New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 560912 - NYC: 216858

FINDINGS OF FACT AND DECISION

Case Number: 216858

Student’s Name:^[1] REDACTED (“STUDENT”)

Date of Birth: REDACTED

School District: New York City Department of Education Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: September 13, 2021

Date(s) of Hearing: July 22, 2022; October 19, 2022; November 15, 2022

Actual Record Closed Date: April 4, 2023

Date of Decision: April 18, 2023

Date of Distribution if Different than Decision Date:

Hearing Officer: Amy Lynne Itzla, Esq.

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

For the Student:

REDACTED, Esq., Attorney

For the Department of Education:

No appearance

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on the Parent’s Due Process Complaint (“DPC") filed on or about September 13, 2021. (Parent Exhibit A)^[2] The undersigned IHO was appointed to this matter on February 7, 2022, by the New York City Department of Education (“DOE”).

A hearing was held on July 22, 2022, October 19, 2022, and November 15, 2022. It was a closed hearing, conducted by video/teleconference, with the presence of a court reporter to create a written transcript. The Parent was represented by REDACTED, Esq. The DOE did not appear for the hearing. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision. The record was closed on April 4, 2023.

In scheduling the hearing date, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

JURISDICTION

The due process hearing was held and the Findings of Fact and Decision in this matter is being issued pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 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 § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

STUDENT was REDACTED years old at the beginning of the 2021-2022 school year. She had previously been identified by the DOE, through its Committee on Special Education (“CSE”), as a student with a disability and was classified with a Speech or Language Impairment. The CSE convened on February 24, 2021, to develop an Individualized Education Program (“IEP”) for STUDENT for the 2021-2022 school year. The CSE recommended a program of an Integrated Co-Teaching class (“ICT”) for the core subject areas, as follows: ELA, in English, 10 periods per week; ICT for Math, in Yiddish, 5 periods per week; ICT for Social Studies, in Yiddish, 5 periods per week; and, ICT for Sciences, in Yiddish, 5 periods per week. In addition, the CSE recommended the related services of: Speech-Language Therapy, individually, in Yiddish, 2 times per week for 30-minute sessions; Speech-Language Therapy, in a group of up to 3, in Yiddish, 2 times per week for 30-minute sessions; Occupational Therapy, individually, in English, 1 time per week for a 60-minute session; and, Occupational Therapy, individually, in English, 1 time per week for a 30-minute session. (Parent Exhibit D)

By letter dated September 13, 2021, the Parent informed the DOE that she had been unable to locate a bilingual Yiddish ICT program within the public school system and, therefore, was rejecting the CSE recommendation and school placement. (Parent Exhibit C) The Parent notified the DOE that there was no alternative but to place STUDENT at PRIVATE SCHOOL, and to provide STUDENT with her special education program and services at that school.

For the 2021-2022 school year, STUDENT was parentally placed at PRIVATE SCHOOL, a private religious school. The Parent provided a program of Special Education Teacher Support Services (“SETSS”), speech-language therapy, and occupational therapy to STUDENT, based on the last agreed upon program provided to STUDENT. The Parent’s position is that the DOE failed to offer a FAPE to STUDENT for the 2021-2022 school year, that the special education program provided by the Parent to STUDENT was appropriate, and that the equities favor the Parent. The Parent is seeking direct funding from the DOE for the services provided during the 2021-2022 school year.

INTERIM ORDER

The first day of hearing, July 22, 2022, was designated to address the Parent’s request for pendency during the course of the impartial hearing process. The DOE had no objection to the Parent’s request and an Interim Order was issued. The following was contained therein:

While this matter is pending, the Parent is seeking an interim order on the program for STUDENT for the 2021-2022 school year. The DOE does not object to the Parent’s pendency request. The Individualized Education Program (“IEP”), dated October 29, 2014, constitutes the last agreed upon placement and program for STUDENT (Exhibit B) The parties have agreed that the Special Education Itinerant Teacher services (“SEIT services”) provided in the IEP should be modified to Special Education Teacher Support Services (“SETSS”) based on STUDENT’s age.

ORDER

The Parent’s request for pendency pursuant to the IEP, dated October 29, 2014, is granted. The DOE shall provide the following to STUDENT for the 2021-2022 school year:

1. Special Education Teacher Support Services (“SETSS”) in a group, 3:1, of 30 sessions per week for 30-minute sessions, in Yiddish;

2. Individual Speech and Language Therapy three times per week for 30-minute sessions, in Yiddish; and,

3. Individual Occupational Therapy two times per week for 30- minute sessions, in English.

This order is retroactive to September 13, 2021, the date on which the Parent requested the impartial hearing and will continue in effect for the 2021-2022 school year through the date this case is concluded either by a hearing officer’s decision or settlement agreement.

