NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED]
(hereinafter referred to as “the Student”)
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested by: [REDACTED] (hereinafter referred to as “the Parents”)
Record Close Date: July 7, 2022
Decision Date: July 21, 2022
Hearing Officer: Lisa S. Rusk, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 21, 2022
For the Student:
[REDACTED] Attorney
For the Department of Education:
[REDACTED] District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 10, 2022
For the Student:
[REDACTED] Attorney
[REDACTED] Parent
[REDACTED] Special Education Teacher
For the Department of Education:
In Absentia
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 16, 2022
For the Student:
[REDACTED] Attorney
[REDACTED] Special Education Teacher
For the Department of Education:
[REDACTED] District Representative
[REDACTED] School Psychologist
On September 15, 2021, the Parents of the Student filed a due process complaint (DPC) against [REDACTED] (hereinafter referred to as the “District”), alleging the failure of the District to provide the Student with appropriate supports and services with qualified providers for the 2021-22 school year. The undersigned impartial hearing officer (“IHO”) was appointed on February 18, 2022. A prehearing conference was held on March 2, 2022, and a status conference was held on March 18, 2022. A hearing date was held on April 21, 2022. The District entered Exhibits 1 to 4 into evidence, and the Parents entered exhibits A-L into evidence. An order of extension was issued at the request of the parties. A hearing date scheduled for May 20, 2022, was adjourned at the request of Parents’ counsel. The parties agreed to June 10, 2022, at 10:00 am and June 16, 2022, at 2:00 pm for the continuation of the hearing.
On June 10, 2022, at 10:02 am, the IHO and Parents’ counsel received an email from [REDACTED] of the District stating: “Dear IHO Rusk, the District respectfully requests, if possible, an adjournment of today’s hearing, as CSE is overextended today. Please accept my apologies for any convenience caused to the parent, the parent’s attorney and to you. If the hearing proceeds, please accept my email in lieu of participation. The District respectfully requests another date to be able to present our witness. The District respectfully requests, if needed, an extension of the compliance date. Thank you.” (T:58). Due to the District’s late notice and the presence of Parents' witnesses, the scheduled hearing proceeded on June 10, 2022, without a District representative. An expedited transcript was ordered, and the District was given permission to present their witness at the next hearing date. On June 10, 2022, the Parents presented both the Parent and a private special education teacher as witnesses. The Parents also withdrew Exhibit G.
On June 16, 2022, the Parents entered Exhibit M into evidence and presented another private special education teacher. The District presented school psychologist [REDACTED]. [REDACTED] presented an oral closing argument on behalf of the District. The Parents were permitted to submit a closing brief by June 30, 2022 and did timely submit their brief.
BACKGROUND AND POSITIONS OF THE PARTIES
The Student is a [REDACTED] year old female who is classified as a student with a speech or language impairment. (Parent Ex. A). She is parentally placed at [REDACTED]. She has been diagnosed with a Mixed Receptive-Expressive Language Disorder, Specific Learning Disability in reading and written expression, and a generalized anxiety disorder. She does not meet the clinical criteria for selective mutism but presents with certain aspects of the diagnostic profile (Parent Exhibit F-9).
The District developed an Individualized Education Services Program (IESP) dated October 30, 2020 and recommended special education teacher support services (SETSS) for seven periods per week, as well as speech language therapy three times per week for 30 minutes, occupational therapy 2 times per week for 30 minutes and counseling services two times per week for 30 minutes (District Exhibit 2 at pg. 18). The CSE reconvened again on October 21, 2021, and recommended the same level of special education and related services (District Exhibit 1 at page 10).
The DPC alleges that the District failed to recommend an appropriate level of special education supports and services for the Student. The Parents argue that the Student requires 20 hours per week of individual special education itinerant teacher (SEIT) and pull-out literacy instruction in a SETSS model. The DPC requests:
- • A finding that the District failed to provide the Student with appropriate support and services for the 2021-22 school year;
- • Funding for 20 hours of SEIT services per week at an enhanced rate;
- • An order for pull-out literacy instruction in a SETTS model;
- • Reimbursement for any monies expended by the Parent in providing SEIT, SLT, OT or counseling services for the 2021-22 school year;
- • An award of compensatory education in the form of make-up related services for any services the District failed to provide.
