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Special Education Law
DECISIONParent PrevailedIHO Case No. 209412

New York City Department of Education, Impartial Hearing Decision

May 24, 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: 553308 - NYC: 209412

FINDINGS OF FACT AND DECISION

Case Number: 209412

Student’s Name: [REDACTED] [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: December 23, 2021

January 26, 2022

March 1, 2022

March 28, 2022

April 13, 2022

Actual Record Close Date: May 13, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

December 23, 2021 For the Parent:

[REDACTED], Esq.

For the Department:

None

January 26, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

None

March 1, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

None

March 28, 2022 For the Parent:

[REDACTED], Esq.

For the Department

[REDACTED], District Representative

April 13, 2022 For the Parent:

[REDACTED], Esq.

[REDACTED] [REDACTED], Parent

[REDACTED] [REDACTED], Financial Supervisor

[REDACTED] [REDACTED], Provider Supervisor For the Department

None

On December 16, 2021, 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20 U.S.C. §1415(j), in the matter of [REDACTED] [REDACTED], after the appointment of another hearing officer was rescinded.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 July 1, 2021 in order to challenge the Department of Education’s failure to offer [REDACTED] a free appropriate public education for the 2021-2022 school year and to seek continuation of SEIT services, speech and language therapy and occupational therapy for [REDACTED] for the 12-month 2021-2022 school year. Ex. A.

A pre-hearing conference was conducted on December 23, 2021. At the prehearing conference, parent’s counsel clarified the program for which relief was sought and subsequently indicated that [REDACTED]’s parent was seeking RSAs for speech and occupational therapy. Tr. 2-3, 39, 42-43. The hearing was continued on January 26, March 1 and March 28, 2022. The hearing was completed on April 13, 2022. The Department did not offer any documents in evidence nor present the testimony of any witnesses.

The parties made joint applications on the record for extensions of the compliance dates. The applications were granted by written Orders of Extension dated January 26, March 1, March 28 and April 13, 2022.

The record closed on May 13, 2022, upon the hearing officer’s review of the transcript of the last hearing date, and the Actual Record Close Date is May 13, 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 girl who is eligible for special education and services. Exs. A, C.
  • • [REDACTED] experiences challenges with cognition, academics, receptive and expressive language, social pragmatics and articulation, as well as with transitions and in the social/emotional/behavioral domains. Tr. 57-58; Exs. C at 3-4, I, J. She “becomes extremely anxious in social settings,” to the point of bursting out in tears in the classroom. Tr. 60.
  • • [REDACTED] attends mainstream classes at [REDACTED], a private religious school in [REDACTED] and receives SEIT services and speech language therapy at school provided by an agency, [REDACTED] (“[REDACTED]”). Exs. A, I, J, K, L at ⁋ 9, M at ⁋ 15.
  • • The DOE’s CPSE convened an IEP meeting for [REDACTED] on March 13, 2020, and developed a preschool IEP for her. [REDACTED]’s mother participated in this meeting. Ex. C at 1-2; Ex. L at ⁋ 3.
  • • The CPSE recommended that [REDACTED] receive SEIT services (five hours per week, 1:1), speech language therapy (two 30-minute sessions per week, 1:1) and occupational therapy (two 30-minute sessions per week, 1:1), all as part of a 12-month program. Ex. C at 1, 9-10; Ex. L at ⁋ 3.
  • • [REDACTED] needs a 12-month program because she experiences substantial regression when there are breaks in her services. Exs. I at 4, L at ⁋ 10, Ex. M at ⁋ 29.
  • • The DOE did not convene an IEP or IESP meeting for [REDACTED] for the 2021-2022 school year. Ex. B; Ex. L at ⁋ 8..
  • • [REDACTED] is a non-profit agency that provides children from [REDACTED] families with preschool education programs and services. Ex. K at ⁋ 4.
  • • [REDACTED] commenced providing services to [REDACTED] on July 13, 2021, and has provided five hours per week of SEIT services to her during the 2021-2022 school year. Tr. 49;[1] Ex. K at ⁋ 7.
  • • The SEITs work with [REDACTED] on phonemic awareness, decoding, sequencing, reading comprehension, requesting assistance, math readiness skills, peer interactions and coping with transitions. [REDACTED] has made slow and steady progress in these areas. [REDACTED] has benefitted from a multisensory approach to visualize and understand math concepts and modeling, role play and positive reinforcement to work on social interaction skills and transition skills. Ex. I; Ex. M at ⁋⁋ 19-25.
  • • The speech therapist works with [REDACTED] on following multi-step directions, communicating her wants and needs, initiating conversations, answering comprehension questions, and sequencing. Ex. J.
  • • The agency charges $165.00 per hour for SEIT services. Tr. 49; Ex. K at ⁋ 5. This rate covers payments to the providers, benefits for the providers, supervision of the providers, administrative expenses, property costs, supplies, utilities, communication expenses and financing interest. Tr. 49-5; Ex. K at ⁋ 6. The SEIT providers are paid between $70.00 and $72.00 per hour. Tr. 50.
  • • The financial administrator of [REDACTED] asserted that she has communicated with personnel at similar agencies and learned that [REDACTED]’s SEIT rate was “within the general market rate” for such services in the New York City area. Ex. K at ⁋ 5.
  • • The SEIT providers are certified special education teachers. Exs. D, M at ⁋⁋ 8, 9.
  • • The SEIT supervisor is a certified special education teacher. She meets with the SEITs at least once a week and is also available on an as needed basis. She provides approximately one hour per week of supervision time for [REDACTED]. Tr. 54-56. The supervisor also updates [REDACTED]’s mother on [REDACTED]’s progress. Tr. 60-61.
  • • The speech therapist is certified as a teacher of speech and language disabilities and is certified to provide bilingual [REDACTED] services. Tr. 57.
  • • [REDACTED]’s mother has been unable to locate an occupational therapist to work with [REDACTED]. She continues to search for an available occupational therapist to work with [REDACTED]. Tr. 61-62; Ex. L at ⁋ 17.
  • • [REDACTED]’s mother has observed that, during the 2021-2022 school year, [REDACTED]’s reading has improved significantly and that she benefits from the support of the SEIT in both reading and math. Tr. 64. [REDACTED] is also improving her ability to communicate—she is responding to other people and is asking for assistance when needed. Ex. L at ⁋⁋ 14, 15.
  • • On April 20, 2021, [REDACTED]’s parents entered into a services contract with [REDACTED] for the 2021-2022 12-month school year. [REDACTED]’s parents are obligated to pay for the services provided to [REDACTED]. Exs. E, G.
  • • [REDACTED]’s parents are unable, at this time, to pay the full costs of the SEIT services and related services. Tr. 67; Exs. H, L at ⁋ 21.
  • • [REDACTED]’s parents submitted a ten-day notice letter to the DOE on June 21, 2021. Ex. B.

