New York City Department of Education, Impartial Hearing Decision

Case No.: 210909

SED No.: 554808

Student’s Name: REDACTED

(hereinafter referred to as “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Request by: REDACTED

(hereinafter referred to as “Parent” or “Mother”)

Hearing Dates: January 10, 2022, February 11, 2022, March 14, 2022, April 5, 2022 and March 24, 2022

Actual Record Close: October 3, 2022

Hearing Officer: Stephanie Seto, Esq.

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

For the Student:

REDACTED, Law Office of REDACTED

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 11, 2022

For the Student:

REDACTED, Law Office of REDACTED

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 14, 2022

For the Student:

REDACTED, Esq.

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 5, 2022

For the Student:

REDACTED, Law Office of REDACTED

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 7, 2022

For the Student:

NONE

For the Department of Education:

REDACTED, District Representative

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

For the Student:

REDACTED, Law Office of REDACTED

REDACTED, Mother

REDACTED, Program Director, REDACTED

For the Department of Education:

REDACTED, District Representative

INTRODUCTION

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on or about July 7, 2021 (P-Ex. A)^[1]. The DPC alleges the New York City Department of Education (the “District” or “DOE”) failed provide the Student with a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) (20 U.S.C. section 1415, et seq.), Sections 4404(1) and 3602-c of the New York State Education Law (NYS “dual enrollment statute”) and attendant Federal and New York State Regulations against, by failing to implement an Individual Education Services Plan (“IESP”) granting Student Special Education Teacher Support Services (“SETTS”), Occupational Therapy (OT) Services and Counseling Services following Student’s “Turning Five” IESP meeting on April 15, 2021 to be implemented for the 2021-2022 school year. P Ex. A-3-4. The Parent seeks SETTS services of five periods a week to be paid by the District at an enhanced rate or provider’s “prevailing rate”. P Ex. A. The DPC also sought a bank of compensatory periods of SETSS and related services for parts of the 2021-2022 school year not serviced. P Ex. A. At hearing and pursuant to Parent’s evidence presented including the testimony of Parent’s witnesses and Parent’s 10-Day Notice of Private Placement only an enhanced rate for SETSS was sought as relief. Tr. 113-168; P Ex. B, D, E and F.

A list of the documentary evidence submitted is appended to this Order. The compliance date for issuing a decision in this proceeding was extended prior to this IHO’s assignment and after that to allow the parties to prepare fully and time to obtain transcripts and issue a Finding of Fact and Decision in this matter.

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on December 22, 2021.

A pendency hearing was held on January 10, 2022. Parent submitted the following exhibits entered into the record as evidence: Parent Exhibit A is the Due Process Complaint dated July 8, 2021 (“DPC”); Parent Exhibit B is an Individualized Educational Services Program dated April 15, 2021 (“IESP”).and Exhibit C is a 10-Day Notice dated June 27, 2021, stating Parent consents to services recommended in the IESP but she cannot implement the SETSS portion of the IESP at the District’s standard rate and seeks reimbursement or funding. P Ex. C.

At the pendency hearing, Parent sought pendency services as mandated in the IESP. Tr. 4-5. The mandated services in the IESP are as follows: five periods of 1:1 SETSS, Occupational Therapy 1:1 twice a week for forty-five (45) minutes and Counseling Services 1:1, once a week for 30 minutes and group service, once a week for 30 minutes and an issue of pendency based upon the IESP.

Parent’s advocate from the Law Offices of REDACTED, REDACTED (“REDACTED”), asserted the IESP is the “last-agreed upon IESP” and should be the basis of pendency, although not implemented. Tr. 6. In the DPC, Parent states the IESP is not challenged, and Parent seeks implementation of the program and an enhanced rate. Ex. A; Tr. 4-5. Parent’s advocate also asserted that the IESP is a 12-month IESP. District Representative REDACTED (“REDACTED”) did not dispute that although the IESP was unimplemented, it would be appropriate for pendency. Tr. 15-16. But the District disputed the IESP contained a program for a 12-month school year and asserted it had to be a 10-month program. Tr. 15-16. Therefore, the Parties disputed whether the IESP was for a 10-month or 12-month school year. Tr. 6-16.

It was undisputed that the IESP was created pursuant to the Student’s “Turning-5” review for entrance to Kindergarten, and that the Student had a prior IEP created by the Committee on Preschool Special Education (CPSE). Tr. 12. Upon inquiry as to why the Parent was not submitting the earlier implemented preschool IEP, Parent’s advocate indicated Parent did not want pendency on the Preschool IEP stating that the earlier preschool IEP is not the” last agreed upon” as “[t]here were concerns. The child has a severe disability.” Tr. 12. The IESP indicates the prior IEP does not give the Student as many hours of SETTS as the IESP. See P Ex. B.

