New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 558785 - NYC: 214787

FINDINGS OF FACT AND DECISION

Case Number: 214787

Student’s Name: REDACTED

(hereinafter known as “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: REDACTED

(hereinafter known as “Parent”)

Dates of Hearing March 15, 2022

March 21, 2022

Actual Record Closed Date: March 25, 2022

Hearing Officer: Rachel Gibbons, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 15, 2022

For the Student:

REDACTED Attorney (via videoconference platform)

For the NYC Department of Education:

REDACTED District Representative (via videoconference platform)

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2022

For the Student:

REDACTED Attorney (via videoconference platform)

Parent Parent (via videoconference platform)

For the NYC Department of Education:

REDACTED District Representative (via videoconference platform)

INTRODUCTION AND PROCEDURAL BACKGROUND

This proceeding was brought in accordance with the Individuals with Disabilities Education Act (“IDEA”), the New York State Education Law Article 89 and §3602-c by the Parent of the Student, a REDACTED-year-old child with a disability. On September 5, 2021 the Parent filed a Due Process Complaint (“Complaint”) against the New York City Department of Education (“District” or “DOE”) which alleged, inter alia, that the District failed to provide the Student with a free appropriate public education (“FAPE”). This Hearing Officer (“IHO”) was appointed to this matter on January 19, 2022 following the rescindment of the prior IHO.

A prehearing conference was held on January 27, 2022 and a status conference on March 3, 2022. A due process hearing was held on March 15, 2022 and continued on March 21, 2022. The DOE submitted five exhibits and the Parent submitted eight exhibits. All were entered into evidence. The DOE presented no witnesses. The Parent testified at hearing. The record was closed on March 24, 2022 and the final date of compliance is April 4, 2022.

ISSUES PRESENTED

• • Whether the District provided the Student with a free appropriate public education (“FAPE”) for the 2021-2022 school year.
• • Whether the Parents’ unilaterally obtained educational program is appropriate.
• • Whether there are any equitable considerations that would reduce the amount of any order for District reimbursement or payment for special education teacher support services or related services.

APPLICABLE STANDARDS

IDEA Generally The IDEA (20 U.S.C. §§1400-1482) was enacted primarily (1) to ensure that students with disabilities have available to them a free appropriate public education which is designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to protect the rights of students with disabilities and the parents of such students. (20 U.S.C. § 1400(d)(1)(A)-(B); see generally, Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982)). A FAPE consists of special education and related services designed to meet a student’s unique needs which are provided in conformity with a written individualized education program. (See 20 U.S.C. § 1401(9)). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits or the IEP is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” (See Rowley, at 192 and Endrew F. ex rel. Student F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017)). In Endrew F., the Supreme Court recently clarified the substantive standard for determining whether a child’s IEP offered a FAPE. 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.” Id. at 1001. The Court emphasized the text of the IDEA itself and stated:

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” though an “[i]ndividualized education program” §§1401(29), (14) (emphasis added). An IEP is not a form document. It is constructed only after careful consideration of the child’s present level of achievement, disability and potential for growth. (Endrew F. at 999).

The Court continued “[A child’s] IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” (Endrew F. at 1000).

An appropriate IEP must include: (a) a statement of the child’s present level of academic achievement and functional performance and how the child’s disability affects the child’s involvement and progress in the general education curriculum; (b) a statement of measurable annual academic and functional goals; (c) how a child’s progress towards those goals will be measured; (d) a statement of the special education and related services to be provided to the child; (e) an explanation of the extent to which the child will participate with nondisabled students in school; and (f) the projected date for the start of services and the duration. (34 CFR § 300.320(a); 8 NYCRR 200.4(d)(2)). An IEP must be developed collaboratively, by a team that includes the child’s parents, specific teachers, a school district representative and someone who can interpret evaluations. (34 CFR § 300.321, Educ. Law §4402(a)). The “core of the statute... is the cooperative process that [IDEA] establishes between parents and schools.” (Schaffer v. Weast, 546 U.S. 49, 53 (2005)). The Second Circuit has stated that a district “must produce, in writing, an [IEP] that ‘describes the specially designed instruction and services that will enable the child to meet’ stated educational objectives and is reasonably calculated to give educational benefits to the child.” (M.W. ex rel S.W. v. NYC Dept. of Educ., 775 F.3d 131, 135 (2d Cir. 2013) (Quoting R.E. v. NYC Dept. of Ed., 694 F.3d 167 (2d Cir. 2012)).

“The importance Congress attached to the procedural safeguards [in IDEA] cannot be gainsaid.” (See R.E. at 189-190). A procedural violation of the IDEA entitles a parent to relief only if it: “(I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” (20 U.S.C. § 1415(f)(3)(E)(ii); see P. v. West Hartford Bd of Educ., 885 F.3d 735, 748-749 (2d Cir. 2018); citing A.M. v. N.Y. City Dep't of Educ., 845 F.3d 523, 535 (2d Cir. 2017). “Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” (See R.E., 694 F.3d at 190.

It is important to note that school districts are not required to "maximize" the potential of students with disabilities. (Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003)). The IDEA ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)). In addition, a child with a disability is entitled to a FAPE in the least restrictive environment (“LRE”). (20 U.S.C. §1401(9) and 34 CFR §300.17. See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998)).

