New York City Department of Education, Impartial Hearing Decision

SED # 554165 NYC # 210266

FINDINGS OF FACT AND DECISION

Case Number: 210266

Student’s Name: REDACTED

(hereinafter known as “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: REDACTED

(hereinafter known as “Parent”)

Dates of Hearing November 19, 2021

November 23, 2021

January 18, 2022

February 2, 2022

Actual Record Closed Date: February 16, 2022

Date of Decision February 16, 2022

Hearing Officer: Rachel Gibbons, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 19, 2021

For the Student:

REDACTED Attorney (Via telephone)

For the NYC Department of Education:

REDACTED District Representative (Via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 23, 2021

For the Student:

REDACTED Attorney (Via telephone)

For the NYC Department of Education:

REDACTED District Representative (Via telephone)

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

For the Student:

REDACTED Attorney (Via videoconference platform)

For the NYC Department of Education:

none

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 2, 2022

For the Student:

REDACTED Attorney (Via videoconference platform)

For the NYC Department of Education:

none

INTRODUCTION AND PROCEDURAL BACKGROUND

This proceeding was brought in accordance with the Individuals with Disabilities Education Act (“IDEA”), the New York State Education Law Article 89 and §3602-c by the Parent of the Student, a seven-year-old child with a disability. On July 6, 2021 the Parent filed a Due Process Complaint (“Complaint”) against the New York City Department of Education (“District” or “DOE”) which alleged, inter alia, that the District failed to provide the Student with a free appropriate public education (“FAPE”). This Hearing Officer (“IHO”) was appointed to this matter on July 8, 2021.

A prehearing conference was held on August 17, 2021. A due process hearing was held on November 19, 2021, November 23, 2021, January 18, 2022 and February 2, 2022. Three extensions were granted due to scheduling issues and witness availability. Both parties joined in the requests for extensions. On January 18, 2022 the DOE submitted four exhibits and the Parent submitted eight exhibits, all of which were entered into evidence. The Parent submitted a final exhibit after the close of the February 2, 2022 hearing and it was admitted into evidence. The Parent testified via affidavit, as did REDACTED, the educational director (“Director”) at REDACTED (“Agency”), the agency that has provided SEIT services to the Student during the 2021-2022 school year. The District presented no witnesses. The record was closed on February 16, 2022 following receipt of the full transcript. The final date of compliance is February 16, 2022.

ISSUES PRESENTED

• • Whether the Individualized Education Program (“IEP”) dated January 21, 2021 provided the Student with the free appropriate public education (“FAPE”).
• • Whether the Parents’ unilaterally obtained program consisting of eight weekly hours of 1:1 SEIT services is appropriate.
• • Whether there are any equitable considerations that would reduce the amount of any order for District reimbursement or payment for SEIT services.

APPLICABLE STANDARDS

IDEA Generally The IDEA (20 U.S.C. §§1400-1482) was enacted primarily (1) to ensure that students with disabilities have available to them a free appropriate public education which is designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to protect the rights of students with disabilities and the parents of such students. (20 U.S.C. § 1400(d)(1)(A)-(B); see generally, Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982)). A FAPE consists of special education and related services designed to meet a student’s unique needs which are provided in conformity with a written individualized education program. (See 20 U.S.C. § 1401(9)). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits or the IEP is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” (See Rowley, at 192 and Endrew F. ex rel. Student F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017)). In Endrew F., the Supreme Court recently clarified the substantive standard for determining whether a child’s IEP offered a FAPE. 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.” Id. at 1001. The Court emphasized the text of the IDEA itself and stated:

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” though an “[i]ndividualized education program” §§1401(29), (14) (emphasis added). An IEP is not a form document. It is constructed only after careful consideration of the child’s present level of achievement, disability and potential for growth. (Endrew F. at 999).

The Court continued “[A child’s] IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” (Endrew F. at 1000).

An appropriate IEP must include: (a) a statement of the child’s present level of academic achievement and functional performance and how the child’s disability affects the child’s involvement and progress in the general education curriculum; (b) a statement of measurable annual academic and functional goals; (c) how a child’s progress towards those goals will be measured; (d) a statement of the special education and related services to be provided to the child; (e) an explanation of the extent to which the child will participate with nondisabled students in school; and (f) the projected date for the start of services and the duration. (34 CFR § 300.320(a); 8 NYCRR 200.4(d)(2)). An IEP must be developed collaboratively, by a team that includes the child’s parents, specific teachers, a school district representative and someone who can interpret evaluations. (34 CFR § 300.321, Educ. Law §4402(a)). The “core of the statute... is the cooperative process that [IDEA] establishes between parents and schools.” (Schaffer v. Weast, 546 U.S. 49, 53 (2005)). The Second Circuit has stated that a district “must produce, in writing, an [IEP] that ‘describes the specially designed instruction and services that will enable the child to meet’ stated educational objectives and is reasonably calculated to give educational benefits to the child.” (M.W. ex rel S.W. v. NYC Dept. of Educ., 775 F.3d 131, 135 (2d Cir. 2013) (Quoting R.E. v. NYC Dept. of Ed., 694 F.3d 167 (2d Cir. 2012)).

