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NYSED # 553054 / NYC # 209158
FINDINGS OF FACT AND DECISION
Case Number: 209158
Student’s Name: [REDACTED] [REDACTED]
Hearing Requested By: Parent
Dates of Hearing: June 23, 2022
Actual Record Close Date: June 29, 2022
Hearing Officer: Jean Marie Brescia, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
June 23, 2022 For the Parent:
[REDACTED], Parent Advocate
For the Department:
[REDACTED], District Representative
[REDACTED], District Representative
On June 15, 2022, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(j), in the matter of [REDACTED] [REDACTED], after the appointment of another hearing officer was rescinded. [REDACTED]’s parent requested the hearing on June 29, 2021 in order to challenge the Department of Education’s failure to offer [REDACTED] a free appropriate public education for the 2019-2020 and 2020-2021 school years and to seek implementation of the SETSS mandated by the Department’s Individualized Education Services Plans (“IESP”) for [REDACTED]. Ex. A.
A pre-hearing conference was conducted on June 23, 2022. At the prehearing conference, the parties stipulated to the admission of Parents’ Exhibits A and B. Tr. 8. The parties also stipulated to the facts as so designated below. The Department did not object to the number of SETSS periods to which [REDACTED] was entitled. The Department objected only to paying an “enhanced” rate for these services. Tr. 9. Parents argued that if [REDACTED]’s parents could not locate a SETSS provider at the DOE rate, then [REDACTED]’s parents should be able to secure a SETSS provider for whom the Department would pay “the market or prevailing rate.” Tr. 9-10.
The parties made a joint application on the record for an extension of the compliance date. The application was granted by a written Order of Extension dated June 23, 2022.
The record closed on June 27, 2022, upon the hearing officer’s receipt and review of the transcript of the proceedings, and the Actual Record Close Date is June 27, 2022.
Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.
Findings of Fact
- • [REDACTED] is a [REDACTED]-year-old boy whose disability, for the purposes of the IDEA, is classified as speech or language impairment. Ex. B at 1.
- • [REDACTED] experiences challenges with articulation, academic skills, social skills, and stamina. Ex. B at 1-2.
- • [REDACTED] attends [REDACTED], a private religious school in New York City. Ex. A at 1.
- • The CSE convened on November 19, 2020 and created an IESP for [REDACTED]. Ex. B at 1.
- • The CSE recommended that [REDACTED] receive SETSS (five period per week as a group service in [REDACTED]), speech-language therapy (two 30-minute periods per week individually in [REDACTED]) and counseling (one 30-minute session per week individually in [REDACTED] and one 30-minute session per week as a group service in [REDACTED]). Ex. B at 5.
- • The IESP notes that [REDACTED]’s parents had been unable to locate a SETSS provider utilizing the P-3 letter issued by the DOE. Ex. B at 1.
- • The parties stipulated that [REDACTED] did not receive SETSS for the entirety of the 2019-2020 school year. Tr. 9.
- • The parties stipulated that [REDACTED] should have received 180 periods of SETSS for the 2019-2020 school year. Tr. 8-9.
- • The parties stipulated that [REDACTED] did not receive SETSS for the time period from September 8, 2020 to November 29, 2020. Tr. 7, 9.
- • The parties stipulated that [REDACTED] should have received 63 periods of SETSS for the time period from September 8, 2020 to November 29, 2020. Tr. 9.
Decision
The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education 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 first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).
A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s 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).
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.
I must also consider that [REDACTED] is a “dually-enrolled” student, and, 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. See also Bd. of Educ. of the Bayshore Union Free Sch. Dist. v. Thomas K., 14 N.Y. 3d 289 (2010) (relevance of individualized educational needs of dually-enrolled students).
The parties agree that the Department should provide [REDACTED] with 243 periods of SETSS to make up for the 180 periods that he did not receive, and should have received, during the 2019-2020 school year and the 63 periods that he did not receive, and should have received, during the September through November portion of the 2020-2021 school year. As to the rate to be paid for such services, since there is a history of difficulties for [REDACTED]’s family locating a SETSS provider who would accept the Department’s “P-3” rate, I will permit the family to obtain SETSS awarded in this Order at a rate as described below.
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 243 periods of SETSS in [REDACTED].
2. Parent may select the providers, who must be appropriately certified to provide SETSS.
3. The DOE shall pay a reasonable market rate for the services, as determined by the Department’s Implementation Unit; and, in any event, that rate shall not exceed the rates that the selected provider has charged for SETSS delivered to students in New York City during the 2021-2022 school year.
4. The bank of hours shall expire on July 5, 2024, and any SETSS periods remaining at that time will be lost.
Dated: July 3, 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
Parents’ Exhibits
A Due Process Complaint June 29, 2021 4 pages
B IESP November 19, 2020 7 pages