New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 559367 - NYC: 215371

NEW YORK CITY DEPARTMENT OF EDUCATION

______________________________________________________________________________

STUDENT, a minor, by and through

Parent(s),^[1]

Petitioners,

FINDINGS OF FACT AND DECISION

Case No: 217531

-against-

NEW YORK CITY DOE, REDACTED James Polk, Esq.

Respondent. Hearing Officer

______________________________________________________________________________

INTRODUCTION

This matter comes to the undersigned Hearing Officer on Petitioner’s Notice of Due Process Complaint, filed on or about September 9, 2021 (hereinafter, “Complaint”). PA.^[2] I was appointed on January 21, 2022. It is not known if the Respondent ever filed a response to the Complaint but none was entered into evidence. The parties were not able to reach a resolution. A prehearing conference in this matter was scheduled for, and held on, February 3, 2022. The Prehearing Conference Summary and Order was issued on the same date. IHOI.

The Petitioner’s were represented at this hearing by REDACTED, Esq. and the Respondents were represented by REDACTED. A scheduling order delineating the parties’ discovery and appearance responsibilities was sent on April 28, 2022. IHO II. A hearing was held on June 8, 2022. It was a telephonic hearing. Exhibits were pre-marked and the Petitioner entered into evidence exhibits A-J. The IHO entered into evidence Exhibits I-II and the Respondent chose to enter no exhibits.^[3] Petitioner called three (3) witnesses: The Director of Special Services, The Speech Therapist and the Parent. The Respondent did not call any witnesses. The record was closed on August 25, 2022.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”),^[4] 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200.

ISSUES

The issues to be determined are as follows:

• • Whether the Respondent Denied the Student a Free and Appropriate Public Education from the 2021-22 school year by failing to implement the Student’s IEP by denying an adequate SEITS Provider and related services.

Petitioner is seeking relief in the form of an order that awards the Student five (5) hours of SEITS per week in addition to related services at an enhanced rate for the 2021-22 school year as well as reimbursement for monies already paid for the same services.

FINDINGS OF FACT

After considering all the evidence, as well as the arguments of both counsel, the Findings of Fact are as Follows:

• • The Student’s most recent IEP dated June 15, 2021, in evidence as Exhibit B, awards him with five (5) hours of Special Education Itinerant Teacher Services (SEITS). In addition the Student was awarded Speech and Language Therapy on a 2 to 1 basis 2 times per week for thirty (30) minutes; Occupational Therapy on a 2 to 1 basis 2 times per week for thirty (30) minutes and; Counseling Services on a 2 to 1 basis 2 times per week for thirty (30) minutes.
• • The Speech Therapist for the Child testified and discussed the importance of the SEIT education that the child was receiving. She discussed the Child’s primary diagnosis of Severe Autism Disorder and how the specifics of SEIT services address those needs. She also discussed how the additional services were specifically tailored to address the Child’s needs in relation to all matters of his education and daily life. Specifically speech, daily functioning (such as toileting, appropriate behavior, age development) and how they addressed the needs in the IEP.
• • The Petitioner did call the Director of Special Services of a private educational services program who testified as to the reasonable cost and nature of the services. These services amounted to the cost of one hundred and sixty-five ($165.00) dollars per hour. He further discussed the breakdown of such services and the fact that they were in keeping with the market rate for such services elsewhere.
• • The Parent testified and expressed her concerns about the Child’s overall development while suffering from Severe Autism Spectrum disorder. She also discussed how important the SEIT and related services have been overall improving the Student’s academic and social functioning. She also discussed how she understands the current cost and that should the present hearing be unsuccessful she would be required to pay back all the monies owed.
• • The Respondent did not call any witnesses.
• • The witness who testified offered credible and consistent testimony.

CONCLUSIONS OF LAW AND DISCUSSIONS

Based upon the above Findings of Fact, the arguments of counsel, as well as this Hearing Officer’s own legal research, the Conclusions of Law are as follows:

The Student was Denied a Free and Appropriate Public Education for the 2021-22 School Year Because the Department of Education could not implement his IEP by providing a SEITS and Related Services Provider.

In New York, the Local Educational Agency or Respondent has the burden of proof, persuasion and production on allegations of denial of a free and appropriate public education. N.Y. Educ. Law Art. 89 § 4404(c). Given that no evidence was presented by the Respondent and no evidence presented by the Petitioner was challenged it is easy to conclude that they did not meet that burden.