In this IHO’s Pendency Order issued on February 5, 2022, pendency (following email exchanges with the Parties regarding the impossibility to issue pendency on the IESP) pendency was not granted on the IESP since it was unimplemented and there was a factual dispute about the program (10 versus 12 month) in the IESP offered for pendency that could only be determined by an ultimate hearing on the merits, and therefore was not appropriate as a pendency program since it was unimplemented and disputed. IHO Ex. I, Pendency Order and IHO Ex. II, Emails IHO and Parties January 2022. As neither party offered the preschool IEP and Parent’s advocate asserted this was not “last agreed upon” because Parent wanted the increased SETTS, no pendency was ordered. IHO Ex. I

On February 11, 2022, a status conference was held that only REDACTED appeared, and District did not. REDACTED requested a hearing be scheduled as soon as possible on the merits. Tr. 25. The hearing date was set.

Prior to the March 14, 2022 hearing, Parent’s counsel filed an amended Due Process Complaint on March 9, 2022 (“Proposed Amended DPC”) asserting pendency on a 2019 Preschool IEP. See IHO III, Email Exchange Parties and IHO. This IHO indicated to the parties that as an IHO I had no power to approve such an amendment per 8 NYCRR 200.5(i) (7)(i) (although not yet received) as there had already been a pendency hearing. IHO Ex. III.

On March 14, 2022, REDACTED (“REDACTED”) appeared for the scheduled hearing, and the District did not.^[2] REDACTED was not prepared to go forward with the hearing and as the Amended Complaint was outstanding and REDACTED was not able to attend the hearing due to a family emergency, a hearing on the merits did not proceed. REDACTED requested this IHO hold another pendency hearing in the matter. Tr. 34-77. But this IHO pointed out there was an amended DPC pendency and there was now a question of what would be the operative DPC in this matter.. Tr. 34-77. REDACTED requested this IHO indicate if the Amended DPC was withdrawn if the IHO would allow a new pendency hearing seeking pendency based upon the Preschool IEP. Tr. 40--77. REDACTED stated his office had incorrect information when they proceeded with original DPC and the pendency hearing. Tr. 46-77. I indicated that the request was problematic as Parent had already taken the position that the preschool IEP “was not the last agreed” upon on the record and had essentially refused to enter it when this IHO inquired why it was not offered at the pendency hearing and I viewed the request that another pendency hearing held per the present DPC was problematic as the request for another pendency hearing was essentially a request for re-argument without stating it was a request for re-argument. Tr. 1-24; 34-77. This IHO inquired why didn’t Parent swiftly proceed to hearing on the merits at this point (as IHO previously suggested when the issue arose over the dispute between the 10 month versus 12-month program in the pendency hearing) and Parent’s representatives had indicated they wanted to go to a merits hearing in February. See Tr. 2-124; IHO Ex. II. REDACTED indicated he preferred to get pendency first and then deal with the merits as this was a better way to deal with litigating the DPC. REDACTED asked the IHO to indicate if she would allow another pendency hearing if the Amended DPC were retracted. Tr. 34-77. I indicated I would respond via email as to my position on a second pendency hearing after examining the issues. Tr. 34-77.

On March 15, 2022 by email this IHO informed the parties:1. a re-argument of pendency under the current DPC would not be entertained; 2. The IHO could not approve the Proposed Amended DPC and only District could do that due the fact a Pendency hearing had occurred; and 3. if the amended DPC the matter would go forward on the next scheduled merits hearing. IHO III, Email IHO to parties March 15, 2022.

A merits hearing was scheduled for April 5, 2022. Tr. 80-81. Only REDACTED from Parent’s counsel’s office appeared. Tr. 80-81. Prior to the hearing, Parent’s counsel’s office disclosed new packet of documents as exhibits to submit at the hearing that included the Proposed Amended DPC and the 2019 Preschool IEP. Tr. 84. This IHO expressed confusion at this submission that appeared to be seeking a pendency hearing based on the Proposed Amended DPC that had not been accepted by the District and was not the operative DPC. Tr. 84-85. REDACTED indicated REDACTED was supposed to handle the hearing, and this was full disclosure on the merits but requested another date as District did not appear. Tr. 85-89.

On April 7, 2022, a status conference was held, and Parent’s counsel did not appear and REDACTED appeared for the District. Tr. 97. District requested the May 10, 2022 hearing date be adjourned due to conflicts, but this IHO refused due to the multiple absences of the District and indicated I would only change the date if the parties emailed me there was an agreement and request for new dates with suggested dates. Tr. 102. The hearing would move forward on the original DPC as the Proposed Amended DPC was not accepted by the District. Tr. 104. REDACTED indicated a resolution offer had been resent Parent’s counsel at the end of March. Tr. 104.

