New York City Department of Education, Impartial Hearing Decision

SED # 553623 NYC # 209728

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: REDACTED

Record Close Date: March 9, 2022

Hearing Officer: Alena Weiserbs, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 30, 2021

For the Student:

REDACTED, Law Clerk

REDACTED, Attorney

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 1, 2022

For the Student:

REDACTED, Law Clerk & REDACTED, Attorney

REDACTED, Parent

For the Department of Education:

None

On July 1, 2021, REDACTED (the “Parent”) of REDACTED (the “Student”) filed a due process complaint (the “DPC”) under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “DOE”) (Parent Ex. A) which was subsequently amended on January 19, 2022. On March 2, 2022, this IHO denied Parent’s request to amend the DPC dated February 24, 2022. I was appointed as impartial hearing officer (“IHO”) on December 17, 2021. Hearings went forward in this case on December 30, 2021 and March 1, 2022.

Lists of documentary evidence in this proceeding are appended to this Order. Although only portions of the evidence are referenced herein, the testimony and documents were reviewed in full.

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is a REDACTED year old male who is classified as a student with a learning disability (Parent Ex. B-1). His classification as a disabled student is not in dispute. The within proceeding pertains to the Parent’s request for the DOE to provide, fund the Student’s special for special education itinerant teacher support services (“SEIT”) and related services as well as increase the amount of occupational therapy the Student has been receiving from his Individual Education Program (“IEP”) dated December 12, 2017.

The DOE developed an IESP on March 12, 2021, which was contested by the Parent through a DPC. On September 17, 2021, IHO Leah L. Murphy issued an unappealed Finding of Fact and Decision (“FOFD”) granting the Student the special education and related services provided on his IEP dated December 12, 2017, to wit: ten hours of individual SEIT services per week on a twelve month basis; individual occupational therapy twice a week for forty-five minute sessions; and individual counseling three times per week for forty-five minutes sessions for the 2020-2021 school year (Parent Ex. C-8). The CSE did not convene for the 2021 to 2022 school year nor was the parent contacted for updated evaluations for her child (Parent Ex. I-2). The DOE failed to arrange services for the Student for the 2021 to 2022 school year (Parent Ex. I-2).

The Parent maintains that the DOE failed to offer the Student an appropriate services for the 2021 to 2022 school years, and thus failed to offer him a free appropriate public education (“FAPE”). The Parent asserts that the Student requires continued SEIT services and an increase in the hours of occupational therapy because he is struggling and needs the services in order to make progress (Parent Ex. A, B, H, & I).

The Parent presented documentary evidence and testimony by affidavit for two witnesses. The DOE did not appear at the hearings, thereby defaulting.

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000). School districts are obligated to provide the services listed in a Student’s IEP.

This case involves a parentally placed student in a non-public school who has a disability. Under the provisions of section 3602-c, students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP from the public school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them (See also 34 CFR 300.130 and 300.145-147). The IESP must be developed in the same manner and with the same contents as an IEP is developed. School districts are required to provide special education services pursuant to the IESP. Such services must be provided on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.

Per a New York State Education Department guidance document:

The term "equitable basis" means that special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district. The new State legislation is intended to maintain the level of services provided to NYS nonpublic students with disabilities through IEPs... Accordingly, parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program. A nonpublic student may not be denied services that a public school student would receive based solely upon his or her status as a nonpublic student... 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, Attachment 1, September 2007

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement ( NYS Educ. Law § 4404(1)(c)). Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.

