, 139.

REDACTED was unsure if Student was entering 2nd or 3rd grade in the 2020-2021 school year. Tr. 135. REDACTED testified Student had the same or similar reading issues recounted in the July 2020 IESP. Tr. 135 and P Ex. E.-1. REDACTED testified that for reading Student “was not at grade level. But approaching grade level.” Tr. 136. REDACTED also testified that Student had issues with Math such as number concepts, addition and place value. Tr. 136.

REDACTED testified that Student’s “parents and school” requested the summer services be provided to student. Tr. 136-137. REDACTED testified that when Student had a “little” break from school “he fell back” and “we didn’t want he should fall back all the way from all his winter studies and get to the new grade without knowing nothing.” Tr. 137. REDACTED testified the school (unidentified) “were afraid that if.. [Student] did not have service, he will have to repeat the grade again.” Tr. 137. REDACTED testified he worked with Student four to five sessions a week and he would notice issues after a holiday or vacation regarding a need to go over previously learned concepts and depending on the gap in time from the vacation or break turned on how much time it took to reteach concepts. Tr. 137-38. REDACTED testified indefinitely as to regression following “gaps” except to state it would take a few days to regain his knowledge – depending on how big the gap was.” Tr. 138.

Parent offered two progress reports from REDACTED from May of 2021 and January 1, 2022 to support the REDACTED regarding substantial regression. These documents do not cover the time period prior to the request that student exhibited substantial regression necessitating ESY services in the summer of 2020. See P Ex. F and G. A the time of the May 2021 report Student is a year older then he was at the time he would have been accessed for the need for summer services in 2020. This progress report states Student has made minimal progress with10 hours a week of SETSS and other services provided. P Ex. G. Student “reading skills are very below grade level.” P Ex. G-1. It is reported Student is two years behind and needs daily practice in reading. P Ex. G-2.AS for writing Student can only trace letters and numbers at the end of 2nd grade. P Ex. G-2. Student’s math skills also appear to have not advanced in any appreciable manner from REDACTED’s minimal description in his testimony or the goals set forth in the IESP. P Ex. G-2. The 2020 July IESP goals do not match up to the problems described in the progress report and REDACTED did not express the student’s “issues” in any detail as expressed in the REDACTED reports, such as the inability to compute without manipulatives. P Ex. G-2-3. Student made little progress with expressive language and is described with significant receptive language skills. P Ex. G-3. There is reported some improvement in Student’s socialization skills. P Ex. G.4. The only mention of regression is the need to keep Student’s current service hours to “hopefully prevent regression” and “meet academic standards of peers.” P G-4.

The January 2022 Progress Report indicates Student was getting four hours a week of 1:1 services. P Ex. F-1. In reading Student is reported as “below average” but his grade level is not reported. It is reported he is two grade levels behind in phonics and cannot remember sight words that are taught, and “daily practice” is needed. P Ex. G-1-2. Again, Student’s writing ability has barely improved, and he still must trace letters. P Ex. G-2. It is mentioned Student’s language at home and in class is Yiddish and he has limited English language and vocabulary. P Ex. G-1. The description of Student’s math abilities and need for manipulatives is almost exactly the same as the May 2021 report with no discernable progress. See P Ex. G-2-3. The same is true for Expressive and Receptive language. P Ex. G-3-4. Student does not progress socially in the 2020 IESP or the Progress Reports and in fact may have regressed in 2022 as he is described as having issues with aggression, has a hard time handling “no” or losing, can’t deal with not getting his way or changes to plans or routine and is acts inappropriately and does not speak to peers and adults appropriately or have an awareness of social space when speaking to others. P Ex. G-3-4. Confusingly it is recommended that Student continue with 1:1 10 hours of SETSS again to prevent regression and meet academic standards when at the beginning of the report it is stated he is receiving four hours. P Ex. G-4.

It is noted that the record indicates Student received summer services in 2021 and 10 hours of SETSS for the 2021-2022 school year. Tr. 1-141.

