New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 554520 - NYC: 210617

FINDINGS OF FACT AND DECISION

Case Number: 210617

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 April 26, 2022

May 10, 2022

May 16, 2022

Actual Record Closed Date: May 22, 2022

Date of Decision June 4, 2022

Hearing Officer: Rachel Gibbons, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 26, 2022

For the Student:

REDACTED Attorney (via videoconference platform)

For the NYC Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 10, 2022

For the Student:

REDACTED Attorney (via videoconference platform)

REDACTED Supervisor (via videoconference platform)

REDACTED Fiscal Supervisor (via videoconference platform)

For the NYC Department of Education:

REDACTED District representative (via videoconference platform)

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 16, 2022

For the Student:

REDACTED Attorney (via videoconference platform)

Parent Parent (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 nine-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”) for the 2021-2022 school year. This Hearing Officer (“IHO”) was appointed to this matter on December 21, 2021 pursuant to the rescindment of the prior IHO.

A prehearing conference was held on January 6, 2022. The District issued a signed pendency agreement dated January 10, 2022. (IHO Ex. I). Status conferences were held on February 4, March 4, and April 1, 2022. A due process hearing was held on April 26, 2022 and continued on May 10, 2022 and May 16, 2022. The Parent submitted six exhibits on May 10, 2022 and all were entered into evidence. The Parent submitted two additional exhibits at the request of this IHO in order to develop the record and both have been entered into evidence. The Parent testified at hearing, as did REDACTED, the supervisor (“Supervisor”) at the REDACTED agency, (“Agency”) which has provided services to the Student during the extended 2021-2022 school year. REDACTED, the supervisor of special services at the Agency (“Fiscal Supervisor”) also testified at hearing. The District failed to appear on two of the three days of the hearing, submitted no evidence and presented no witnesses. The record was closed on May 22, 2022. The date of compliance was extended three times to allow for initial settlement discussions and then for the scheduling of the due process hearing. The final date of compliance is June 4, 2022.

ISSUES PRESENTED

• • Whether the District provided the Student with the free appropriate public education (“FAPE”) or equitable special education services for the 2021-22 extended school year.
• • Whether the Parent’s unilaterally obtained education services for the 2021-2022 school year were appropriate.
• • Whether there are any equitable considerations that would eliminate or reduce the amount of any order for District reimbursement or payment for special education and/or related 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. State guidance reflects that under §3602-c a students are entitled to receive special education services according to an Individualized Education Services Program (“IESP”) while they receive general education from the nonpublic school where their parents enrolled them.^[3] The State guidance defines the term “equitable basis” as provided “in the same manner,” “based on need” and selected from “the same range of services provided by the district to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program.”^[4] 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.^[5]

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 extended school year the Student attended a general education private parochial school in Brooklyn. (Tr. 59-61, 84-85; Par. Ex. A p. 1). There is no evidence that any IESP or IEP was developed for the 2021-2022 extended school year. The last agreed upon IEP was developed by the committee on preschool special education (“CPSE”), originally dated March 22, 2016 and revised a few months later on September 1, 2016. (Par. Ex. B).
• • The revised 2016 CPSE IEP, developed when the Student was almost four-years-old, recommended, inter alia: special education itinerant teacher services (“SEIT”), REDACTED, in a group of two, ten hours per week; speech-language therapy (“SLT”), REDACTED, once weekly for a 30-minute session; and occupational therapy (“OT”), twice weekly for 30-minute sessions.^[6] (Par. Ex. B p. 1). On June 21, 2021, the Parent sent a ten-day notice informing the DOE that the Parent intended to implement the program contained in the last agreed upon IEP and seek public funding for same. (Par. Ex. C). On April 27, 2021 the Parent entered into an agreement (“Agreement”) with the Agency to provide the Student with “Intensive 1:1 Special Services” for the extended 2021-2022 school year. (Par. Ex. E). The Agreement does not specify the type of services to be provided, the number of hours nor the fees to be charged. (Id.) An affidavit submitted by REDACTED, who is identified in the document as the bookkeeper for the Agency, states that the Student was “being serviced for “up to ten hours of Special Education services.” (Par. Ex. F).^[7] This affidavit also states that the amount charged for services rendered to the Student from July 6, 2021 through March 31, 2022 is $35,805.00 and the estimated amount that would be charged for the remaining three months of the 2021-2022 extended school year would be $19,800.00, calculated at $165 per hour. (Par. Ex. F). As of April 27, 2022 no payments had been made to the Agency for these services. (Id.)