“The importance Congress attached to the procedural safeguards [in IDEA] cannot be gainsaid.” (See R.E. at 189-190). A procedural violation of the IDEA entitles a parent to relief only if it: “(I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” (20 U.S.C. § 1415(f)(3)(E)(ii); see P. v. West Hartford Bd of Educ., 885 F.3d 735, 748-749 (2d Cir. 2018); citing A.M. v. N.Y. City Dep't of Educ., 845 F.3d 523, 535 (2d Cir. 2017). “Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” (See R.E., 694 F.3d at 190.

It is important to note that school districts are not required to "maximize" the potential of students with disabilities. (Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003)). The IDEA ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)). In addition, a child with a disability is entitled to a FAPE in the least restrictive environment (“LRE”). (20 U.S.C. §1401(9) and 34 CFR §300.17. See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998)).

Burden of Proof The District bears the burden of proof during an impartial hearing, except in a tuition reimbursement case, where the Petitioner bears the burden of proof regarding the appropriateness of a unilateral placement. (Educ. Law §4404(c)(1)). The burden of proof in this matter shall be met upon a fair preponderance of the evidence, which requires that the trier of fact find that the existence of a fact is more probable than its nonexistence.^[1] If the evidence is evenly balanced, the party with the burden of persuasion must lose. ^[2]

Dual Enrollment Under §3602-c

Under the provisions of NYS Education Law § 3602-c, students with disabilities who attend nonpublic schools are entitled to receive special education services on an “equitable basis” as compared with students with disabilities who attend public school or are directly enrolled by the school district in a nonpublic school. This “dual-enrollment” statute further provides that a parent may request review of the CSE’s recommendations via impartial hearing and state level review provided under Educ. Law § 4404.

Over the past few years, the State Review Officers (“SROs”) have made clear that a school district is responsible to directly provide, via a district-employed provider, the special education services it recommends through its IESPs. (See e.g. Application of a Student with a Disability, Appeal No. 20-087). Most recently, the SROs have determined that the appropriate way to determine the remedy for a denial of equitable special education services under §3602-c followed by the Parent’s subsequent decision to locate a private provider, is to apply the Burlington/Carter analysis which is used to determine tuition reimbursement cases. (See Application of a Student with a Disability, Appeal No. 21-101; Application of a Student with a Disability, Appeal No. 21-068; Application of a Student with a Disability, Appeal No. 21-028).

Tuition Reimbursement In Burlington School Comm v. Dept of Education, 471 U.S. 359 (1985), the Court determined that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. In cases where the relief sought is tuition reimbursement, the applicable three-prong analysis is contained in Burlington and its progeny. (See Florence County School Dist. Four v. Carter, 510 U.S. 7 (1993)). When applying a Burlington/Carter analysis it is necessary to determine if (1) the school district failed to offer and/or provide a FAPE to the Student; (2) the services selected by the Parents were appropriate; and (3) the equitable considerations support the parents’ claim.

FINDINGS OF FACT

During the 2021-2022 school year the Student attended a private parochial school in Brooklyn. (Par. Ex. A p. 1). An IEP was developed for the Student for the ten-month 2021-2022 school year pursuant to a CSE meeting held on January 21, 2021 (“IEP”). (DOE Ex. 1; Par. Ex. A). The Student is classified as having a Speech or Language Impairment. (IEP p. 1) The CSE meeting was attended by a special education teacher, a general education teacher, a district representative, a special education provider and the Parent. (DOE Ex. 2). The IEP recommended a REDACTED Integrated Co-Teaching Services (“ICT”) classroom in a community school, with the related services of counseling, individual service in REDACTED, once weekly for 30 minutes; counseling, group service in REDACTED, once weekly for 30 minutes; occupational therapy (“OT”) individual service in English, twice weekly, for 30-minute sessions; physical therapy (“PT”) individual service in English, twice weekly for 30-minute sessions; and speech-language therapy (“SLT”) individual service in REDACTED, twice weekly, for 30-minute sessions. (IEP pp. 15-16). The document is based on provider reports and a review of records. (Id. p. 1). The IEP features several meaningful and measurable goals in reading comprehension, reading fluency, pre-writing skills, math readiness, communication, social emotional skills, executive functioning and speech-language skills. (IEP pp. 7-14). The management needs are detailed. (Id. p. 5).