Parent originally disputed the 2020 IESP in a DPC #196693 filed on July 27, 2020 (“2020 DPC”) which was withdrawn prior to the DPCs heard herein pursuant to a termination order without prejudice. P Ex. H and J-1-3. The REDACTEDs regarding the 2020 summer months were refiled in the June 2021 DPC. Tr. 125-131; P Ex. and J. At the time the July 2020 DPC and the July 2021 DPC were filed, Parents and Student were out-of-state residents and resided in REDACTED, with Student enrolled in a private school in the District identified as REDACTED. Tr. 125- 131; P Ex. A and J-1. The July 2021 DPC states the Student and family were residing in Brooklyn in July of 2021. Tr. 12-20; P Ex. A, E and J.

The July 27, 2020 DPC asserts Parent disagrees with the July 2020 IESP and Student requires a 12-month program of the same ten hours per week of bilingual Yiddish special education teacher services and related services Student received in the Pre-school CPSE from the June of 2018. P Ex. J-1 for a 12P Ex. C-2. The July 27, 2020 DPC also states Parents located a provider that is “willing to provide the student with all required special education teacher services for the 2020-2021 school year” at an enhanced rate and seeks an allowance of funding for payment to the student’s special education teacher services at an enhanced rate for the 12-month school year as relief. P Ex. J-1-2.

No “Ten-Day Notice” was entered into the record or other evidence or testimony that Parent would provide Student with ten hours of bilingual special education teacher services during the Summer of 2020, where these services would be provided or any other information regarding the services. The May 11, 2022 Affidavit of REDACTED offered as testimony sates Student was provided with 1:1 special education SETSS services for the 2020 summer for a total of 45 hours delivered as 10 hours per week from July 28, 2020 through August 28, 2020 at a rate of $150.00 per hour for a total of $6,750.00 which Parent had not paid to date. P Ex. D.

There is no testimony or information about a contract between Parent and REDACTED or that Parent was invoiced for the services provided in the summer of 2020.There is no testimony regarding the basis of the rate for the summer services for which Parent seeks funding or what REDACTED was paid (the SEIT or SETSS provider). REDACTED testified he provided SEIT services to Student, and he testified he worked through a provider named REDACTED.^[2] Tr. 135-139.

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.

Out-of-state Students with disabilities that are parentally placed in nonpublic schools located in New York State are subject to protections of N.Y.S. Ed. Law § 3602-c to a limited extent. N.Y.S. Ed. Law § 3602-c(2-a) and (2-b); Guidance Memo on 3602-c. § 3602- does not extend to out-of-state students the same protections and benefits as students that reside in New York. Id. The law states that a school district is obligated to provide special education services to “the extent required by federal law pursuant to section 20 USC § 1412(10)(a)” including but not limited to “equitable provision of services, child find and consultation requirement.” N.Y.S. Ed. Law § 3602-c(2-a). The CSE of a district of location shall be responsible for “evaluation and possible identification as a student with disabilities of all students attending nonpublic schools located within the school district, including students who are not New York residents.” Id. A school district of location shall only be responsible for provision of education and programs to non-New York resident students to the extent required by Federal law and regulations and such students shall not have an individual right to receive special education programs and services pursuant to these sections. N.Y.S. Ed. Law § 3602 (2-b). Parental written request for services shall not apply to out-of-state students except relating to the school district of location except that a parent may bring a due process complaint relating to the school districts of locations relating to compliance with “child find” requirements, including evaluation requirements. N.Y.S. Ed. Law § 3602 (2-b); see also, Guidance Memo on 3602-c. The Guidance of Memo on 3602-c also discusses the limitations of the application of 3602-c to child find requirements as set forth in the Federal regulations 34 CFR § 300.131(f). The Guidance Memo states, “Since out-of-state resident students have no individual right to services, there is no right to mediation or an impartial hearing for disputes regarding services.” Guidance Memo on 3602-c, Attachment 1, Sec. IV.

The Guidance Memo and § 3602-c(2-a) and (2-b) discuss the limitations and rights of out-of-state students placed in a private school in a district of location once a student has been found to have a disability pursuant to child find the limitations on the type of a due process complaint an out-of-state family may bring relating to child find. A school district of location is obligated to provide special education services to an eligible student who legally resides in another state and is parentally placed in a nonpublic school located in New York state only to the extent that such services provide the student equitable participation in the services funded with federal IDEA funds. N.Y.S. Ed. Law § 3602-c(2-a); see also Guidance Memo on 3602-c, Attachment 1, Sec. IV. A school district shall be responsible for evaluation and possible identification as a student with disability of all students attending nonpublic schools, including out-of-state resident students. The services to be provided to out-of-state students must be documented on a Services Plan that is developed by the CSE of the District of location. Id. The Services Plan is the written plan that describes the specific special education and related services that the District of location will provide the student, consistent with the services that the school district of location has determined though the consultation process be provided to such students in relation to the proportionate share of federal IDEA Part B dollars. Id.