The hearing on the merits was held on May 10, 2022 and REDACTED (“REDACTED”), J.D. awaiting Admission to the Bar of REDACTED’s Office appeared for Parent with Parent and REDACTEDs (“REDACTEDs”) the Program Director at REDACTED Support Services (“REDACTED” or “the Agency”). Tr. 107-110. REDACTED appeared for the District. 107-110.

District did not put on a direct case offering no evidence or witnesses. Tr. 110.

Parent presented Parent and REDACTEDs testimony via affidavit and offered one more exhibit (besides the three entered in the Pendency Hearing and already in record.) Tr. 111. District cross-examined the witnesses and this IHO asked questions too. Tr. 118-156.

I requested written closings, but the District requested to place a statement on the record. Tr. 156. I allowed the parties to make statements on the record (as there had not been openings) and also set dates for submission of closing statements. 157-159.

District did not submit a written closing statement and Parent submitted a three-page written statement, IHO IV.

Parent’s Position The District denied Student a FAPE by failing to implement the SETTS services in the April 2021 IESP and Parent could not find services at the District’s standard rate. Tr. 141-142;P Ex. D-2. The IESP granted 12-months of services and Parent independently implemented the SETTS mandate in the April 2021 IESP for the eo21-2022 school year. Tr. 168. District denied the 12-month services over the summer. Tr. 168. District asserted the case was “not about the cost of services being provided, the parent’s obligations, Parent’s Attorney’s obligations but simply the lack of implementation. Tr. 167, 169. Parent asserted the Burlington/Carter test was appropriate and that prongs one and two were satisfied in Parent’s favor due to District’s failure to present a direct case and show FAPE. IHO Ex. IV. On the Equities “Parent has placed themselves under financial burden for which District is obligated and would be an extreme burden.” P Ex. IV, p.3.

District’s Position

Parent does not dispute the appropriateness of the amount and type of services provided in the IESP. Tr. 158-167. Parent offered conflicting testimony as to whether Student received summer services and also she did not know about the resolution offered by the District. Tr. 163-164. As Parent was unaware of the resolution offered and secured her attorney through REDACTED’s suggestion, Parent’s counsel acted as serving the Agency and not the Parent. Tr. 164-166. REDACTED’s rate was unreasonable, inflated as the actual SETTS provider assigned by REDACTED was paid less than half ($82.00) of REDACTED’s “prevailing rate” of $175.00. Tr. 164-166. The rate sought was above market rate for the 2021-2022 school year for a Student aged four or five and if this was the “prevailing rate” as REDACTEDs testified Parents that paid up front (rather than await direct funding from District) paid a lower unspecified rate. Tr. 164-167. District asserts the witness testimony support that Parent was never expected to pay for SETTS services as she was immediately referred to her attorney. Tr. 165.

ISSUES Presented

• • Did the Student’s Initial IESP contain a 10-month or 12-month Program?
• • Did the District provide Student a FAPE?
• • Did Parent show that the Student’s program was appropriate (Prong II)?
• • Do the Equities favor Parent (Prong III)?

FINDINGS OF FACT

Student turned REDACTED years old on REDACTED, REDACTED. P Ex. A-1 and B-1. For the 2022 school year, he was a kindergarten student who was parentally placed at a private religious school, REDACTED during both the 2020-2021 and 2021-2022 school years. P-Ex. B and E. The Student is classified with Emotional Disturbance. P Ex. B. Parent did not dispute that the program and services in the 2021-2022 IESP created by the Committee on Special Education (CSE) following Student’s “Turning Five” IESP meeting on April 15, 2021 was inappropriate except asserted that it was a 12-month program and not a 10-month program as District asserted. Tr. 167-168;P Ex. A-1.

The April 2021 IEP contains a program of five periods of 1:1 SETTS in English per week at a “separate location” and 1:1 Occupational Therapy (OT) twice a week for 45 minutes and Counseling Services 1:1 for thirty minutes and Group 1x a week for 30 minutes to be provided at separate location all to start 7/1/2021. P Ex. B-9 The District and Parent agreed on the amount and type of services in the Turning Five April 2021 IESP but do not agree upon whether the IESP program mandated in the IESP is a 10-month or 12-month program based upon the face of the IESP. Tr. 3-24;167-168; P Ex. B; IHO IV, Closing Brief.