Decision

A board of education may be required to pay for education 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. Department of Education, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

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).

Here, however, the Department has not prepared an IESP for [REDACTED], and the case should not be analyzed as a Section 3602-c. Rather, the case should be analyzed as per the Supreme Court’s Burlington and Carter decisions with respect to the services sought by [REDACTED]’s parents..

Did the Department Offer [REDACTED] a FAPE?

Since the Department did not offer any evidence in support of a Department program for [REDACTED], and since the undisputed evidence establishes that the Department did not prepare an educational program for [REDACTED] for the 2021-2011 school year, the Department did not carry its burden of proof and cannot prevail on the first “prong” of the Burlington/Carter test.

Are the SEIT Services Provided by [REDACTED] Appropriate for [REDACTED]?

The parent bears the burden of proof concerning the appropriateness of [REDACTED] for [REDACTED]. See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parent must show that the educational services provided by [REDACTED] address [REDACTED]'s identified special education needs. See C.F., 74;6 F.3d at 82; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.... To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.”

Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2021) (Summary Order).

Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3.

The preponderance of the evidence establishes that [REDACTED] provided [REDACTED] with educational services which supported and addressed, within the general education setting, her identified and significant special education needs such that she could function in a general education classroom, and she made slow and steady progress commensurate with her unique needs and circumstances. [REDACTED] addressed [REDACTED]’s needs as described in paragraphs 10 and 11 above. [REDACTED] made progress at [REDACTED] during the 2021-2022 school year, as described in paragraphs 10 and 18 above. Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the program that SEIT services from [REDACTED] are appropriate for [REDACTED] for the 2021-2022 school year. As a result, [REDACTED]’s parents prevail with respect to the second Burlington/Carter criterion.

As to speech and occupational therapies, [REDACTED]’s parent is seeking RSAs. Since it is undisputed that [REDACTED] needs these related services, I will order that the Department issue RSAs for such services.

The Equities With respect to the third Burlington criterion, whether equitable considerations support the parent’s claims, the evidence establishes that [REDACTED]’s parent cooperated with the CPSE by attending CPSE meetings, communicating with Department personnel, and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district).

Furthermore, although [REDACTED]’s parents have paid not paid for the [REDACTED] services, the debt for the costs of the services is very real. [REDACTED]’s parents are unable to pay the total amount and then seek reimbursement from the Department. A hearing officer may, where the other requirements of Burlington and Carter permit, order prospective payment because: (1) such payment is permitted by Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998); and (2) it would be patently unfair to extend the protections granted by the United States Supreme Court in Burlington and Carter only to those disabled children whose parents happen to have the financial wherewithal to “front” the private school tuition and subsequently seek repayment from the school district. Equitable considerations favor the award of relief to [REDACTED]’s parent. As a result, [REDACTED]’s parents prevail with respect to the third Burlington/Carter criterion.

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

  • • The Department of Education shall fund [REDACTED]’s SEIT services (up to five hours per week) provided by [REDACTED] for the 2021-2022 12-month school year. The funding shall be reimbursement to [REDACTED]’s parents for any amounts they have paid to [REDACTED] and direct payment to [REDACTED] for any remaining balance.
  • • The Department of Education shall issue RSAs for speech language therapy (two 30-minute sessions per week, 1:1) and occupational therapy (two 30-minute sessions per week, 1:1) for [REDACTED] for the 2021-2022 12-month school year.

Dated: May 24, 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

Exhibit

Date

Title

# of Pages

A 07-01-2022 Due Process Complaint and Pendency Form with Receipt 05

B 06-21-2022 Ten Day Notice with Email 02

C 03-13-2021 CPSE IEP 12

D Undated Provider Certifications 02

E 04-20-2022 Provider Agreement 01

F 02-10-2022 Affidavit of Payment 01

G 02-10-2022 Provider Invoices 06

H 04-09-2022 2021 Tax Returns 03

I 12-21-2022 Progress Report 04

J 03-01-2022 Speech Progress Report 03

K 04-05-2022 Affidavit in Lieu of Direct Testimony ([REDACTED] [REDACTED]) 02

L 04-06-2022 Affidavit in Lieu of Direct Testimony (Parent) 03

M

04-06-2022

Affidavit in Lieu of Direct Testimony ([REDACTED] [REDACTED] [REDACTED])

05

Footnotes

[1] The financial administrator of the agency explained in her testimony that the later date set forth in her affidavit was in error.