NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
SED # 557470 NYC # 213485
FINDINGS OF FACT AND DECISION
Case Number: 213485
Student’s Name: REDACTED
(hereinafter referred to as “Student”)
Date of Birth: REDACTED
District: REDACTED
Hearing Requested by: REDACTED
(hereinafter referred to as “Parent”)
Dates of Hearing October 21, 2022
December 2, 2022
January 10, 2022
February 3, 2022
Actual Record Closed Date: February 15, 2022
Date of Decision February 15, 2022
Date of Compliance: February 24, 2022
Hearing Officer: Rachel Gibbons, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 21, 2022
For the Student:
REDACTED Attorney (Via telephone)
For the NYC Department of Education:
none
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 2, 2022
For the Student:
REDACTED Attorney (Via telephone)
For the NYC Department of Education:
REDACTED District Representative (Via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 10, 2022
For the Student:
REDACTED Attorney (Via videoconference platform)
For the NYC Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 3, 2022
For the Student:
REDACTED Attorney (Via videoconference platform)
For the NYC Department of Education:
None
INTRODUCTION AND PROCEDURAL BACKGROUND
This proceeding was brought in accordance with the New York State Education Law §3602-c and Article 89 by Parent of the Student, an REDACTED-year-old child with a disability. On September 2, 2021 Petitioner filed a Due Process Complaint (“Complaint”) against the New York City Department of Education (“District” or “DOE”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) and New York State Education Law Section 3602-c. This Hearing Officer (“IHO”) was appointed to this matter on September 8, 2021. The resolution period ended on October 2, 2021. A prehearing conference was held on October 18, 2021 and a pendency hearing was held on October 21, 2021, both by telephone conference. A pendency order was issued on October 21, 2021.
A due process hearing was held on December 2, 2021, January 10, 2022 and February 3, 2022. The Parent submitted two exhibits during the pendency hearing on October 18, 2021, three exhibits on December 2, 2022 and one additional exhibit on February 3, 2022. All the exhibits were entered into evidence. The presented one witness: REDACTED, the educational director (“Director”) from the REDACTED (“Agency”). The District presented no witnesses nor evidence at hearing. The record was closed on February 15, 2022 and the date of compliance is February 24, 2022.
ISSUES PRESENTED
Whether the District, during the 2021-2022 school year, failed to provide the Student with special education services on an equitable basis to students enrolled in public schools as required by Educ. Law § 3602(c).
- • Whether the District failed to supply a Special Education Teacher Support Services (“SETSS”) provider for the Student for the 2021-2022 school year.
- • Whether the Parents’ request for direct payment for five periods of SETSS per week for the 2021-2022 school year at an enhanced rate is an appropriate remedy.
FINDINGS OF FACT
The Student, a child who is classified with a learning disability, attends a private parochial school in Brooklyn. (Par. Ex. B; Par. Ex. F p. 3 ¶ 28). The Student’s last Individualized Education Services Program (“IESP”), which is dated June 16, 2020, reflects that the Student has a classification of “Learning Disability” and that she is delayed in the areas of reading comprehension, writing, and math. (Par. Ex. B p. 1). The 2020 IESP recommends SETSS, direct group service in REDACTED, five times per week for one period. (Id. p. 4). The Complaint alleges that the District failed to hold a CSE meeting, develop, or implement an appropriate IESP for the 2021-2022 school year. (Par. Ex. A p. 2). The Complaint contains additional allegations that were not pursued at hearing.[1] The Complaint seeks the following relief: 1. direct funding by the DOE provision of five periods[2] of SETSS by the provider of the Parent’s choice, and 2. reasonable attorney fees. (Par. Ex. A p. 3).