The April 2021 IESP states the projected date IESP is to be implemented is 7/1/2021. P Ex. B-1. The projected date for the Student’s next annual review is stated as April 15, 2022. P Ex. B-1. The IESP does not contain a specific statement if the Program is to be for 10 months or 12 months. Parent stated she “thought” she was familiar with the IESP and indicated she did not have the IESP readily available as it was given to REDACTED. Tr. 148-149.^[3] Parent testified the April 2021 IESP meeting was a “Turning Five” meeting with the CSE to determine what services Student would need for the 2021-2022 school year. Tr. 152. Parent testified that the issue of Student attending school in the summer of 2021 was not discussed at the Turning Five and Student was registered for camp. Tr. 153. Student attended camp during the summer of 2021. Tr. 153. Parent also testified on redirect that the April 2021 IESP “said 12 months” and she wanted Student to get “services in camp and I tried to get him services. I remember emailing the DOE, and they told me that I wasn’t eligible, so I left it off at that. You know, there’s other cases that are more serious than mine, and they said that they’re not giving to services for based on—based on, you know, his case, so that was it….So I didn’t get the 12-months.” Tr. 154. Parent testified Student did not receive any SETTS services during the summer of 2021. Tr. 155.

On June 27, 2021, Parent’s counsel sent a Ten-Day Notice of Parent’s intent to implement the IESP with a SETSS due to Parent’s inability to locate providers for SETSS at the District’s standard rate. P Ex. C-2. Parent testified on direct that the District did not make available a SETTS provider, and she could not find one at the District’s rates, on cross she testified she relied on the preschool director to help find a provider that worked directly with District. Tr. 141-142; P Ex. D-2. When the preschool director could not find a provider she suggested REDACTED to Parent. Tr. 142. Parent contacted REDACTED in June to put a provider in place as she did not “want to be left hanging” and decided she would work with REDACTED sometime in the summer Tr.142-143. REDACTED recommended the attorney to Parent that is representing Parent. Tr. 144.

In her direct testimony by affidavit, Parent testified she signed a contract with REDACTED that obligates her to pay for the SETTS services provided if the District does not pay. P Ex. D-2. In her testimony at hearing, Parent could not definitely state she had signed a contract that had obligated her to pay for the SETTS services if the District did not as she did not remember what she had signed. Tr.154-155. REDACTEDs testified Student’s parents “have signed a document taking responsibility” that REDACTED will be paid either from parents or another source. Tr. 131-132. No contract regarding Parent’s obligation to pay the SETTS services was provided. REDACTEDs testified that parents have not yet been invoiced for the SETTS services and will be invoiced if the District does not fund the services. Tr. 131.

REDACTEDs testified the prevailing rate for 1:1 SETTS services for children of any age (unless involving heightened training such as a BCBA) that were to be directly funded by the District was 175.00 per hour. Tr. 126-133. REDACTED paid REDACTED (“REDACTED”), Student’s assigned SETTS provider for the 2021-2022 school year $82.00 an hour for her services as an employee and REDACTED pays for insurance, workers’ compensation and taxes. Tr.127. The typical pay for a SETTS provider at REDACTED is $80-85 an hour. Tr. 128.

REDACTEDs testified the rate encompasses the anticipation in delays of pay for services from the District that are typically not less than 18 months and the expense associated with such delay. 129-133. REDACTEDs testified the rate would be lower than $175.00 per an hour if it is anticipated that the services would be paid timely but could not testify to an “exact number.” Tr. 133-134. REDACTEDs testified that the rate includes overhead charges of REDACTED including supervisors’ pay, professional development and training, the software (standard for several years) tracking goals and progress. 126-131.

REDACTEDs, the Program Director of REDACTED, testified that REDACTED provided services to Student in school from July 2021 through the 2021-2022 school year school to date of the hearing ongoing. Tr. 134-135. REDACTED did not testify. REDACTEDs testified Student’s program with REDACTED consisted of “realistic goals for the year” and collaboration with his other providers and the resources to be involved such as squish balls for him to relax in class, and where she is to work with the Student. Tr. 136-137. REDACTEDs testified that REDACTED creates a program for each Student at the beginning of the year and the provider addresses this in quarterly progress reports which is typically shared with the parent and school. Tr. 137-138. No documentary information regarding REDACTED’s work with Student over the 2021-2022 school year was provided.

REDACTEDs testified REDACTED was assigned to Student for five hours a week at student’s school and did not have an exact count of her hours. Tr. 134. REDACTEDs testified he did not have an exact count of how many sessions Student had had with REDACTED at the time of the hearing. Tr. 135. No documentary information was provided that evidenced anything with regard to REDACTED providing SETTS to Student. REDACTEDs testified in his affidavit that Student’s services “are typically provided outside of the classroom. They are individualized sessions that include a great deal of specialized instruction.” P Ex. E-4. But, on cross-examination REDACTEDs testified that REDACTED provided both “push-in and pull-out” and worked “first and foremost in the classroom supporting Student and if “she feels that he needs to be pulled out in order to review lessons, she does some pull-out as well.” Tr. 136.