Burden of Proof 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.^[1] If the evidence is evenly balanced, the party with the burden of persuasion must lose. ^[2]

Dual Enrollment Under §3602-c

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. State guidance reflects that under §3602-c a students are entitled to receive special education services according to an Individualized Education Services Program (“IESP”) while they receive general education from the nonpublic school where their parents enrolled them.^[3] The State guidance defines the term “equitable basis” as provided “in the same manner,” “based on need” and selected from “the same range of services provided by the district to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program.”^[4] 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.

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. (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).

Tuition Reimbursement In Burlington School Comm v. Dept of Education, 471 U.S. 359 (1985), the Court determined that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. In cases where the relief sought is tuition reimbursement, the applicable three-prong analysis is contained in Burlington and its progeny. (See Florence County School Dist. Four v. Carter, 510 U.S. 7 (1993)). 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.

• • FINDINGS OF FACT
• • The Student is seven years old, in the second grade and is currently homeschooled. (Tr. 60, Par. Ex. A). The Student has an IDEA classification of Other Health Impaired (“OHI”) and has received special education since preschool. (Par. Ex. D p. 1, Ex. C; DOE Ex. 1 p. 1). The Student has a medical diagnosis of REDACTED (Tr. 46; Par. Ex. D p. 2; DOE Ex. A p. 2). He has REDACTED condition. (Tr. 46; DOE Ex. 1 p. 3). The Parent testified that REDACTED is linked to learning and/or speech impairments and disabilities. (Tr. 46). The Student struggles with, inter alia, reading, writing, retention, memory retrieval, and math. (Tr. 43-44).
• • The last agreed upon CSE program was an IEP dated July, 27, 2018. (Par. Ex. C). This IEP recommended special education itinerant teacher services (“SEIT”) 10 hours per week; SLT, individual service, two 30-minute sessions weekly; OT individual service, two 30-minute sessions weekly; and PT, individual service, two 30-minute sessions weekly. (Par. Ex. C). The DOE next developed an individualized education services program (“IESP”) dated April 15, 2019. (Par. Ex. D). This IESP recommended a reduced number of SETSS hours, in a group. (Id. p. 5). The related services remained the same. (Id.). On December 19, 2019 the DOE developed another IESP. (DOE Ex. 1). The December 2019 IESP added an additional session of SLT, with group service. (DOE Ex. 1 p. 7). The Parent objected to both 2019 IESPs, due to the decreased number of SETSS hours. (Par. Ex. A).
• • The District has not convened an IEP meeting for the Student since December 2019. The Parent testified that the last CSE meeting was in December 2019. (Tr. 68-69). The SESIS log submitted by the District confirms that the last IEP/IESP developed for the Student was in December, 2019. (DOE Ex. 2 pp. 1-3).
• • The Student attended a private parochial school for the 2019-2020 school year. (Tr. 59-63). When Covid hit in March 2020 the Student attended his school via Zoom. (Tr. 60). The Parent first began to homeschool in September 2020. (Tr. 63). The Parent submitted documents to New York State concerning home schooling for the last school year, 2020-2021, and the current 2021-2022 school year. (Tr. 66). The Parent testified that she notified the District that the Student was being homeschooled. (Tr. 61). She noted that her older child is also homeschooled and has an IEP “with the homeschool lady in charge.” (Tr. 61). The Parent asked her “where is [the Student’s] IEP?” and was informed that they were “very behind.” (Id.)
• • The District did not provide a SETSS teacher for the Student for the 2021-2022 school year. (Tr. 49-50). The Parent was unable to secure a SETSS provider and hired REDACTED (“Agency”). (Tr. 50). An affidavit of services dated March 4, 2022 was submitted into evidence and reflects that the Agency had provided and would continue to provide for the 2021-2022 school year, ten hours of weekly SETSS services at the rate of $180.00 per hour. (Par. Ex. E). The Parent submitted a document which appears to be from the NYSED TEACH system that indicates that the Student’s SETSS provider was certified to teach students with disabilities ages birth through second grade. (Par. Ex. F).
• • The Student currently receives OT through the District. (Tr. 69, 85). The SESIS log reflects an entry dated October 30, 2021 for “OT consent” by REDACTED. (DOE Ex. 2 p. 1, see also Ex. 5 p. 1). The Parent testified at hearing that he was the Student’s OT provider. (Tr. 69, 87-88). The Parent testified that she tried to call the District to get SLT for the Student. (Tr. 86). The Parent then obtained SLT and PT from REDACTED.^[5] (Tr. 92-93).

ANALYSIS AND DECISION

Homeschooling

At hearing, the District Representative requested a dismissal because the DOE had received “no paperwork or any documentation” to show that the Student was being homeschooled. (Tr. 68). He also argued that the District is obligated to provide SETSS or related services only at an “in-program” placement, not in a homeschool setting. The services are not “mandatory.” (Tr. 67-68, 77). When this IHO declined to dismiss this matter, the District asked for a “remand” to the CSE “given that the child is homeschooled.” (Tr. 70, 96). He argued that the IEP team “needs to take into account the parent’s decision to homeschool the child when developing an IEP.”