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)’ REDACTED 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

While this matter may have appeared to be a “very straightforward” matter involving a clear denial of FAPE, it is not a simple “rate enhancement” case as asserted by Parents’ counsel as Student did not have a mandate for the summer SETSS for which Parents seek funding. Therefore, a Burlington-Carter analysis is appropriate.

Before addressing the B Burlington-Carter analysis, I will first address the legal effect that Student was an out-of-state resident.

Parents’ Did not Have A Right to A Determination on the REDACTED For Direct Funding of 10 hours a Week of 1:1 Bilingual Yiddish SETSS During the Summer of 2020.

The DPC at issue sought relief relating to a dispute regarding services. As Student and his family did not live in New York State during the Summer of 2020, Parent had no right to a determination with regard to the REDACTED for services under § 3602-c.

Even if Student resided in-state, as discussed below, Parent failed to prove Prong II and on Prong III as Parent failed to establish the 2020 summer SETSS were appropriate or that equities favored Parent; therefore, Parent was not entitled to funding for the summer 2020 services due to failure to prove Prong II and failure on Prong III. Further, although there is a denial of FAPE for the regular 2020-2021 school year (if one were to assume Student was entitled to services under 3602-c), there is no basis to find a denial of FAPE for the summer of 2020 due to the evidence in the record and 3602-c only requires a program be developed and provided for a ten month school year, and Parent would have to seek and deliver to the CSE information that student would be subject to substantial regression in each particular summer that regression is asserted as a the basis for providing an IEP for the summer months in any particular school year, as an IESP does not cover the summer.

Prongs I-III are examined as if Parents and Student had a right to a determination via an impartial hearing on the dispute regarding summer services.

Prong I- Denial of FAPE

Student was denied a FAPE as the District failed to carry their burden as District did not appear and did not put on an affirmative case to carry their burden of proof. Further, the IESP for 2020 was inadequate in establishing Student’s present levels of performance (PLOPS) and individual needs as no evaluation of needs or complete statement of needs, academic achievement, performance and learning characteristics were included in the July 2020 IESP. The 2020 IESP also did not include appropriate goals. But as stated above, an IESP by statutory design only covers the regular school year or a ten-month school year from September through June.

Parent Did Not Provide Sufficient Proof That Student Required a 12-Month Program during the 2020-2021 School Year that included 10 hours a week of SETSS in the Summer of 2020.

There is no evidence that there was a denial of FAPE due to the assertion the District should have offered a 12-month program that included the summer of 2020.

§3602-c, by its very terms, is limited to a provision of programs or services during the course of the “regular” school year. See 3602-c(1)(a). The Guidance Memo on 3602-c providing guidance on a district’s obligations under 3206-c indicated that districts are not required to provide dual enrollment services to students with disabilities during the summer. Guidance Memo on 3602-c, p.14. Therefore, an IESP can only be for ten months per statutory law.

As is the practice in New York, a student with a 10-month IESP may receive 12 months of services to prevent regression any particular school year through the provision of an IEP for those summer months when a student requires 12-month services to prevent regression. See R. G. v. NYC Dep’t. of Educ., 18 cv-11219 (S.D.N.Y. Jan. 24. 2022); SRO Appeal No. 20-094; Questions and Answers on Individualized Education Program (IEP) Development, The State's Model IEP Form and Related Documents," at pp. 39-40, Office of Special Ed. [Apr. 2011], http://www.p12.nysed.gov/specialed/formsnotices/IEP/training/QA-411.pdf.