In determining a Free and Appropriate Education the Supreme Court has determined that an IEP must be (1) formulated in accordance with the procedural requirements of the IDEA; and (2) “reasonably calculated to enable the child to obtain educational benefit. See Bd. Of Educ. v. Rowley, 458 U.S. 176 (1982). This was further clarified to indicate that the IEP must be reasonably calculated to enable the student to make progress appropriate in light of his/her circumstances. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). The Endrew F. decision constituted something of a watershed moment because it served the dual purpose of refocusing the first prong of the Rowley test while requiring simply more than de minimus progress to be shown by the school districts.

The only IEP in evidence in the present case can be found in Petitioner’s Exhibit B. The dispute in the present case is not about the adequacy of this IEP but rather it’s implementation of which there was no real dispute. The Respondent simply does not challenge that they didn’t provide SEITS services as required by the IEP. One can reasonably calculate that absent additional testimony that the Respondent chose not to provide, the current IEP would enable a student to make appropriate progress in light of his or her individual circumstances as required by Endrew F. Id. However, the failure to provide a FAPE lingers in the implementation of its provisions. As stated before there is no dispute as to this fact.

The Unliateral Placement of the Student is Proper and Appropriate and the Parent is Entitled to Payment and/or Reimbursement of SEIT and Related Services for the 2021-22 School Year In situations where a child has been denied a free and appropriate public education, one such remedy is tuition reimbursement when a placement in a private school has become necessary. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985). This analysis extends to the direct payment of SETSS at an enhanced rate when that may cure the violation of FAPE. “Indeed where the equities call for it, direct payment [of services] fits comfortably within the Burlington-Carter framework.” E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014); See also Mr. and Mrs. A. v New York City Dep’t of Educ., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); Application of a Student with a Disability, Appeal No. 20-122. In determining whether to grant tuition reimbursement, a hearing officer must therefore apply the same multi-prong Burlington-Carter test.

First, it is necessary to consider whether a free and appropriate education was made available in the first place. Burlington, Id. at 369. This is done by determining the appropriateness of the IEP by applying the Rowley/Endrew F. test and then determining the Public School’s actions in light of the IEP (or IESP). A lengthy analysis is available earlier in this decision and brevity dictates that repetition is not necessary. Suffice it to say that the Petitioner’s claim for direct payment of services satisfies this first prong.

Next, it must be determined if the direct payment for services is “appropriate” and/or “proper”. See Burlington, Id. at 369; and Carter, Id. at 15. To establish this the Parent must, “demonstrate that the placement [or services] provides educational instruction specifically designed to meet the unique needs of a [special needs]^[5] child, supported by such services as are necessary to permit the child to benefit from instruction.” (emphasis added) Frank G. v. Bd. Of Educ., 459 F.3d 356, 365 (2d Cir. 2006); See also Gagliardo v. Arlington, 489 F.3d 105 (2d. Cir. 2007). Thus, we must determine if the services in dispute are providing the proper educational instruction for the Student in the present case.

During the hearing, the Speech Therapist discussed the types of services that are provided. She discussed the type that the student is receiving and the type that he will continue to receive should he be able to continue. These appear to be the types of services that the Department of Education was required to provide in the Student’s IEP. These are factors utilized to determine the appropriateness of a unilateral placement in IDEA cases. See B.R. v. NYC Dep’t of Educ., 910 F. Supp.2d 670 (SDNY 2012). Thus, it seems appropriate to utilize them in determining the appropriateness of direct payment for services. Moreover, this program was unchallenged by the Respondent. It does appear that the program is appropriate to meet the unique needs of the Student and is appropriate under the Carter/Burlington standard.

Finally, it is necessary to balance the equitable factors found in 20 U.S.C. § 1412(a)(10)(C)(iii). Some of these statutory factors are so clearly limited to the placement of a student in a private educational setting that they don’t have clear bearing here but some must be looked at in a SEITS/Direct payment case.

The actions of the Parent are one such consideration and the hearing officer must determine if they were unreasonable. 20 U.S.C. § 1412(a)(10)(C)(iii)(III). There is nothing in the record to establish that the Parent’s were “unreasonable”. The Parent’s testimony indicates that she attended all the IEP meetings, did not fail to make the Student available to all reasonable examinations and did not act in a hostile or uncooperative manner.