The Supervisor testified that the Student, who is currently in the third grade, has received ten hours per week of SEIT services during the 2021-2022 extended school year. (Tr. 55). The Student has challenges with core academics, attention span, social-emotional skills, behavior and expressive language. (Tr. 54-55; see also Par. Ex. G). The Parent testified that the Student has a hard time focusing, dealing with classmates and keeping up with classwork. (Tr. 86-87). The Agency providers have addressed her academic difficulties with push-in and pull-out support that includes the repetition of lessons, breaking down tasks into smaller steps, facilitating generalization and providing motivation and reinforcement. (Tr. 54-57). The teachers use redirection and prompting to help the Student focus and complete work on her own. (Tr. 55). The providers work with the Student during unstructured portions of the school day such as recess to improve her social interactions and behavior with peers. (Tr. 56). The Agency Progress Report provides a detailed description of the Student’s academic and behavioral challenges, progress and the ways the providers address her needs. (Par. Ex. G). The School Report Card reflects the Student’s difficulties in the general classroom. (Par. Ex. H). Both the Supervisor and the Agency Progress Report indicate that the Student has made progress during this school year, but still requires significant support. (Par. Ex. G). The Parent also testified that the Student has made progress in school. (Tr. 88).

The Student attends school during the 12-month extended school year. (Tr. 84). The Supervisor testified that she shows regression in both academics and social skills following school breaks. (Tr. 55-56; see also Par. Ex. G). The Supervisor testified that the Student requires a 12-month program to prevent regression and allow her to avoid additional academic and social delays. (Id.) The Fiscal Supervisor testified that the Agency charges a rate of $165 per hour for SEIT services. (Tr. 67-68).

The District’s Provision of FAPE The threshold issue in this case is whether or not the District provided or offered a FAPE or equitable services for this student during for the 2021-2022 extended school year. The DOE failed to appear for two of the three days of the hearing. The District presented neither witnesses nor evidence. The District failed to develop an IESP or IEP for the 2021-2022 extended school year and has failed to implement services for the Student for this school year. The District has thus failed to satisfy its burden that it provided or offered a FAPE and/or equitable services to the Student for the 2021-2022 12-month 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 services, as she submitted testimony and progress reports that demonstrated that the services were tailored to the Student and were calculated to enable her to make progress. (Par. Exs. G, H; see supra Findings of Fact). The unilaterally obtained special education services were appropriate according to a Burlington/Carter analysis. Prong II has been satisfied.

Equitable Considerations The Parent cooperated with the District. The Parent sent a timely ten-day notice. (Par. Ex. C). 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 she has satisfied Prong III.

SEIT vs. SETSS

This IHO notes that the Student is now REDACTED years old. SEIT services are provided to preschool students only. Special education teacher support services (“SETSS”) is the New York City Department of Education nomenclature for special education teacher support for school age students. The last agreed upon IEP was developed five-and-a-half years ago and recommends SEIT services. The Student is now in the third grade and should receive SETSS. Both types of services provide the student with instruction by a certified special education teacher.

Direct Funding The Parent signed the Agreement with the Agency that lacks specificity and does not appear to be fully executed. However, the Agreement reflects a legal obligation of the Parent to pay for the Agency’s services if the DOE ultimately does not pay. (Par. Ex. E). The Parent requests relief in the form of direct payment by the DOE to the Agency for SEIT services and the continued issuance of “RSAs” for related services. (Tr. 91; Par. Ex. A). 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)). It is the Parent’s burden to establish that she did not have the financial resources to pay for the Student’s unilaterally secured special education services “up front.” (Application of the Dep’t of Educ., Appeal No. 21-163). There is no evidence or testimony in the record regarding the Parent’s financial resources.

ORDER

NOW THEREFORE BASED ON THE FOREGOING, it is

ORDERED that the DOE failed to provide a FAPE and/or appropriate special education services on an equitable basis to the Student for the 2021-2022 extended school year; and it is further;

ORDERED that the Parent’s request for direct payment to the Agency for special education teacher 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 cost of ten weekly hours of special education teacher services, in REDACTED, in a group of two, for the 2021-2022 extended school year, upon receipt of proof of payment; and it is further;

ORDERED that the District will continue to issue RSAs for the Student’s related services of 1:1 speech-language therapy, REDACTED, once weekly for a 30-minute session; and 1:1 occupational therapy twice weekly for 30-minute sessions, for the 2021-2022 extended school year; and it is further;

ORDERED that all relief not specifically granted herein is DENIED.

Dated: June 4, 2022

Rachel Gibbons

Rachel Gibbons, Esq.

Impartial Hearing Officer

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A. Impartial Hearing Request 7/06/21 3

B. CPSE IEP 9/01/16 15

C. Parent ten-day notice letter 6/21/21 1

D. Provider certification undated 3

E. Parent contract 6/29/21 1

F. Affidavit 4/27/22 1

G. Progress report 5/12/22 4

H. School report card 2021-22 2

IHO

I. Pendency agreement 1/10/22 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.

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] (“Chapter 78 of the Laws of 2007 – 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, preface, VESID Memo Sept. 2007).

[4] (Id., Attachment 1 p. 11).

[5] The last agreed upon special education plan for this Student was a CPSE IEP developed in 2016, thus the recommendations of the CPSE IEP are still in force although the Student is now in the third grade at a general education private school.

[6] The pendency agreement reached by the District and the Parent, dated January 10, 2022, specifies that the SLT and OT were to be provided on a 1:1 basis.

[7] REDACTED did not appear as a witness at the due process hearing.