§3602-c only pertains to children of compulsory school age and parental placements in elementary and secondary schools and does not cover preschool. See 3602-C(1)(d); N.Y. Ed. Law 3202(1) and 4401(1); Guidance Memo on 3602-c, p. 13. It does not apply to a child who is less than compulsory school age continuing in a preschool program, even if the preschool program is located in the same building as a kindergarten or other elementary classrooms. Id. New York regulations state a student shall be deemed a preschool student with a disability through the month of August of the school year in which student first becomes eligible to attend school pursuant to § 3202 of the Education Law. 8 N.Y.C.R.R. 200.1(mm)(2).

There is no evidence Parent approached the CSE and requested a summer program prior to the summer of 2020, thereby creating an obligation for the CSE to provide a summer of 2020 IEP program. No evidence was presented that Parent ever requested a summer program due to regression when there was an IESP meeting on July 21, 2020 or that a ten-day notice was provided to District alerting them that Parent was going to unilaterally implement a summer program of ten hours a week of SETSS at an enhanced rate. As required, the IESP for the 2020-2021 school year provided services for a “regular” school year.

There is no evidence of requests for a summer program due to regression or that Student had an IESP for the 2019-2020 school year as none was offered in evidence. Such a request for summer services would be Parents’ responsibility pursuant to § 3602-c. Parents must make such a request each year and provide proof for each year when seeking services under § 3602-c. REDACTED, who was at the July 2020 IESP meeting, did not testify to anything regarding that meeting or anything communicated to the CSE as to substantial regression at the IESP meeting or otherwise to the District or CSE at any time.

REDACTED only testified briefly as the Parents’ and School’s general concerns regarding regression, i.e., that Student would fall behind over the summer and would not be able to advance to the next grade. There was no evidence to establish any qualitative or quantitative information regarding the Student and why or how he would substantially regress or that the CSE was given any such information before the summer to determine ten hours of 1:1 SETSS was necessary to stop substantial regression. Parents’ counsel stated at the merits hearing, he had no information regarding the 2019-2020 school year. Tr. 122. Parents’ counsel admitted that he knew nothing of Student’s performance during the 2019-2020 school year to establish why Student was qualified for an ESY program during the 2020 summer or why Student exhibited the need for 12-months of special services to prevent substantial regression. Neither Parent testified to fill in this gap and assert any information was presented to the CSE to review to substantiate the need for summer services and supporting Student would substantially regress as required to show that the services were necessary and appropriate. In fact, the Parents did not testify, leaving a gap as to important information relating not only to any request for summer services for 2020 but also relating to the equities, as will be discussed below. The lack of Parental testimony relating to these issues leads to a negative inference with regard to Prongs II and III as will be discussed below.

REDACTED’s testimony regarding Student’s regression did not substantiate a need for summer services. His testimony was vague and not based on any quantitative or specific qualitative information. Further, REDACTED only testified vaguely that Student needed review over a break and the longer the break the more review, and the time was variable depending on the gap and as to specifics only mentioned a “few days.” Further he could not testify as to what Student’s disability diagnosis or classification was and stated only he struggled with math and reading. 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, while the District failed to prove FAPE relating to the regular school year IESP developed for 2020-2021, I find there was no denial of FAPE as to Parents' REDACTED for a denial of FAPE as to the summer of 2020 services.

Prong 2- Appropriateness of Parental Unilaterally Obtained Summer SETSS

There is insufficient evidence in the record to support the appropriateness of the summer SETSS services. Parents did not meet the Prong 2 burden. As discussed above, it was incumbent upon the Parent to request the Summer SETSS as necessary to avoid substantial regression and Parents provided no evidence that this ever occurred or of any such evidence.

Parents’ counsel asserted that the May 2021 Progress Report and January 2022 Report would support that the Student needed the 10 hours of 1:1 bilingual SETSS received for 45 hours in the summer of 2020. But the Progress Reports evidence even with receipt of summer services in 2020 and 2021 Student did not advance and if anything, possibly regressed as he failed to progress and therefore seemingly fell farther behind by January of 2022. Therefore, the REDACTED Progress reports do not support Student’s program of ten hours of SETTS was appropriate at any time let alone Summer of 2020. Therefore, the REDACTED Progress Reports are not evidence that Student would have regressed without the 45 hours of SETTS Parents seek funding for or that the SETSS program was appropriate.