POSITIONS OF THE PARTIES

THE DOE’S CASE The following is noted for a complete background of the DOE’s participation, or lack thereof, in this matter. A status conference was scheduled for September 15, 2022, during which both parties’ representatives and the undersigned IHO agreed to proceed with the substantive hearing on October 19, 2022, at 10:30 am. The same DOE representative who had agreed to the date, over a month prior to it, sent the following email on the hearing date, October 19, 2022, at 8:55 am:

Good morning IHO,

We have this student on our calendar and I am unsure if anyone else was assigned to this case, but I have a scheduling conflict at this time.

In response, the undersigned IHO sent an email, at 9:04 am, stating that:

Today’s hearing was scheduled on 9/15/22 during a status conference. The date was agreed upon by you and REDACTED. There were several emails last week regarding today’s hearing, which you received. I will forward them to you again, so you can re-read them and be aware of the conversation.

The hearing will proceed as scheduled and any requests from the parties will be addressed at that time.

The DOE failed to appear for the scheduled hearing on October 19, 2022, at 10:30 am. As a courtesy, and to avoid any future failures by the DOE to appear, the undersigned IHO sent an email to the DOE’s representative on October 19, 2022, at 10:50 am, stating:

This matter proceeded today with an appearance by REDACTED for the parent and no appearance for the DOE. REDACTED explained the circumstances of the parent’s inability to proceed with the hearing today, as scheduled. I granted the parent’s request to schedule another date for the hearing. A hearing has been scheduled for 11/15/22 at 10:00 a.m.

A hearing notice will be issued to the parties by the hearing office and a transcript with the above information will also be received by the parties. The purpose of this email is to establish that the there has been immediate notification of the scheduled hearing date.

[Emphasis added] In addition to the immediate and direct correspondence by the undersigned IHO regarding the scheduling of the November 15, 2022, hearing date, the transcript from the October 19, 2022, hearing, reflecting the scheduling of the November 15, 2022, hearing date, was emailed to the parties on October 31, 2022, by the DOE’s Impartial Hearing Office. The DOE’s Impartial Hearing Office also sent a hearing notice by email to the parties on November 10, 2022, at 3:40 pm, which indicated the hearing scheduled for November 15, 2022, at 10:00 am. There was no communication from the DOE to the undersigned IHO in response to the above-referenced notifications or with regard to this case between October 19, 2022, and November 15, 2022.

The DOE failed to appear for the impartial hearing scheduled for November 15, 2022, at 10:00 am. At 10:10 am, as a courtesy, prior to proceeding, the undersigned IHO emailed the DOE representative, informing him that:

REDACTED and I are waiting for you for the hearing scheduled for 10:00 am this morning. Please join immediately, since we will proceed shortly.

The DOE did not appear, did not respond to the email at any time or otherwise address the failure to appear, and there was no communication of any kind regarding this matter.

The DOE did not participate in this impartial hearing.

THE PARENT’S CASE The Parent presented the testimony of two witnesses: REDACTED, Owner and Educational Director, REDACTED (“AGENCY”); and REDACTED, STUDENT’s mother.

REDACTED provided her direct testimony through a sworn affidavit, which is fully considered part of this decision although not included in its entirety. (Parent Exhibit F). She described her role as the Educational Director of AGENCY: “I screen, hire and contract with our special education teachers, related services providers, supervisors, consultants and trainers. I also research the latest techniques for teaching children and make sure that we have the supplies needed to meet our students’ needs. I communicate with the parents to better understand their child’s learning needs.” REDACTED stated that she works closely with the supervisory team and visits the schools where services are provided to collaborate with the providers and school personnel.

REDACTED testified that Agency provided services to STUDENT during the 2021-2022 school year. She received the individual services in her school. STUDENT received 15 hours of special education services, speech-language therapy 3 times a week for 30-minute sessions, and occupational therapy 2 times per week for 30-minute sessions. The provider of the special education services was certified by New York State to teach students with disabilities and is a bilingual Yiddish provider. The speech-language provider was a New York State-licensed speech-language pathologist. The occupational therapy provider was a New York State-licensed occupational therapist. In addition to providing the individual services to STUDENT, the providers also prepare for sessions, create goals, write progress reports, and meet with teachers and parents. REDACTED explained that STUDENT’s progress was measured though “quarterly assessments, consistent meetings with the provider and support staff, observation of STUDENT in the classroom, and daily session notes.” She stated that STUDENT showed progress with the services, but her academic and social delays warranted the need for continued services. REDACTED testified that the rate for SEIT services and SETSS is $160 per hour, and the rate for speech-language, occupational, and physical therapies is $185 per hour. She stated that the rates are less than or equal to the current market rate for those services in the area. The rates include one-on-one supervision, educational resources and support, team coordination, professional development, employment taxes, administrative costs, and overhead costs.

REDACTED (mother) provided her direct testimony through a sworn affidavit, which is fully considered part of this decision although not included in its entirety. (Parent Exhibit E). She described STUDENT’s struggles in many academic and socio-emotional areas and needs a lot of extra assistance. She stated that STUDENT was receiving services pursuant to pendency.