The District presented the school psychologist who attended the October 30, 2020, CSE meeting and four exhibits. The Parent testified, presented the testimony of two private special education providers and entered eleven exhibits into the record.[1]
FINDINGS OF FACT AND DECISION
The Individuals with Disabilities Education Act (IDEA) provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000). School districts are obligated to provide the services listed in a Student’s IEP.
The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a], [c], 300.138[b]). Under New York State law, however, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational services for their child by filing a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2). In such circumstances, the district of location's CSE must review the request for services and 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 (Educ. Law § 3602-c[2][b][1]). The CSE must "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.). An eligible New York State resident student may, therefore, be voluntarily enrolled by a parent in a nonpublic school, but at the same time “dually enrolled” in the public school district for the purpose of receiving special education programming under Education Law § 3602-c.
In New York State, school districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement or payment for services for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement or services (NYS Educ. Law § 4404(1)(c)). (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]).
The District’s school psychologist testified that for an IESP the District can only recommend a certain number of SETSS periods and related service and that is what they did at the October 30, 2020, meeting (T:105). She testified that the CSE reviewed the neuropsychological evaluation and available school reports and listened to the participants at the meeting. She testified as to how the goals may have been developed (T:107). She testified that the IESP also contained a description of the Student’s management needs and testing accommodations. She testified that the CSE absolutely believed that the IESP recommendations would have assisted the Student in making progress toward her goals (T:109-10). The CSE increased the number of SETSS from 5 to 7 per week. The CSE did not want her to have any more pullouts from the classroom at her private placement (T:110). She testified that 1:1 instruction is overly restrictive, and that the Student did not require it (T:114). She testified further that a recommendation for more than two periods per day of SETSS would be an indicator that the child was inappropriately placed (T:114). The CSE did not feel she required 1:1 instruction in the classroom (T:115). For both academic and social reasons, the school psychologist testified that group service is preferable for the Student (T:118-19).
No District witness present at the October 21, 2021, CSE meeting testified. The only documents entered into the record by the District were the October 30, 2020, and October 21, 2021, IESPs and two prior written notices (PWNs), dated November 12, 2020, and November 4, 2021. None of the documents listed in the November 12, 2020, PWN were introduced into the record or described in testimony. The November 4, 2021, PWN lists only a July 23, 2019, psychoeducational evaluation, which also was not entered into the record. Neither PWN reflects consideration of the August 8, 2019, neuropsychological of [REDACTED], although the October 2020 IESP contains scores from the evaluation (District Exhibit 2 at pgs. 1-2).
The District has failed to establish that its recommendations in either the 2020 or 2021 IESP were appropriate. The District’s witness did not testify to any real familiarity with the Student, her evaluative record or the development of her recommended goals. There was no testimony from any witness who took part in the development of the IESP that was operative for the bulk of the 2021-22 school year (District Exhibit 1). The IESPs cannot be upheld based upon the evidence presented, or more particularly, the lack of evidence presented in the hearing record.
Equitable Services
Having found based upon the record that the District’s IESPs were not appropriate, I must review the Parents’ unilateral provision of 20 hours per week of 1:1 instruction by a special education teacher.[2] In order to meet their burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement or services provided “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement or services “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement or services must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.
The standard to apply is whether "[the] unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo. 489 F.3d at 112 (quoting Frank G, 459 F.3d at 364-65).
[REDACTED]’s evaluation elicited a full-scale IQ of 97. The Student has adequate skills in visual spatial skills, visual reasoning and processing speed. She scored low average in verbal comprehension and working memory. She has significant expressive and receptive language challenges. Her academic achievement scores were average on all subtests, except for one reading comprehension score. Her struggles in language, attention and executive functioning and with anxiety affect her academic performance (Parent Exhibit F at pps. 3-9). In 2019, [REDACTED] recommended 4 hours per day of SEIT support in the classroom. [REDACTED] opined that the Student requires SEIT support “within her classroom to aid her in keeping pace with classroom demands and assignments, promote participation and bolster her understanding of lessons across curricula.” [REDACTED] stated further that a SEIT “is uniquely positioned to meet her constellation of needs as demands arise in the classroom.” (Parent Exhibit F at pg. 10).
