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Special Education Law
DECISIONParent PrevailedIHO Case No. 213027

Impartial Hearing Decision

May 6, 2022·Jean Marie Brescia·Representative

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

NYSED # 557012 / NYC # 213027

FINDINGS OF FACT AND DECISION

Case Number: 213027

Student’s Name: [REDACTED] [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: January 13, 2022

March 7, 2022

April 7, 2022

Actual Record Close Date: April 23, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

January 13, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED] [REDACTED], District Representative

March 7, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

None

April 7, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

On January 4, 2022, 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20 U.S.C. §1415(f), in the matter of [REDACTED] [REDACTED], after the appointment of another hearing officer was rescinded.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 September 2, 2021, challenging the Department of Education’s failure to offer [REDACTED] a free appropriate public education for the 2021-2022 school year and seeking funding for five periods per week of SETSS for [REDACTED] at an “enhanced rate” and continuation of funding for Related Services Authorization letters (“RSAs”) for physical therapy (two 30-minute sessions per week, 1:1) and occupational therapy (two 30-minute sessions per week, 1:1). Parent’s Ex. A at 1-3.

A pre-hearing conference was conducted on January 13, 2022. The hearing was conducted on March 7 and April 7, 2022. The DOE did not present the testimony of any witnesses nor offer any documents in evidence. Tr. 21-22. The Department did not contest that [REDACTED] should have received SETTS as per the relevant IESP in place for the 2021-2022, asserted that this case involved “just a rate issue,” and contended that the $182.00 per hour charged by the agency providing the services to [REDACTED] was “extremely excessive.” Tr. 22, 24, 42. The Department also argued that the maximum number of SETSS sessions to which a student is entitled is 180 sessions because there are 180 days in a 10-month school year. Tr. 25, 43-44.

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 April 23, 2022, upon the Hearing Officer’s receipt and review of the transcript of the final day of the hearing, and the Actual Record Close Date is April 23, 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 girl whose disability, for the purposes of the IDEA, is classified as other health impairment. Parent’s Exs. A at 1, B at 1.
  • • [REDACTED] attends mainstream classes at a private religious school, REDACTED REDACTED, in Brooklyn. Ex. A at 1.
  • • [REDACTED] struggles with academics, comprehension, receptive and expressive language skills, fine motor skills, attention and low frustration tolerance. Exs. B at 2-3, E.
  • • On April 15, 2021, the CSE convened an IESP meeting for [REDACTED]. Parent participated in this meeting. Ex. B at 1, 11; Tr. 37.
  • • The CSE recommended that [REDACTED] receive SETSS for five periods per week as a group service in English, physical therapy (two 30-minute sessions per week, 1:1) and occupational therapy (two 30-minute sessions per week, 1:1). Ex. B at 7.
  • • After the meeting, no one from the Department contacted [REDACTED]’s mother about providing a SETSS provider for [REDACTED]. Tr. 38.
  • • [REDACTED]’s mother also contacted DOE personnel about services for [REDACTED]. Tr. 36.
  • • [REDACTED]’s mother contacted SETSS providers, but the [REDACTED] agency was the only SETSS provider available to work with [REDACTED]. Tr. 33-34.
  • • [REDACTED] is a private agency that provides SETSS to students in the New York City area who attend mainstream classes. Ex. F at ⁋ 9.
  • • In August 2021, [REDACTED]’s mother entered into a contract with [REDACTED] for the agency to provide special education services to [REDACTED]. Under the terms of the contract, [REDACTED]’s parents are responsible for the cost of the services provided by the agency. Ex. C.
  • • [REDACTED] has provided five hours per week of SETSS to [REDACTED] during the 2021-2022 school year. Exs. E at 1, F at ⁋ 23. The services are provided by a certified special education teacher. [REDACTED] pays this teacher $100.00 per hour. Ex. F at ⁋⁋ 25-26.
  • • The SETSS provider has been working with [REDACTED] on decoding using a multi-sensory and phonics-based approach, following instructions, attentional skills, reading comprehension, number skills, basic addition and subtraction, spelling, frustration, attention and focusing. She is making steady progress, Exs. E, F at ⁋⁋ 31-36.
  • • [REDACTED] charges $182.00 per hour for SETSS. According to the educational director of the agency, she has communicated with other similar agencies and asserted that [REDACTED]’s rate was “within the general market rate for these services in the greater New York City area.” Ex. F at ⁋ 14. [REDACTED]’s rate includes the payment of $100.00 per hour paid to the SETSS teacher working with the student, one-on-one supervision of the SETSS teacher by a senior educator, professional development for the SETSS teachers focusing on special education teaching methods and strategies, educational resources and support, educational books and other resources for teachers, professional development and materials, employment taxes, administrative costs and overhead costs. Ex. F at ⁋⁋ 15-20, 26-28.
  • • There is no dispute that [REDACTED] should have received SETTS as per the relevant IESP in placed for the 2021-2022 school year. Tr. 22.

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, hearing 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 her IESPs’ mandated complement of SETSS during the 2020-2021 school year. The parties also do not dispute that the DOE failed to provide, and should have provided, 5 periods of SETSS to [REDACTED]. Since the DOE was required by Education Law § 3602-c to provide those services, and failed to do so, the DOE should be required, at this time, to provide funding for services that [REDACTED]’s parents secured through [REDACTED].

The DOE seems to imply that [REDACTED]’s parent did not execute a diligent search for a SETSS provider. However, [REDACTED]’s parent was not required to undertake such a search because the DOE was responsible for providing a SETSS provider for [REDACTED]. This is what “public” means in the term “FAPE:” the school district provides the service.

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 might 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 36 weeks of services.

I am also called upon to determine whether the DOE should be required to pay an “enhanced rate” for [REDACTED]’s services. The generic and conclusory testimony of the [REDACTED]’s administrator is not helpful to me, and the DOE provided me with no evidence regarding what would constitute an appropriate rate. The record simply does not support an award of a particular rate.

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 five periods per week of SETSS for [REDACTED].for the 2021-2022 10-month, 36-week school year.

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. The Department of Education shall continue to fund for [REDACTED] the RSAs for physical therapy (two 30-minute sessions per week, 1:1) and occupational therapy (two 30-minute sessions per week, 1:1) for the remainder of the 2021-2022 10-month, 36-week school year.

Dated: May 6, 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

Parents’ Disclosure

Letter Document Date Pages

  • • Impartial Hearing Request September 2, 2021 5 pages
  • • IESP April 15, 2021 11 pages
  • • Contract August 30, 2021 3 pages
  • • Teacher Certification Undated 2 page
  • • Progress Report February 17, 2022 6 pages
  • • Affidavit of [REDACTED] [REDACTED] March 31, 2022 4 pages
  • • Affidavit of [REDACTED] [REDACTED] March 31, 2022 2 pages