In light of the DOE’s not presenting a case and not meeting its burden, there is no dispute as to the Student’s entitlement to the requested related services and the services of a duly licensed special education teacher. The DOE did not hold and annual review for the Student for the 2021-2022 pursuant 34 C.F.R. sec. 300.324 (b)(1)(i) and 8NYCRR Sec. 200.4(f). The DOE did not make arrangements for the SETSS services or identify a provider for the Student for the 2021 to 2022 as required under the FOFD dated April 17, 2021 depriving the Student of a program that was reasonably calculated to enable him to make progress with respect to his disability (Parent Ex. C). This unappealed FOFD provided for the Student to receive ten hours of individual SEIT services per week on a twelve month basis; individual occupational therapy twice a week for forty-five minute sessions; and individual counseling three times per week for forty-five minutes sessions for the 2020-2021 school year (Parent Ex. C-8). In addition to those services in said FOFD, the Student requires an increase in occupational therapy session per week in order to make progress (Parent Ex. F, G, H, & I). The Student is struggling handwriting with the currently mandated two thirty minute sessions per week of occupational therapy, which is not sufficient for the Student to make progress (Parent Ex. F & H-2). He requires a third weekly session per week because his handwriting is illegible(Id.). The Student is still struggling academically and behaviorally and requires continued individual special education support services and counseling (Parent Ex. F, H &I).

But for the Parent having located an agency to provide the SEIT services, the Student would not have received any services of a duly licensed special education teacher during the 2021-2022 school year. The DOE must therefore fund these services at the hourly rate charged by the provider retroactive to the filing of the DPC pursuant to pendency as per the FOFD dated April 17, 2021. This is because a prior unappealed impartial hearing officer’s decision may establish a student’s current educational placement for purposes of pendency (Student X, 2008 WL 4890440 at *23; Letter to Hampden, 49 IDELR 197 [OSEP 2007]; Application of a Student with a Disability, Appeal No. 08-107; Application of a Student with a Disability, Appeal No. 08-050; Application of the Dep't of Educ., Appeal No. 08-009; Application of the Dep't of Educ., Appeal No. 07-140; Application of the Dep't of Educ., Appeal No. 07-134). In addition, if “a State review official in an administrative appeal agrees with the child’s parents that a change of placement is appropriate, that placement must be treated as an agreement between the State and the parents” for purposes of establishing the student’s current educational placement (34 C.F.R. § 300.518[d]; see 8 NYCRR 200.5[m][2]; Schutz, 290 F.3d at 482).

Further, this IHO finds in addition to special education teacher support services ordered in the unappealed FOFD date April 17, 2017, that the occupational sessions mandated for the Student be increased from two to three times per week for thirty minute individual sessions based on credible evidence provided at the time of the hearing.

ORDER

IT IS HEREBY ORDERED that the DOE is directed to provide and fund at market rate ten individual periods per week of the services of a duly licensed special education teacher, individual occupational therapy three per week for forty-five minute sessions, and individual counseling three times per week for forty-five minutes sessions on a twelve month basis for the 2021-2022 school year for the Student; and that the DOE is directed to provide and fund at market rate ten individual periods per week of the SEIT services, individual occupational therapy twice per week for forty-five minute sessions, and individual counseling three times per week for forty-five minutes sessions on a twelve month basis for the Student retroactive to the filing of the DPC dated July 1, 2021 to until the date of this IHO’s FOFD. All invoices shall be paid within thirty days of submission for services rendered.

Dated: March 9, 2022

_________________

Alena Weiserbs

Impartial Hearing Officer

DOCUMENTS ENTERED INTO THE RECORD

Parent Exhibits

Exhibit

Date

Title

Number of Pages

A 07/01/2021 Impartial Hearing Request 3

B 01/19/2022 Amended Impartial Hearing Request 3

C 04/17/2021 Findings of Fact and Decision 11

D Various Provider (REDACTED) Certifications 1

E Various Supervisor (REDACTED) Certifications 1

F 01/18/2022 Teacher Progress Report 6

G 12/30/2021 Occupational Therapy Progress Report 3

H 02/21/2022 Testimonial Affidavit of REDACTED 3

I 02/22/2022 Testimonial Affidavit of REDACTED 2

J 02/22/2022 Notarized Signature Page of 1

K 01/06/2022 REDACTED Testimonial Affidavit of Services 1

L 04/22/2021 Contract 2

• • 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.