There are two additional equitable factors that are not specifically mentioned in 20 U.S.C. § 1412 Id. but must be considered. One of these is whether the cost of the private placement, or in the present case services, is unreasonable. See Carter Id. at 16. The cost of the SEITS services was testified to by the Director of Special Services as being one hundred and sixty-five ($165.00) dollars per hour. This doesn’t seem a particularly onerous amount for a significant service and decisions have been upheld for similar even slightly less amounts so long as sufficient record has been established. Application of a Student with a Disability, Appeal No. 20-122. In addition, the Respondent’s failure to put on a case prejudiced this claim significantly. There is no testimony as to the cost of related programs that could show less-expensive equitable alternatives that could have been provided.

The final equitable factor to be determined is whether there was a lack of parental cooperation with the school district. See Werner v. Clarkstown Cent. Sch. Dist., 363 F.Supp.2d 656 (S.D.N.Y. 2005). Here again the Respondent simply cannot establish this case. It has been stated at many points in this decision and brevity again dictates that it need not be repeated but the parents simply cooperated in the limited manner required in this matter.

It is clear from a full analysis of the Burlington/Carter standard that the Student was denied a free and appropriate education and that the the balance of equities favors the parents. As a result the parent is entitled to direct payment of SETSS for the 2021-22 school year as well as reimbursement of monies already paid if any.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

• • IT IS ORDERED that, the Respondent provide five hours per week of Special Education Itinerant Teacher Services to the STUDENT and the private agency and shall fund such services at an enhanced rate not to exceed One Hundred and Sixty Five ($165.00) dollars per hour for the 2021-22 school year;
• • IT IS FURTHER ORDERED that, the Respondent provide Speech and Language Therapy on a 2 to 1 basis, 2 times per week for thirty (30) minutes at the private agency and shall fund such services at an enhanced rate not to exceed One Hundred and Sixty-Five ($165.00) dollars per hour for the 2021-22 school year;
• • IT IS FURTHER ORDERED that, the Respondent provide Occupational Therapy on a 2 to 1 basis, 2 times per week for thirty (30) minutes at the private agency and shall fund such services at an enhanced rate not to exceed One Hundred and Sixty-Five ($165.00) dollars per hour for the 2021-22 school year;
• • IT IS FURTHER ORDERED that, the Respondent provide Counseling Services on a 2 to 1 basis, 2 times per week for thirty (30) minutes at the private agency and shall fund such services at an enhanced rate not to exceed One Hundred and Sixty-Five ($165.00) dollars per hour for the 2021-22 school year;
• • IT IS FURTHER ORDERED that all services shall be on a 12-month basis^[6].

SO ORDERED

DATED: August 31, 2022

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 of 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 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, and proof of service with the Office of State Review of the State Education Department within two days after the 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] Personally identifiable information is attached as Appendix A to this decision and must be removed prior to public distribution.

[2] Petitioner’s Exhibits will be referred to as “P” followed by the exhibit letter and Respondent Exhibits will be referred to as “R” followed by the exhibit number. When citing any exhibit, the third range represents the page number within the referenced exhibit. Impartial Hearing Officer’s Exhibits will be marked “IHO” followed by the exhibit Roman numeral. When citing any exhibit, the third range represents the page number within the referenced exhibit.

[3] A more detailed list of the admitted exhibits is attached as Appendix B to this decision.

[4] In 2004, Congress reauthorized the Individuals with Disabilities Education Act as the Individuals with Disabilities Education Improvement Act. See Pub. L. No. 108-446, 118 Stat. 2647 (Dec. 3, 2004), effective July 1, 2005. The amendments provide that the short title of the reauthorized and amended provisions remains the Individuals with Disabilities Education Act. See Pub. L. 108-446, § 101, 118 Stat. at 2647; 20 U.S.C. § 1400 (2006) (“This chapter may be cited as the ‘Individuals with Disabilities Education Act.”).

[5] I bracket edited the actual quoted word because the term quoted is no longer favored nomenclature and could be interpreted as derogatory.

[6] Although the extended service was not specifically requested in the original DPC, the relevant IEP did contain offer services on an extended school year. Thus, it would be difficult for the Respondent to argue that they were not on notice as required by C.F.Bd. Of Educ. of the Mamaroneck U.F.S.D. v. A.D., 739 F. App’x 79, 73 IDELR 32 (2d Cir. 2018). Moreover the issue was raised at the conclusion of the hearing and not objected to by the Respondent thus it should be considered an “issue of consent” and thus having been raised in the DPC. See M.C. v. Antelope Valley Union High Sch. Dist., 858 F.3d 1189 (9th Cir. 2017).