On June 24, 2021 the Parent sent a ten-day notice informing the DOE that the Parent had not received a placement recommendation for the 2021-2022 school year had been unable to locate a REDACTED ICT program within the DOE public school system. She also stated her concerns about the CSE’s rejection of a 12-month program for the Student. (Par. Ex. D p. 2; See also Par. Ex. H p. 2 ¶ 6). The letter informed the DOE that the Parent intended to place the Student in a “blended program” in the Student’s then-current private school placement at REDACTED. (Id.) The DOE sent prior written notice and a school location letter dated August 4, 2021 to the Parent. (Par. Ex. C). The school location letter (“SLL”) stated that the Student’s IEP would be provided at “REDACTED.” (Par. Ex. C p. 5).

The Parent testified via affidavit that she called the REDACTED School on October 19 [2021] and spoke with REDACTED who informed her that “there was no REDACTED ICT class in the school.” (Par. Ex. H p. 2). She stated that the Student struggles in many academic and social/emotional areas and requires a lot of assistance. (Id. p. 1). The Parent contacted the Agency and signed a contract for the provision of services to the Student for the 2021-2022 school year (“Agreement”). (Id.; Par. Ex. I). The Agreement does not specify the actual services to be provided to the Student, the amount of service sessions, nor does it state the hourly rate for the services, total charges or an estimated total. (Par. Ex. I). The Agreement does make clear that the Parent will be responsible to pay for the services provided by the Agency if the DOE does not pay. (Par. Ex. I p. 3).

The Director testified via affidavit that the Student was receiving eight hours per week of SEIT services, for which the Agency charges $182 per hour.^[3] (Par. Ex. E pp. 2-3). The Student’s SEIT for the 2021-2022 school year is REDACTED. (Id. p 3). The Parent submitted a document which appears to be from the NYSED TEACH system that indicates that REDACTED is certified to teach students with disabilities ages birth through second grade. (Par. Ex. G). The Director described the individualization of the Student’s program and how his progress is measured. (Par. Ex. E p. 4). She stated that the Student has made progress but his “academic and social delays warrant the need for continued services.” (Par. Ex. E p. 5). The Director opined that the continuation of SEIT on a 1:1 basis for 8 hours per week is “the most appropriate program” for the Student. (Id.)

The Parent submitted a progress report (“Progress Report”) dated November 11, 2021 that reflects the Student’s academic goals, the educational methodology his SEIT provider used and his rate of progress in the common core linked curriculum and skills. (Par. Ex. F). The report reflects that the Student made progress in understanding spoken words and sounds; recognizing and naming the letters of the alphabet with sounds; answering “wh” questions; retelling stories; working with manipulatives to represent addition and subtraction; and solving simple math problems. (Id). The District submitted an older progress report dated December 25, 2019, which describes the Student’s goals, educational program and progress when the Student was five years old. (DOE Ex. 3). The Student’s services were apparently provided by a different agency at that time. (Id.)

The District’s Provision of FAPE The threshold issue in this case is whether or not the District provided or offered a FAPE for this student during for the 2021-2022 school year. The DOE submitted evidence but did not present opening statement, closing statements, nor question any witnesses. The DOE did not attend the hearing on the dates for the DOE’s case-in-chief or the Parent’s-case-in-chief. The IEP itself is procedurally sound and well-written. However, the District cannot satisfy its burden of proof because there was no evidence in the record that the bilingual ICT program that is recommended by the IEP actually exists. The District initially stated its intention to produce a witness to testify about the appropriateness of the program. When this IHO added additional hearing dates, however, the DOE failed to produce the witness or submit an affidavit in lieu of testimony. The DOE failed to appear on two of the hearing dates, January 18, 2022 and February 2, 2022. In contrast, the Parent testified that the bilingual ICT program did not exist at the recommended school location. (Par. Ex. G p. 2). The District did not refute this testimony, though it was given ample opportunity to do so. The District has thus failed to satisfy its burden that it provided or offered a FAPE to the Student for the 2021-2022 school year. The Parent has prevailed on Prong I of the Burlington/Carter analysis.