REDACTED described the recommendation of the CSE in the IEP dated February 24, 2021. (Parent Exhibit D) She stated that in March 2021, STUDENT received a placement recommendation for an ICT program at REDACTED. REDACTED testified that she learned “that a Yiddish-Bilingual ICT program does not exist within the NYC public school system.” She submitted a Ten-Day notice to the CSE, dated September 13, 20221, notifying the CSE of the difficulty in locating such a program and of her intent to implement an alternative special education program. Although the DOE confirmed receipt of REDACTED’s notice, there was no substantive response. REDACTED arranged for services to be provided by the Agency for the 2021-2022 school year. She signed a contract with the Agency for the provision of services but was not able to pay for them herself. She is seeking direct payment by the DOE for the services provided.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The DOE has the burden of establishing that it offered a FAPE to STUDENT. (R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-185 [2d Cir. 2012]; Educ. Law § 4404[1][c]). 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 (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E., 694 F.3d at 189-190; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

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). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). The statute 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] [citations 5 omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).

The DOE chose not to participate in the impartial hearing and, therefore, could not meet its burden to demonstrate that it offered a FAPE to STUDENT for the 2021-2022 school year. In addition, the record established that the DOE did not develop an IEP or offer a placement to STUDENT for the 2021-2022 school year that could be implemented. The DOE clearly failed to offer a FAPE to STUDENT.

The Parent has the burden of establishing the appropriateness of the program provided to STUDENT (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29; Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363; Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105 [2d Cir. 2007]) The standard used to measure the appropriateness of the parent’s placement is “not perfection.” (M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 [2d Cir. 2000]) “The issue turns on whether a placement - public or private- is reasonably calculated to enable the child to receive educational benefits.” (Gagliardo, 489 F. 3d at 112)

I find that the Parent has prevailed with respect to the appropriateness of STUDENT’s program of services provided by the Agency. The record established that the special education program provided to STUDENT was the last agreed upon program and was, therefore, directed to be provided during the pendency of this proceeding. In addition, it was a program that the Parent believed was appropriate for the 2021-2022 school year. The program was able to address STUDENT’s needs, provide individualized instruction, and otherwise support her academically, socially, and emotionally. She made progress due to the program being tailored to her individual needs. REDACTED provided persuasive and unrefuted testimony to this effect and strongly affirmed the appropriateness of the program. The program was reasonably calculated to allow STUDENT to receive educational benefits and make meaningful progress. REDACTED described the progress STUDENT made during the 2021-2022 school year.

Since the DOE chose not to participate in the impartial hearing, the entirety of the Parent’s case was undisputed. I find that the Parent has prevailed with respect to the appropriateness of STUDENT’s program of special education services provided by the Agency.

The final criterion for an award is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). An award may be impacted by a parent’s failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026).  In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP, or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support an award in favor of the parent. (Application of a Child with a Disability, Appeal No. 04-049).

There are no equitable considerations that would preclude or adversely affect an order in favor of the Parent. The record clearly established that the Parent cooperated and communicated with the DOE. The Parent shared their concerns and there was no response. There is absolutely no basis on which to reduce or modify the remedy for the Parent.

ORDER

1. The DOE failed to provide a FAPE to STUDENT for the 2021-2022 school year;

2. The Parent’s program of special education services provided to STUDENT by the Agency was appropriate for the 2021-2022 school year;

3. There are no equitable considerations which would reduce or bar an award of reimbursement; and, therefore,

4. a) The DOE shall directly pay to the Agency the cost of special education services (SETSS) of 15 hours per week provided to STUDENT by the Agency, during the 2021-2022 school year, at a rate of $160 per hour; b) The DOE shall directly pay to the Agency the cost of speech-language therapy 3 times per week for 30-minute sessions provided to STUDENT by the Agency, during the 2021-2022 school year, at a rate of $185 per hour; c) The DOE shall directly pay to the Agency the cost of occupational therapy 2 times per week for 30-minute sessions provided to STUDENT by the agency, during the 2021-2022 school year, at a rate of $185 per hour; and, d) Payment shall be made immediately upon the submission of an invoice to the DOE for the provision of the services by the Agency to STUDENT, in paragraphs a, b, and c, above, during the 2021-2022 school year.

SO ORDERED.

DATED: April 18, 2023 Amy Lynne Itzla, Esq.

Amy Lynne Itzla Esq.

Impartial Hearing Officer

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.

SUBMIT THIS PAGE TO THE PARENT AND SCHOOL DISTRICT ONLY. DO NOT SUBMIT TO THE NYSED.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Letter Date Description Pages

A

9/13/2021

DPC

6

B

10/29/2014

IEP

25

C

9/13/2021

TDN

3

D

2/24/2021

IEP

29

E

11/14/2022

Affidavit of Parent

3

F

11/14/2022

Affidavit of REDACTED

4

G

Undated

Provider Credentials

4

Footnotes

[1] Personally identifiable information is attached to this decision as Appendix A, “Redaction Identification Page,” and must be removed prior to public distribution.

[2] A more detailed list of the admitted exhibits is attached to this decision as Appendix B, “Documentation Entered Into the Record.”