REDACTEDs testified he is the direct supervisor of REDACTED’s programming and is not in field. Tr. 138. He described Student’s needs as to his disability affecting his ability to function in the classroom due to emotional regulation, sensory needs, attention and need for redirection testified in his affidavit Student had “already shown signs of progress with his SETSS service provider. Tr. 135-136. However, [Student’s] academic and social delays warrant the need for continued services of 1:1 5 periods of SETTS a weekly.” P Ex. E-4-5.

On cross-examination, when asked if her attorney informed her the District had offered a Resolution Agreement in this matter for a rate of $150.00 an hour for Student’s SETTS with REDACTED, the Parent testified she did not know if she remembered that, but it was possible. Tr. 146-147.

The DPC includes a request for relief that the District fund a bank of compensatory periods of SETTS and related services for the entire 2021-2022 school year – or parts that were not serviced. Parent only sought SETTS direct funding in the hearing in the hearings on the record and in their closing statement. Parent did not testify or submit any documentation regarding financial need or why they did not pay REDACTED for Student’s services and seek reimbursement.

I find the testimony of REDACTEDs unreliable as it was directly contradicted by Parent’s testimony that Student did not receive SETTS during the summer and REDACTED testified it started in July. While I do not find Mother’s testimony wholly not credible it was extremely vague and problematic on issues that were directly relevant to the disputed issues. Issues of credibility and failure of Parent to provide documentation to support the issues in this matter that are disputed and were Parent’s burden are discussed in my Conclusions of Law.

CONCLUSIONS OF LAW

Applicable Standards The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student’s recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998). Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE 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) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), 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, as 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” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA.” In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”

Under New York State Education Law section 3602-c (“3602-c”), unlike the provisions of the IDEA, section 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404. Id. Students with disabilities who are privately placed by their parents in nonpublic schools are entitled to receive special education “services” by filing such a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made. In accordance with this law, the District’s CSE must review the request for services and develop an IESP for a student the request has been made for based upon the student’s individual needs in the same manner and with the same contents as an IEP. See, N.Y.S. Ed. Law § 3602-c(2)(b)(1); 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, Memorandum from James P. DeLorenzo, re: Chapter 378 of the Laws of 2007, New York State Education Department, Sept 2007 (“Guidance Memo on 3602-c”) https://www.p12.nysed.gov/specialed/publications/policy/documents/chapter-378-laws-2007-guidance-on-nonpublic-placements.pdf. A parent who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location. See, Id. at 5.

While the statutory scheme of Education Law section 3602-c places the responsibility of selecting and placing the student in a nonpublic school on the parent, the implementation of the services called for by a student’s IESP falls on the district insofar as “boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent.” See § 3602-c; See, Application of Student with a Disability, SRO Appeal 16-008. The CSE must “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. The decisions of the State Review Officers, while not binding, have repeatedly found that a school district in New York is required by law to locate and assign a student publicly provided teachers or services providers for dually enrolled students under N.Y. Ed. Law § 3602-c(2)(a); see, SRO Appeal 16-008; Application of a Student with a Disability, SRO Appeal No. 20-042; Application of a Student with a Disability, SRO Appeal No. 20-094;Application of a Student with a Disability, SRO Appeal No. 20-141; Application of a Student with a Disability, SRO Appeal No. 21-101; Application of a Student with a Disability, SRO Appeal No. 21-119.

The State Review Officers uniformly apply a Burlington-Carter test to determine to determine if districts can be made to pay for special education services that a parent paid for or has become legally obligated to pay for in cases falling under 3602-c and as a “practical matter this kind of dispute can really only be effectively examined using a Burlington/Carter unilateral placement framework.” SRO Appeal No. 21-119, p. 11; see also, e.g., SRO Appeal No. 16-008, SRO Appeal No 20-042, SRO Appeal No 20-042, SRO Appeal No 20-094, SRO Appeal No 21-141.

The burden of proof is on the school district during 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. NY Educ. Law § 4404(1)(c); see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012); M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. August 27, 2010).

The courts have determined that the remedy of reimbursement for private educational services and expenses may be granted by an IHO for a denial of FAPE by a school district if determined appropriate under the Individuals with Disabilities Education Act (IDEA). Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993). Reimbursement requires the school district to “belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. Burlington, 471 U.S. at 370-71; see 20 USC §1412 (a)(10) (c)(ii); 34 CFR § 300.148.

These decisions are commonly referred to as the Burlington/Carter “three-prong” test or analysis to the question of whether a board of education has delivered a FAPE and whether it may be required to reimburse parents, as follows: (i) Prong 1- the school district’s offered services or IEP were inadequate or inappropriate, i.e. the school district must prove it has provided student with FAPE;(ii) Prong 2 -the burden of proof is placed upon parents to prove the services selected by the parents were appropriate for the student; and (iii) Prong 3 a balancing of equitable considerations favor the parent(s)’ claim for reimbursement. Id.