Appropriateness of the unilaterally obtained SEIT services

This Parent also prevails on the question of the appropriateness of the unilaterally obtained SEIT instruction, as she submitted a progress report that demonstrated that the services were individually tailored to the Student and were calculated to enable him to progress. (Par. Ex. F; see also Findings of Fact, supra). The unilaterally obtained services were appropriate according to a Burlington/Carter analysis. Prong II has been satisfied.

Equitable Considerations The Parent cooperated with the District. She attended the IEP meeting and authorized her counsel to submit a ten-day notice prior to the start of the extended school 2021-2022 school year. (DOE Ex. 2, Par. Ex. D). The District has provided no evidence to suggest that the Parent has refused to cooperate or otherwise acted in bad faith, thus there are no equitable considerations that would undercut the Parent’s request for relief, therefore they have satisfied Prong III.

Direct Funding The Parent signed an agreement with the Agency that fails to specify the terms of service and payment, however, the document reflects a legal obligation of the Parent to pay for the Agency’s services if the DOE ultimately does not pay. (Par. Ex. I). The Parent requests relief in the form of direct payment by the DOE to the Agency for SEIT services for 2021-2022 school year, not in the form of reimbursement to the Parent. After a full Burlington/Carter analysis is satisfied, a district may be required to pay a private placement or service provider directly. In some cases, an IHO, SRO or court may order a school district to directly pay retroactive tuition when the parent has signed a contract and is legally obligated to pay the private tuition but is unable to do so due to lack of financial resources. (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014)). The court in Mr. and Mrs. A held that

"[w]here... parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769 F. Supp 2d at 428.)

It is the Parent’s burden to demonstrate they are unable to pay for the educational services “up front.”^[4] The Parent has provided no proof of payment for the unilaterally obtained SEIT services, nor has she provided evidence such as a tax return, that shows she lacks the financial resources to pay for the services for the Student. The Parent’s request for a remedy of direct payment to the Agency for the SEIT hours provided to the Student during the 2021-2022 school year must be therefore be denied. The District is still required to directly fund the services delivered by the Agency pursuant to pendency. As to the fees for the remaining 2021-2022 privately obtained SEIT services, the District will be required to reimburse the Parent for eight hours per week of SEIT services during the 2021-2022 school year delivered by the Agency, at their hourly rate, only upon the Parent’s submission of proof of payment.

Extended School Year The Parent seeks funding for eight weekly hours of SEIT services for the 12-month extended 2021-2022 school year. There is no evidence in the record that the Student will regress or fail to make progress if he does not receive extended year services.

ORDER

NOW THEREFORE BASED ON THE FOREGOING, it is

ORDERED that the DOE failed to provide a FAPE to the Student for the 2021-2022 ten-month school year; and it is further;

ORDERED that the Parent’s request for direct payment to the Agency for SEIT services rendered to the Student during the 2021-2022 school year is denied; and it is further;

ORDERED that the District will reimburse the Parent for the costs of eight hours of SEIT services per week for the ten-month 2021-2022 school year upon receipt of proof of payment; and it is further;

ORDERED that all relief not specifically granted herein is DENIED.

Dated: February 16, 2022

Rachel Gibbons

Rachel Gibbons, Esq.

Impartial Hearing Officer

DOCUMENTATION ENTERED INTO THE RECORD

DISTRICT

Ex. Description Date Pages

1. IEP 1/21/21 22

2. Attendance page 1/21/21 1

3. Special education progress report 12/25/19 4

4. Prior written notice (notice of recommendation) 8/04/21 4

PARENT

A. DPC 7/05/21 5

B. IEP* 1/21/21 20

C. Prior written notice 8/04/21 6

D. Ten-day notice 6/24/21 2

E. Provider’s affidavit 11/18/21 5

F. Progress report 11/11/21 5

G. Provider’s credentials undated 1

H. Parent’s affidavit 11/18/21 2

I. Agency Agreement 4/21/21 3

* Identified as IESP in transcript on 1/18/22. Tr. 62

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.

Footnotes

[1] See Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993).

[2] Director, Office of Worker’s Compensation Programs v. Greenwich Colliers, 512 U.S. 267, 281 (1994).

[3] The Parent confirmed that the Student was receiving eight hours of SETSS per week. (Par. Ex. H p. 2 ¶ 8).

[4] See A.R. v. New York City Dep't of Educ., 2013 WL 5312537, at *11 (S.D.N.Y. Sept. 23, 2013); see also Application of a Student with a Disability, Appeal No. 12-036; Application of a Student with a Disability, Appeal No. 12-004; Application of the Dep't of Educ., Appeal No. 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041)