New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 555195 - NYC: 211281

FINDINGS OF FACT AND DECISION

Case Number: 211281

Student’s Name: [REDACTED] [REDACTED]

Hearng Requested By: Parent

Dates of Hearing: January 7, 2022

March 7, 2022

April 27, 2022

Actual Record Close Date: May 2, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

January 7, 2022 For the Parent:

[REDACTED], Advocate For the Department:

[REDACTED], District Representative

March 7, 2022 For the Parent:

[REDACTED], Advocate For the Department:

[REDACTED], District Representative

April 27, 2022 For the Parent:

[REDACTED], Advocate For the Department:

[REDACTED], District Representative

On December 23, 2021, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of [REDACTED] [REDACTED], after the appointment of another hearing officer was rescinded. [REDACTED]’s parent (“Parent”) requested the hearing on July 23, 2021, challenging the Department of Education’s failure to offer [REDACTED] a free appropriate public education for the 2020-2021 school year and seeking compensatory SETSS hours for [REDACTED]. Parent’s Ex. A at 1-3.

A pre-hearing conference was conducted on January 7, 2022. The hearing was conducted on March 7 and April 27, 2022. The DOE did not present the testimony of any witnesses nor offer any documents in evidence. Tr. 5, 28, 34. Parent clarified that the relief sought was compensatory education in the form of: 16 periods of SETSS provided in [REDACTED] for the time from September through part of October 2020 (four periods per week for four weeks), when [REDACTED] did not receive any SETSS, and 88 periods of SETSS for the time from January through June 2021, for which time period the CSE had increased [REDACTED]’s SETSS to eight periods per week but [REDACTED] received only four periods per week, with all services to be provided at the “market rate.” Tr. 28-31. The Department did not contest that [REDACTED] should have received SETTS as per the relevant IESPs in place for the 2020-2021 school year, computed as per a 36 week 10-month school year. Tr. 41-42.

Extensions of the compliance date were requested by the parties and granted by written Orders of Extension dated January 7 and March 7 (60-day extension), 2022.

The record closed on May 2, 2022, upon the Hearing Officer’s receipt of the transcript of the final day of the hearing, and the Actual Record Close Date is May 2, 2022.

Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

Findings of Fact

• • [REDACTED] is a REDACTED-year-old boy whose disability, for the purposes of the IDEA, is speech and language impairment. Parent’s Exs. A at 1, B at 1, Ex. C at 1.
• • [REDACTED] attends mainstream classes at a private religious school, [REDACTED], in [REDACTED]. Ex. A at 1.
• • [REDACTED] struggles with academics, comprehension, receptive and expressive language skills, attention, fine motor skills, and social skills. Ex. B at 1-3.
• • On September 12, 2019, the CSE convened an IESP meeting for [REDACTED]. Parent participated in this meeting. Ex. B at 1, 8.
• • The CSE recommended that [REDACTED] receive SETSS for four periods per week as a group service in [REDACTED] and related services. Ex. B at 7.
• • The CSE convened another IESP meeting for [REDACTED] on January 5, 2021, to develop an IESP for [REDACTED]. Ex. B at 1.
• • The CSE recommended that [REDACTED] receive eight periods per week of SETSS services as a group service in [REDACTED] and related services. Ex. C at 10.
• • The January 5, 2021 IESP has an implementation date of January 19, 2021. Ex. C at 1.
• • There is no dispute that [REDACTED] should have received SETTS as per the relevant IESPs for the 2020-2021 school year. Tr. 41-42; see also Ex. E.

Decision

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education (“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) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982).

The IDEA mandates that each state receiving federal special education funds must provide each student with a qualifying disability a FAPE. 20 U.S.C. § 1412(a)(1)(A). FAPE is provided when a school district (1) has complied with the procedural requirements of the IDEA; and (2) the IEP developed by the CSE is reasonably calculated to enable the student to make progress given the student’s individual circumstances. Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v).

Under New York State Education Law § 3602-c, parents of students with disabilities have the right and ability to select a nonpublic school willing to enroll their child, and places the burden of developing and providing appropriate special education programming upon the school district in which such school is located. The school district must develop an appropriate program for the student in the environment in which the student will receive his or her education (i.e. – the nonpublic school). Section 3602-c expressly states that a school district of location’s CSE “shall develop an [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an [IEP].” Education Law § 3602-c(2)(b)(1). “The committee on special education shall assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.” Id. See, e.g., Application of a Student with a Disability, Appeal No. 21-245 at pp. 10-18 (description of districts’ responsibilities under § 3602-c and interplay with IDEA); see also, e.g., Application of a Student with a Disability, Office of State Review No. 20-094; Application of a Student with a Disability, Office of State Review No. 20-087. As a result, he[REDACTED]ng officers are placed in the position of attempting to reconcile federal statutory and decisional law and Section 3602-c of the New York Education Law. See, e.g., Application of a Student with a Disability, Office of State Review No. 20-094 at pp. 7-8 & n.6, 10-12, 26.

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i); 8 NYCRR 200.5(j)(4).

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

It is undisputed in this proceeding that the DOE did not provide [REDACTED] with his IESPs’ mandated full complement of SETSS during the 2020-2021 school year. The parties do not dispute that the September 2019 IESP was in place through January 2021 and that January 2021 IESP was in place for the remainder of the 2020-2021 school year. The parties also do not dispute that the DOE failed to provide, and should have provided, 16 periods of SETSS to [REDACTED] during September and part of October 2020, and that that DOE failed to provide, and should have provided, the additional four periods of SETSS per week from January 19 through the end of the 2020-2021 school year. Since the DOE was required by Education Law § 3602-c to provide those services, the DOE should be required, at this time, to provide funding for services to “make up for” the services it was required to provide to [REDACTED].

The DOE asks that services, if awarded, should be for the 36 weeks that are in a 10-month school year in public schools in New York City. Even though a private school may have more weeks in its school calendar, 3602-c relates to “equitable” services—as in services equitably-related to services received by students attending public schools. As a result, the DOE should be required to provide compensatory services for the 16 sessions from September-October and for the approximately 20 weeks from mid-January through the end of the school year, totaling 96 periods of SETSS.

Given the testimony and the documentary evidence in the record, as well as the arguments presented by the parties, I will exercise my equitable authority and order services as described in the order below.

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

1. The Department of Education shall fund compensatory services for [REDACTED] in the form of a bank of SETSS periods in [REDACTED]. The total number of SETSS hours for which the Department is responsible for funding shall not exceed 96 periods.

2. The Department of Education shall pay a reasonable market rate, as determined by the DOE’s Implementation Unit, for the aforementioned SETSS; and, in any event, that rate shall not exceed the rates that the selected provider has charged for SETSS delivered to students in New York City during the 2021-2022 school year.

3. Any periods of SETSS not utilized by [REDACTED] before November 4, 2023, shall expire and shall not be funded.

Dated: May 3, 2022

______________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT’S DISCLOSURE

Letter

Date

Name of Document

Number of Pages

A

6/22/2021

DPC

5

B

9/12/2019

IESP

10

C

1/5/2021

IESP

13

E

1/15/2021

Pendency Form

2