“SETSS” is generally understood to stand for special education teacher support services, and is a general term used for special education services provided by a special education teacher to school-aged students, but it is undefined in the NYS continuum of special education services. See 8 NYCRR § 200.6. State Education Department State Review Officer Decisions consistently note that the term SETTS is undefined, and many cite to SRO Decision 16-056 which attempted to clarify the definition of SETSS services and found the meaning of SETSS should be defined on a case-by-case basis informed by the evidentiary record in which it bears a disputed issue and indicates how SETSS are described on a student’s IEP and the specific objectives to be achieved with the service should be taken into account. See SRO 16-056, 12 -19.

ANALYSIS

While this matter may have appeared to be a “very straightforward” matter involving a clear denial of FAPE, it is not a simple “rate enhancement” case as the claims in the DPC are colloquially referred to. Issue that was disputed and are in issue are moreover not assisted by both parties’ failure to present a fulsome case.

Denial of FAPE To start and to address the easiest part of this case, there is no question Student was denied a FAPE due to the fact there is no basis for this IHO to find that the District implemented the undisputed five period of SETTS provided for in the IESP.

Determination the IESP only covered a 10-Month Kindergarten Program The parties disputed if the IESP covers 10-months or 12-months. Ultimately, the burden of proof as to the program or if only 10-months was appropriate is on the District. The parties relied upon what was written on the IESP. P Ex. B. The IESP reports Student was a four-year-old pre-K Student referred for “a Turning 5 Reevaluation” to determine continued eligibility for school aged special education through the CSE. P Ex. B-1. The Student was receiving four hours of Special Education Itinerant Teacher Services (SEIT), OT twice a week and counseling once a week. P Ex. B-1. There is no dispute among the parties that the IESP at issue was created by the CSE and Student’s IEP from the CPSE was not entered into evidence. The parties acknowledged during the pendency hearing the CPSE IEP [program offered Student less services. Tr. 11-15.

The IESP references that services were to start on July 1, 2021. P Ex. B 1 and 9. The IESP contains no statement that Student should receive services for a 12-month school year versus a 10-month school year. P Ex. B. There is no discussion of regression in the IESP which is the norm for determining whether a Student needs 12-month services. P Ex. B. Parent testified Summer services for 2021 were not discussed at the April 2021 Turning Five IESP meeting, she never intended to have Student attend school during the Summer of 2021 as she had had registered Student for camp and Student went to camp and she did not engage REDACTED for SETTS services during the Summer of 2021. Tr. 153-155. Although Parent testified the April 2021 IESP said 12 months, she also was hazy on whether she was familiar with the IESP and testified she did not have a copy since she gave to REDACTED to implement. Tr. 148-149.

Parent’s testimony that she emailed the District to get Student “services in camp” but was told that he was not eligible and “he did not get the 12 months” is unsupported by any emails or documentary evidence. This testimony throws into question the Parent’s affirmative belief her child was entitled to 12 months of services pursuant to the IESP starting on July 1, 2021 as she testified Student was not eligible and Student get the 12 months. This testimony raises questions why Parent did not arrange for Student to receive SETTS at camp if she believed the IESP covered it and there was mandate for summer services, as she had put the District on notice with the Ten-Day Notice (through her attorney) in June 2021 and had already reached out to REDACTED and hired counsel at REDACTED’s recommendation. I note neither the DPC nor the 10-Day Notice specifically state that Parent considers the IESP a 12-month mandate. See P Ex. and C.

There are quite a few legal problems with a finding that the IESP is a document that mandates a 12-month program. 3602-c, by its very terms, is limited to a provision of programs or services during the course of the “regular” school year. See 3602-c(1)(a). The Guidance Memo on 3602-c providing guidance on a district’s obligations under 3206-c indicated that districts are not required to provide dual enrollment services to students with disabilities during the summer. Guidance Memo on 3602-c, p.14. Therefore an IESP can only be for ten months per statutory law.

But as is the practice in New York, a student that has a 10-month IESP may receive 12-months of services to prevent regression any particular school year through provision of an IEP for those summer months, when a student requires 12-month services to prevent regression. See R. G. v. NYC Dep’t. of Educ., 18 cv-11219 (S.D.N.Y. Jan. 24. 2022); SRO Appeal No. 20-094; Questions and Answers on Individualized Education Program (IEP) Development, The State's Model IEP Form and Related Documents," at pp. 39-40, Office of Special Ed. [Apr. 2011], http://www.p12.nysed.gov/specialed/formsnotices/IEP/training/QA-411.pdf.