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 he did not receive summer SETSS. Parent cannot rely on the preschool 2018 summer IEP as support for regression two years later. Student’s performance from the 2019-2020 school year is unknown except for the scant information in the July 2020 IESP which does not include any evaluations or quantitative evidence or a full explanation of qualitative evidence regarding academic achievements and levels. Also, there is no evidence of Student’s levels of performance directly before and after the Summer SETSS to compare how Student was performing in reading and math (what REDACTED testified the SETSS services were for).

REDACTED did not testify what he worked on with Student on over the 45 hours in the Summer of 2020 or where or how he worked with Student – i.e., was Student attending summer school? Was Student simply receiving tutoring? Parent did not provide any evidence of what Student’s SETSS program entailed, any contemporaneous progress reports or other evidence of the appropriateness of the SETSS. There is no evidence that Student received an appropriate SETSS program or what an appropriate program would have been.

REDACTED’s testimony was not reliable. He testified he worked for REDACTED and then only stated he worked for REDACTED when prompted by Parents’ counsel. He did not know Student’s disability or grade. He did not comment on Student’s extensive issues with writing, speech or behavior as indicated in the July 2020 IESP or the Progress Reports. He did not testify to any tests, information gathered specific observations to support the need for the summer SETSS or the appropriateness of the SETSS program. REDACTED’s vague statements did not support the appropriateness of Student’s summer SETSS. REDACTED testified that for reading Student “was not at grade level. But approaching grade level.” Tr. 136. But the Summer 2020 IESP (and the later REDACTED Progress Reports from Spring 2021 and Winter 2022) indicate Student was consistently two full grade levels behind and could not write, except for his name, only trace letters and numbers and shapes into Winter of 2022. See P Ex. E-G.

I draw a negative inference from the failure to provide any documentary evidence relating to Student’s programming or any reports from 2019 -2020 or from the summer of 20202 SETSS sessions.

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 with REDACTED requiring they pay for the summer of 2020 SETSS services or were even invoiced. REDACTED’s testimony states Parents did not expend any funds and therefore this is a direct funding request. REDACTED’s testified the District has not paid either for summer of 2020 although there has not been a basis set forth for the District to be billed or invoiced.

Parent did not provide sufficient evidence of an obligation to pay for SETSS to REDACTED for several other reasons. As discussed in Prong 2, in fact it is not clear REDACTED was the agency that REDACTED worked for in the summer of 2020. There is no documentary evidence of the forty-five hours of SETSS Parent seeks direct funding for during the summer of 2020 – no invoices, not documentation of sessions, or other information.

The hearing record lacks any convincing evidence of a contract or legal obligation binding the parents to pay REDACTED. Parent did not testify or provide any such evidence. Nothing indicates Parents are legally obligated to pay REDACTED or REDACTED. Due to this lack of evidence, I draw a negative inference from Parents failure to testify.

No reason was given for why the Parent could not pay REDACTED and then request reimbursement. There is also no evidence in the record supporting the $150.00 an hour that REDACTED is seeking 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 SETSS and the Parents’ request for a determination that SETSS services be funded at a rate of $150.00.

Parents’ failure to prove Prong 2 or 3 alone is enough to deny Parents’ REDACTED herein. The Parents’ request for a determination that the SETSS services should be funded must be denied.

ORDER

IT IS HEREBY ORDERED that the Parents’ request for relief under the DPC shall be denied.

SO ORDERED

Dated: October 19, 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.

PARENT EXHIBITS

No. Description Date Pages

A. DPC 6/16/2021 4

B. DPC 7/5/2021 6

C. IEP 6/20/2018 17

D. Affidavit of REDACTED May 4, 2022 1

E. IESP 7/21/2020 6

F. REDACTED Progress Report 1/1/22 4

G. REDACTED Progress Report 5/5/21 6

H. Information regarding Certifications Var. 5

I Order of Termination Case No. 196683 3/22/2021 2

J. DPC Case No. 196683 7/27/20 4

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.

[2] After REDACTED testified he worked for an agency named REDACTED, Parents counsel suggested to Sperber he may have worked for “a few different agencies” including REDACTED Further, REDACTED Educational Support Services or REDACTED Further, Inc. Tr. 138. Sperber then testified “REDACTED, also. Yes.” Tr. 138.