New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 555439 - NYC: 211504

FINDINGS OF FACT AND DECISION

Case Number: 211504

Student’s Name: [REDACTED] [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: June 23, 2022

July 1, 2022

Actual Record Close Date: July 12, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

June 23, 2022 For the Parent:

[REDACTED] [REDACTED], Parent For the Department:

None

July 1, 2022 For the Parent:

[REDACTED] [REDACTED], Parent For the Department:

[REDACTED] [REDACTED], District Representative

On June 15, 2022, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(j), in the matter of [REDACTED] [REDACTED], after the appointment of another hearing officer was rescinded. [REDACTED]’s parent requested the hearing on August 6, 2021 in order to challenge the Department of Education’s failure to offer [REDACTED] a free appropriate public education for the 2021-2022 school year and to seek the provision of SETSS for [REDACTED]. IHO Ex. I.

A pre-hearing conference was conducted on June 23, 2022. The Department did not appear at the prehearing conference. At the pre-hearing conference, [REDACTED]’s mother explained that after she filed her hearing request in August 2021, in which she requested pendency for [REDACTED], she was not contacted by the Department nor did the Department institute pendency services for [REDACTED] nor otherwise contact her about pendency or the hearing. Tr. 3, 5-6, 14-15, 29.

Upon my appointment as impartial hearing officer, this case was substantially out of compliance with respect to the decision date. At the prehearing conference, Parent requested extensions of the compliance date such that the case would be in compliance with respect to the decision date. As a result, I entered four successive Written Orders of Extension dated June 23, 2022 to extend the compliance date to July 28, 2022. As of the date of this decision, the New York City Impartial Hearing Office has not entered any of these ordered extensions of the compliance date into the New York State Education Department’s Impartial Hearing Reporting System.

The hearing was conducted on July 1, 2022. The Department did not present the testimony of any witnesses or offer any documents in evidence, electing not to present a case. Tr. 37.

The record closed on July 12, 2022, upon the hearing officer’s receipt and review of the transcript of the proceedings, and the Actual Record Close Date is July 12, 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 young woman whose disability, for the purposes of the IDEA, is classified as speech or language impairment. Exs. II at1, III at 1.
• • During the 2021-2022 school year, she attended [REDACTED] grade mainstream classes at [REDACTED], a non-public religious school in New York City. Exs. I, II, III; Tr. 6-7.
• • [REDACTED] experiences challenges with following verbal and written directions, vocabulary, writing paragraphs and essays, understanding math concepts, math application skills, and attention and focusing. Exs. III at 1-2, II at 2-3.
• • On June 24, 2020, the CSE convened a meeting and developed an Individualized Education Services Program (“IESP”) for [REDACTED] for the 2020-2021 school year. Ex. III.
• • The CSE recommended that [REDACTED] receive five periods per week of SETSS and speech-language therapy (one 30-minute period per week individually and one 30-minute session per week in a group). Ex. III at 5; Tr. 9.
• • On April 28, 2021, the CSE convened a meeting and developed an IESP for [REDACTED] for the 2021-2022 school year. Ex. II.
• • The CSE recommended that [REDACTED] continue with five periods per week of SETSS but only through June 18, 2021, the end of the 2020-2021 school year. Ex. II at 6; Tr. 42..
• • For the 2021-2022 school year, the CSE recommended that [REDACTED] continue with speech-language therapy (one 30-minute period per week individually and one 30-minute session per week in a group). Ex. II at 6.
• • [REDACTED] continued to receive speech therapy after school during the 2021-2022 school year pursuant to the April 28, 2021 IESP. Tr. 7-9, 43.
• • During the 2021-2022 school year, [REDACTED] experienced difficulties in school without SETSS. Tr. 9-10, 43-45. The speech therapist working with her was able to provide her some tutoring assistance with academic skills and her classroom teachers modified some instruction for her, but these supports were not sufficient to replace the SETSS. Tr. 10, 45.
• • The Department did not provide [REDACTED] with any SETSS services pursuant to pendency. Tr.
• • Even though [REDACTED]’s mother requested a pendency order, a pendency hearing was not conducted and a pendency order was not issued. Ex. A; Tr. 6-7.