Pursuant to the New York State Education regulations, the CPSE oversees the summer a Student turns five and July or August of the school year that student first becomes eligible to attend elementary school. 8 N.Y.C.R.R. § 200.1(mm)(2).

Additionally, 3602-c only pertains to children of compulsory school age and parental placements in elementary and secondary schools and does not cover preschool. See 3602-C(1)(d); N.Y. Ed. Law 3202(1) and 4401(1); Guidance Memo on 3602-c, p. 13. It does not apply to a child who is less than compulsory school age continuing in a preschool program, even if the preschool program is located in the same building as a kindergarten or other elementary classrooms. Id. New York regulations state a student shall be deemed a preschool student with a disability through the month of August of the school year in which student first becomes eligible to attend school pursuant to § 3202 of the Education Law. 8 N.Y.C.R.R. 200.1(mm)(2).

I find based on Parent’s testimony and the face of the IESP itself along with the rules and law covering IESPs the District met the burden of proof the April 2021 IESP only mandated a 10-month program. An IESP or IEP can only cover an annual cycle and the IESP states Student’s annual date of review is April 15, 2022. Even if the IESP intended for services to start on July 1, 2022 it only covered a 10-month period.

Legally the Student would not have been under the purview of the CSE or eligible for services per 3602-c until September 1, 2021 when Student was eligible to start Kindergarten and was over five. Note, Student was not even REDACTED on July 1, 2021 (birthdate was REDACTED) so 3602-c did not cover Student. If Student was eligible for summer services in 2021 it would have to have been overseen by the CPSE via an IEP by law. Parent’s testimony further supports the IESP did not cover the summer as she testified the summer was not discussed. She also claims she corresponded with the District and was told Student was “ineligible.”

Therefore, while the District failed to prove FAPE relating to a failure to implement, I find there was no denial of FAPE for denial of 12-month services as parent’s claim is and it is that the April 2021 IESP granted 12-monthes of services which it could not and did not.

Prong 2- Appropriateness of Parental Unilaterally Obtained SETSS

There is insufficient evidence in the record to support Student appropriate SETTS services. Parent still had a Prong 2 burden. Parent agreed with the SETTS program in the April 2021 IESP program and the claim herein for an enhanced rate that Parent seeks direct funding of $175.00 per hour is based solely on the District’s failure to implement. Parent did not provide any evidence of what Student’s SETTs program entailed, the quarterly progress reports that REDACTEDs testified existed, any testimony from Student’s SETTS provider, REDACTED, or other evidence of the appropriateness of the SETTS. There is no evidence that Student received an appropriate SETTS program pursuant to the agreed upon services mandated in the IESP; in fact, there is zero evidence Student received the SETTS services.

REDACTEDs’ testimony was not credible or reliable. He testified Student received SETTS at school in the Summer of 2021 as opposed to Mother’s testimony she did not arrange for SETTS in the Summer and Student did not attend school went to camp instead. In REDACTEDs’ affidavit he testified Student services were typically provided in the classroom and the sessions were individualized with specialized instruction. P Ex. E-4. But on cross examination he testified that Student primarily received push-in services. Tr. 134-136. Parent does not dispute the IESP which specifies SETTS outside the classroom or “at a separate location” primarily push-in services would not be in the keeping with IESP directives. P ex. B-9. REDACTEDs stated he was not an onsite supervisor and just the overall programming director and works with REDACTED’s “team and providers to ensure that the needs of all students and teachers are met. P Ex. E-2. There is no basis provided for his personal knowledge of Student (whom he testified he never met), what went on from day to day with Student and the specifics of his familiarity with Student’s or if he even spoke with REDACTED regarding these issues.

As REDACTEDs has shown himself not credible I cannot credit any of his vague statements regarding Student’s program with REDACTED or Student’s alleged progress. REDACTEDs testified to REDACTED’s use of a computer program to track the Student’s programming and the creation of quarterly progress reports, yet no documentary evidence was provided. Also REDACTEDs could not testify to the amount of SETTS sessions Student had received over the year and no such documentary evidence was offered either. I draw a negative inference from the failure to provide any documentary evidence relating to Student’s programming or quarterly reports or the Setts sessions, especially as REDACTEDs testified as to REDACTED’s overhead and computer program used to track the Students and create programs as a basis for the SETTS rate charged that was more than double what he testified the SETTS provider was paid. (This will be discussed also under Prong III).

Therefore, due to the Parent’s lack of any evidence that there is not a basis for finding Student received appropriate services.

Prong 3- Equities

As discussed in the Findings of Fact there is no evidence in the hearing record that Parent has expended any funds for which she is entitled to be reimbursed and Parent’s request is request for direct funding.

I will not address issues with Parent’s testimony regarding attempts to find a provider as a factor to determine whether or not Parent is entitled to the equities at the District rate as per the law as discussed above that burden should not be on Parent and District did not provide any evidence that a SETTS provider was granted.