The Director testified via affidavit that she is the educational director at the Agency which currently provides the Student with SETSS. (Par. Ex. F p. 2). The Agency provides special education support to children in the mainstream setting. (Id. p. 1). The Director testified that the Agency charges $182 per hour for 1:1 SETSS and described the Agency’s procedures, training, supervisory duties, professional development for its employees and the materials provided to the students, all of which apparently drive the $182 hourly fee. (Par. Ex. F p. 2). The Agency employs REDACTED who is a New York State certified special education teacher who provided/continues to provide SETSS for the Student during the 2021-2022 school year. (Id.) The Parent submitted Exhibit D which appears to be a page from the NYSED TEACH system that reflects the teaching certifications for REDACTED.
The Parent submitted an “affidavit of services” signed by the CEO of the Agency which states the Agency is providing five hours of SETSS per week for the Student, at a rate of $182 per hour. (Par. Ex. C). The estimated total for the SETSS services for the Student for the 2021-2022 10-month school year will be $36,400, based upon 40 weeks of service. A five-page progress report entitled “Evaluation Performance Rubric” reflects the Student’s academic goals, the educational methodology used and her progress in the common core linked curriculum and skills. (Id.) The report is dated June 14, 2021, however it is unclear how much of the 2020-2021 school year it covers. The Director testified that according to the Fountas and Pinnel assessment system the Student is reading on Level “M, " which is two years below grade level. (Par. Ex. F p. 3). She also described the Student’s reading and math goals and testified that the Student has made progress, but her delays warrant the continued SETSS. (Id. p. 3).
The Parent did not testify at hearing nor submit an affidavit in lieu of direct testimony.
APPLICABLE STANDARDS
Under the provisions of NYS Education Law § 3602-c, students with disabilities who attend nonpublic schools are entitled to receive special education services on an “equitable basis” as compared with students with disabilities who attend public school or are directly enrolled by the school district in a nonpublic school. This “dual-enrollment” statute further provides that a parent may request review of the CSE’s recommendations via impartial hearing and state level review provided under Educ. Law § 4404. The District bears the burden of proof during an impartial hearing, except in a tuition reimbursement case, where the Petitioner bears the burden of proof regarding the appropriateness of a unilateral placement. (Educ. Law §4404(c)(1)). The burden of proof in this matter shall be met upon a fair preponderance of the evidence, which requires that the trier of fact find that the existence of a fact is more probable than its nonexistence.[3] If the evidence is evenly balanced, the party with the burden of persuasion must lose. [4]
The DOE presented no witnesses nor submitted any evidence to demonstrate that it provided SETSS services for the Student during the 2020-2021 school year. It is undisputed that the District neither provided nor offered to provide SETSS for the Student for the 2021-2022 school year. The District thus failed to meet its burden of proof to show that it provided the Student with appropriate special education on an equitable basis for the 2021-2022 school year.
The District does not dispute that it recommended five weekly hours of SETSS group service to the Student for the 2021-2022 ten-month school year. This matter falls in with a line of cases where the DOE’s failure to provide SETSS has motivated parents to seek out private special education teacher services.[5] Over the past few years, the State Review Officers (“SROs”) have made clear that a school district is responsible to directly provide, via a district-employed provider, the special education services it recommends through its IESPs. (See e.g. Application of a Student with a Disability, Appeal No. 20-087).
Most recently, the SROs have determined that the appropriate way to determine the remedy for a denial of equitable special education services under §3602-c followed by the Parent’s subsequent decision to locate a private provider, is to apply the Burlington/Carter analysis which is used to determine tuition reimbursement cases.[6] (See Application of a Student with a Disability, Appeal No. 21-101; Application of a Student with a Disability, Appeal No. 21-068; Application of a Student with a Disability, Appeal No. 21-028). This Parent prevails on the first prong, which hinges on the District’s failure to provide FAPE or special education in an equitable manner. This Parent also prevails on the question of the appropriateness of the unilaterally obtained SETSS instruction, as she submitted a progress report that could support an assertion that the services were individually tailored to the Student’s functional grade levels and were calculated to enable her to progress. (Par. Ex. E).