Decision

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education 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 first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).

A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s 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).

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.

Furthermore, students with disabilities whose parents have filed impartial hearings to challenge an action of a school district are entitled to “pendency.” The pendency provisions of the IDEA and the New York State Education Law require that a child remain in his or her then current placement, unless the child’s parents and the school district otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the child. 20 U.S.C. §1415; N.Y. Educ. Law §4404(4). The inquiry focuses on identifying the child’s then current educational placement at the moment when the impartial hearing was requested. See Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982); Arlington Central School District v. L.P., 421 F. Supp. 2d 692, 696 (S.D.N.Y. 2006); Application of a Child with a Disability, Appeal No. 07-063. The phrase “then current placement” is not defined by statute; however, it has been found to mean the last agreed upon placement at the moment when the parent requested the hearing. Murphy v. Arlington Central School District, 86 F. Supp. 2d 354, 359 (S.D.N.Y. 2000), aff’d 297 F.3d 195 (2d Cir. 2002). In most cases, the pendency placement will be the student’s last unchallenged IEP.

I must also consider that [REDACTED] is a “dually-enrolled” student, and, 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 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. See also Bd. of Educ. of the Bayshore Union Free Sch. Dist. v. Thomas K., 14 N.Y. 3d 289 (2010) (relevance of individualized educational needs of dually-enrolled students).

[REDACTED]’s mother prevails in this proceeding, and [REDACTED] is entitled to receive 180 periods of SETTS (one period per school day for the 10-month 2020-2022 school year), for two separate and independent reasons: (1) the Department did not meet its burden of demonstrating that the May 2021 IESP’s program, without SETSS for [REDACTED], was appropriate for her; and (2) the Department did not fulfill is duties under pendency during this very delayed proceeding for the 2021-2022 school year and should be required to do so now.

First, the DOE did not present testimony with respect to its provision of FAPE to [REDACTED] for the 2021-2022 school year. A school district must “be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F., 137 S. Ct. at 1002. This did not happen in this case. Since the Department did not offer any testimony to explain how its IEP for [REDACTED] was “reasonably calculated” to permit her to make progress given her unique circumstances, the Department did not carry its burden of proof to demonstrate that it offered [REDACTED] a FAPE.

The uncontroverted evidence in the record indicates that [REDACTED] struggled during the 2021-2022 school year without support from a SETSS teacher, despite the efforts of the speech therapist and her classroom teachers. As a result, I find that [REDACTED] is entitled to compensatory services, as described below, for the deprivation of SETSS during the 2021-2022 school year.

Second, once [REDACTED]’s mother filed her hearing request, [REDACTED]’s automatic entitlement to the services set forth on the prior year’s IEP was activated. The Department should have provided SETSS to [REDACTED] while this case was pending. Furthermore, not only did the Department fail to implement [REDACTED]’s pendency entitlement, the Department also failed in its duties to provide a timely hearing for [REDACTED]—by, among other things, failing to appoint me as a replacement hearing officer until June 15 and failing to appear at the June 23 prehearing conference—resulting in a hearing date after the conclusion of the school year. I exercise my equitable authority to order the Department to provide [REDACTED]’s pendency entitlements in the form of compensatory education, as described below. It would be inequitable not to do so.

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

1. The Department of Education shall fund for [REDACTED] a bank of compensatory services consisting of 180 periods of SETSS as follows:

a. Parent may select the providers, who must be appropriately certified to provide SETSS. b. The Department shall issue an authorization for funding for 180 periods of SETSS. In the event that [REDACTED]’s mother is unable to locate a provider willing to accept the Department’s SETSS authorization, the Department shall pay a reasonable market rate for the services, as determined by the Department’s Implementation Unit; 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 2022-2023 school year.

2. The bank of hours shall expire on July 17, 2024, and any SETSS periods remaining at that time will be lost.

Dated: July 17, 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

IHO Exhibits

I Due Process Complaint August 6, 2021 1 page

II IESP April 28, 2021 9 pages

III IESP June 24, 2020 7 pages