This IHO declined to simply “remand” this matter to the CSE. This IHO notes that the District had not convened an IEP meeting for the Student since December 2019. (See supra Findings of Fact ¶ 2). At the time the December 2019 IESP was developed, the Student was enrolled at a parochial where he remained for the rest of the school year. (See supra Findings ¶ 4). The District knew that the Student is homeschooled - they provided his 2021-2022 OT services. (DOE Ex. 2, p. 1; Ex 5 p. 1). The District’s student information form clearly states the Student’s school name and physical location is “REDACTED: Home Schooling.” (DOE Ex. 4 p. 3). At any time after September 2020, when the Student started homeschooling, the District had the could have easily convene an CSE meeting to develop an IEP based upon a homeschooling placement.

The District’s Provision of FAPE The threshold issue in this case is whether or not the District provided or offered a FAPE for this student during for the 2021-2022 school year. The DOE submitted no evidence relevant to the provision of FAPE and presented no witnesses at all. The District has thus failed to satisfy its burden that it provided or offered a FAPE to the Student for the 2021-2022 school year. The Parent has prevailed on Prong I of the Burlington/Carter analysis.

Appropriateness of the unilaterally obtained SETSS services

This Parent also prevails on the question of the appropriateness of the unilaterally obtained SETSS instruction as she submitted testified that the SETSS provider helps the Student with math and reading. (Tr. 44). She testified that he is making progress, although he is not yet at grade level. (Id.) The SETSS provider is a certified special education teacher for the Student’s age group. (Findings, ¶ 5). Although the record contains no progress report, nor a more detailed description, the Parent has sustained her burden of proof that the unilaterally obtained services were appropriate according to a Burlington/Carter analysis. Prong II has been satisfied.

Equitable Considerations The Parent cooperated with the District. She attended both IEP meetings in 2019.^[6] (DOE Ex. 1, p. 10; Par. Ex. D p. 7). She attempted to contact the District regarding obtaining SLT and about the Student’s IEP. (Findings ¶¶ 4-6). The District has provided no evidence to suggest that the Parent has refused to cooperate or otherwise acted in bad faith, thus there are no equitable considerations that would undercut the Parent’s request for relief. The Parents have satisfied Prong III.

Direct Funding The Parent signed an agreement with the Agency that reflects a legal obligation of the Parent to pay for the Agency’s services if the DOE ultimately does not pay. (Par. Ex. G). The Parent requests relief in the form of direct payment by the DOE to the Agency for SETSS for the 2021-2022 school year. After a full Burlington/Carter analysis is satisfied, a district may be required to pay a private placement or service provider directly. In some cases, an IHO, SRO or court may order a school district to directly pay retroactive tuition 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. (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014)). The Parent lacks the financial resources to pay for the services for the Student. (Par. Ex. H).

ORDER

NOW THEREFORE BASED ON THE FOREGOING, it is

ORDERED that the District failed to provide a FAPE to the Student for the 2021-2022 ten-month school year; and it is further;

ORDERED that the District shall directly fund ten hours per week of special education teacher support services (SETSS) for the Student during the ten-month 2021-2022 school year, at a rate not to exceed $180 per hour, to be paid to an independent, qualified service provider of the Parent’s choosing, upon receipt of invoices from the provider with documentation of the dates of service to the Student; and it is further;

ORDERED that the District will provide the Student’s related services as recommended in the July 27, 2018 IEP; and it is further;

ORDERED that that the District shall, within 30 days of the date of this decision, convene an IEP meeting for the Student to develop an IEP or IESP; and it is further;

ORDERED that all relief not specifically granted herein is DENIED.

Dated: April 4, 2022

Rachel Gibbons

Rachel Gibbons, Esq.

Impartial Hearing Officer

DOCUMENTATION ENTERED INTO THE RECORD

DOE

1. IESP, dated 12/19/2019 10

2. SESIS events log, dated 9/05/2019-10/20/2021 7

3. Email, dated 1/27/2022 2

4. SESIS demographic/enrollment/contact pages, undated 3

5. SESIS documents page, 2016-2022 3

PARENT

A. Impartial hearing request, dated 9/05/2021 8

B. Pendency agreement, dated 9/20/2021 2

C. IEP, dated 7/27/2018 19

D. IESP, dated 4/15/2019 8

E. Affidavit of agency providing SETSS, dated 3/04/22 1

F. List of individual provider’s certificates, various dates 1

G. Agreement for special education teacher services, 9/01/21 1

H. Tax form 1099-G unemployment compensation, undated 1

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] See Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993).

[2] Director, Office of Worker’s Compensation Programs v. Greenwich Colliers, 512 U.S. 267, 281 (1994).

[3] (“Chapter 78 of the Laws of 2007 – 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,” Attachment 1, preface, VESID Memo Sept. 2007).

[4] (Id., Attachment 1 p. 11).

[5] The Parent is not seeking DOE reimbursement for these PT and SLT services. (Tr. 94).

[6] The 2018 IEP has no signature page. (Par. Ex. C).