As for the third prong of Burlington/Carter, which concerns equitable considerations for denying reimbursement, there is no evidence in the Record that the Parent sent a 10-day notice to the District. Reimbursement for a unilateral placement may be reduced or denied if parents do not provide 10-day notice in writing to the district which states their intention to remove their child from a public program, place their child in a private school and seek reimbursement from the school district.
There is no evidence that the Parent has paid for the Agency’s services rendered on behalf of her child, nor is there evidence in the record that demonstrates the Parent’s financial obligation to pay the Agency if the DOE was not instructed to pay. There is no contract or agreement between the Parent and the Agency in the record. In addition, the Parent requests relief in the form of direct payment by the DOE to the Agency for SETSS for 2021-2022 school year. (Par. Ex. A p. 3). Once a full Burlington/Carter analysis has been satisfied, a district may be required to pay a private placement or service provider directly when the parent has signed a contract and is legally obligated to pay the private tuition but is unable to do so due to lack of financial resources. (See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014). The Parent has presented no evidence, such as a tax return, to show that she lacks the financial resources to pay for the services for the Student. Due to the lack of proof of payment, a contractual agreement and her failure to present evidence regarding inability to pay, the Parent’s request for a remedy of direct payment to the Agency for the SETSS hours provided to the Student during the 2021-2022 school year must be therefore be denied.
ORDER
NOW THEREFORE BASED ON THE FOREGOING, it is
ORDERED that the DOE failed to provide appropriate special education services on an equitable basis to the Student for the 2021-2022 school year; and it is further;
ORDERED that the Parent’s request for direct payment to the Agency for SETSS services rendered to the Student during the 2021-2022 school year is denied; and it is further;
ORDERED that all relief not specifically granted in herein DENIED.
Dated: February 15, 2022 s/ Rachel Gibbons
Rachel Gibbons, Esq.
Impartial Hearing Officer
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
Ex. Description Date Pages
A. Due Process Complaint 9/02/21 3
B. IESP 6/16/20 7
C. Affidavit of Services 11/18/21 1
D. Teacher Certification 8/29/19 1
E. Progress Report 6/14/21 5
F. Affidavit of REDACTED 2/01/21 3
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
Footnotes
[1] The additional allegations include: the DOE failed to afford the Parent an opportunity for meaningful participation in the development of an educational program for their child; failed to fully evaluate the Student in all areas of suspected disability; and failed to recognized the Student’s need for an enhanced, comprehensive, clinically supported, individualized, daily, bilingual, special education instructional program. (Par. Ex. A pp. 2-3).
[2] There is apparently a typographical error in the Complaint. Page 2 requests pendency placement consisting of five periods per week and page 3 requests three periods. (Par. A, requests five three weekly periods of SETSS. (Par. Ex. A). The last agreed upon IESP recommends five weekly periods of group SETSS. (Par. Ex. B p. 4).
[3] See Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993).
[4] Director, Office of Worker’s Compensation Programs v. Greenwich Colliers, 512 U.S. 267, 281 (1994).
[5] See e.g. Application of a Student with a Disability, Appeal No. 21-029; Application of a Student with a Disability, Appeal No. 20-141; Application of a Student with a Disability, Appeal No. 20-140; Application of a Student with a Disability, Appeal No. 20-115; Application of a Student with a Disability, Appeal No. 20-099; Application of a Student with a Disability, Appeal No. 20-094; Application of a Student with a Disability, Appeal No. 20-087)
[6] When applying a Burlington/Carter analysis it is necessary to determine if (1) the school district failed to offer and/or provide a FAPE to the Student; (2) the services selected by the Parents were appropriate; and (3) the equitable considerations support the parents’ claim. Burlington School Comm. v. Dept of Education, 471 U.S. 359 (1985); see also Florence County School Dist. Four v. Carter, 510 U.S. 7 (1993)).