But Parent did not provide sufficient evidence of an obligation to pay for SETTS to REDACTED for several other reasons. As discussed in Prong 2, there was no evidence REDACTED provided five hours of SETTS a week to Student.

The hearing record lacks any convincing evidence of a contract or legal obligation binding the parents to pay REDACTED. While Parent testified on direct she entered into a contract, when she testified live during the hearing she did not remember if there was a contract that obligated her to pay if the District did not directly fund. REDACTEDs testified not only had Parent had not paid but had not been invoiced and would not be unless the District did not pay raises relevant questions for equitable consideration. REDACTEDs also would not use the word “contract” but that parents had signed something acknowledging their responsibility if District did not pay. This documentary evidence was not produced and entered into the record. I derive a negative inference from this. There is nothing verifiable in the hearing record to indicate parents are legally obligated to pay REDACTED.

REDACTEDs could not testify to the amount of services that Student was provided, only that the agency provided services, Parent and REDACTEDs’ account of when services began conflicted and Parent did not enter any documentary evidence, such as invoices, reflecting the amount of services provided or the rate charged.

No reason was given for why the Parent could not pay REDACTED and then request reimbursement. This is relevant as REDACTEDs testified that the rate would have been lower if a Parent paid timely as opposed to a length time for direct funding from District. Therefore, this IHO is left without an indication as to why the rate could not have been lower than $175.00 which essentially is REDACTED’s direct funding rate and creates a question as to the reasonableness of the $175.00 rate.

This automatic treatment of REDACTED’s arrangement with Parent as one where Direct funding would be sought along with other testimony given raises red flags as to who was the real party in interest for payment from the District if there had been appropriate SETTS services. This taken together are as follows: Parent obtained counsel of REDACTED’s recommendation immediately upon contacting REDACTED (after the school recommended REDACTED and told Parent they could not identify a provider that provided SETTS at the standard District rate), Parent gave the IESP to REDACTED and did not have it and therefore Parents’ counsel must have obtained the IESP from REDACTED; Parent could not “remember” if she “knew” if her attorney had presented District’s Resolution offer of $150.00 offer. District did not enter the Resolution offer, but it was placed on the record that a Resolution was sent to Parent ‘s counsel in January of 2022 and again at the end of March 2022 and Parent’s counsel did not dispute this. Therefore, the evidence supports it is more likely that REDACTED is the party in interest here if they have a claim for payment from District and this would not be the appropriate forum.

Finally, the testimony of REDACTED did not support a finding that the rate should be more than double the rate that REDACTEDs testified REDACTED was paid. There explanation for the rate based upon the overhead was unsupported considering the fact none of the reports created by REDACTED’s software is asserted as overhead and part of the basis of such a rate were not produced. Student was young and there was no testimony as to exceptional learning difficulties or behavioral difficulties. There was no support for the $175.00 an hour rate. Therefore, I find the rate of $175.00 was unsupported

Therefore, with no conclusive proof of the services, a contract obligating parents, why parents are seeking direct funding and were never invoiced therefore requiring REDACTED’s higher rate of $175.00 for direct funding, there is no evidence of financial injury to parents and the appropriate relief. The equities do not support an order that District reimburse Parent or directly fund SETSS and the Parent’s request for a determination that SETSS services be funded at a rate of $175.00.

Under the circumstances of this matter, due to Parent’s failure to prove Prong 2 or 3, the Parent's request for a determination that the SETSS services should be funded must be denied.

ORDER

IT IS HEREBY ORDERED that the Parent’s request for relief under the DPC shall be denied.

SO ORDERED

Dated: October 3, 2022 _________________________

Stephanie Seto, Esq.

Impartial Hearing Officer Hearing Officer’s Findings of Fact and Decision

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.

PARENT EXHIBITS

No. Description Date Pages

A. DPC 78//2021 4

B. IESP 04/15/2021 13

C. TDN 6/27/2021 2

D. Affidavit of REDACTED May 9, 2022 2

E. Affidavit of REDACTEDs May 9, 2022 5

F. Certificate Record of REDACTED Undated 1

IHO EXHIBITS

• • Pendency Order, February 2022
• • IHO Ex. II, Emails IHO and Parties January 2022
• • III, Email Exchanges Parties and IHO March/April 2022
• • Parent’s Closing Statement, 3pp.

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits. The date in the record for the exhibit is in error.

[2] Ms. REDACTED sent an email that she was unavailable due to a family emergency.

[3] Both Parent and REDACTEDs seemingly testified without Parent’s Exhibit packet given to them for review; REDACTEDs stated he did not have the IESP available and had not reviewed it recently. Tr. 117-118