The Parent described the Student’s progress during the 2021-22 school year. She commenced the year quite inhibited and anxious due to her language and processing issues (T:62-63). She testified that she does better in a 1:1 setting (T:63). She described her strengths as her engagement, lack of behavioral concerns and her love of learning, art and sports. Her weaknesses are reading, writing, anxiety, executive functioning and organization (T:64).
The Parent attended the October 2020 and October 2021 IESP meetings (T:66). She testified that she disagreed with the IESP’s disregard of the neuropsychologist’s recommendation of 20 hours of SEIT per week. The Parents advised the District that they would continue to provide private SEIT services for the 2021-22 school year and seek reimbursement (T:65-66, Parent Exhibit B). The Parent testified that she did not receive a copy of the October 2021 IESP until March of 2022 when requested by her attorney (T:67). Despite the recommendation for 7 hours of SETSS, she did not receive a referral to any provider (T:67-68). She had the same concerns with the October 2021 IESP as she did with the October 2020 IESP (T:68).
The Parent testified that she arranged for the two private SEIT providers because the Student required someone sitting next to her in the classroom and outside of the classroom to reinforce lessons and skills acquired during the day. [REDACTED] sits with her for 3 and ½ hours per day in the classroom Monday thru Thursday and 2 hours on Friday (T:69). [REDACTED] provides support either before or after school four hours per week (T:69-70).
In terms of progress this year, the Parent sees the Student as more autonomous, a little more social, and a little more secure in herself. She’s more willing to talk to different people, and her school principal thinks she is doing really well (T:71).
Both SEITs charge $150 per hour. The Parent testified that through March 2022, the Parents had paid $28,800 to [REDACTED] and still owed her $28,800. She was not sure of the status of payment to [REDACTED] (T:73).
[REDACTED] testified that she has been working as a SEIT provider since 2002 and started working with the Student in September of 2020 (T:127-28). She provides some services in school before the school day starts, but mostly provides remote services when she is home. At home, she helps her with her homework, primarily with organization and study skills. She also did a lot of Hebrew language review (T:137). She testified that all of her academic skills with modifications are in the average range (T:145,148). They work together over a Zoom or FaceTime screen (T:129). In terms of progress, she testified that the Student has become more social. She raises her hand more and is more intelligible (T:131). [REDACTED] believes the Student required her services to reduce her anxiety and provide 1:1 academic and emotional support (T:133). [REDACTED] charges an hourly rate of $150 per hour and has been paid in full by the Parents.
[REDACTED] testified that she provided 16 hours per week of SEIT services to the Student at [REDACTED] for the 2021-22 school year. Most of the services were provided in the classroom, but she did pull the Student out of the classroom when more individualized support was needed (T:79). She pulled her out for some math instruction and most writing lessons (T:89). The Student required the 1:1 support in the classroom due to her anxiety, language processing issues and difficulty with organization and executive functioning. In reading, she has difficulty with reading comprehension, making inferences and is very rigid in her thinking. In math, she has organization issues and language processing issues which interfere with word problems in particular. In writing, she has difficulty organizing her thoughts and her anxiety greatly affects her writing. She is very anxious and shy. She describes the Student’s strengths as decoding, math calculations, dance and gymnastics (T:80-81).
In terms of progress, [REDACTED] testified that the Student is less afraid to tackle word problems in math and her math concepts have improved. In reading, she has improved in finding the main idea and is decoding on grade level. In writing, she is more motivated to complete tasks (T:82-82). [REDACTED] testified that she required all of the special education services she received (T:84).
[REDACTED] testified that the Parents have paid her $31,875 to date. They paid her $75 per hour up front, and they are hoping to get reimbursed by the District for the remaining $75 per hour. Otherwise, the Parents will be obligated to pay the full amount of $150 per hour pursuant to a signed agreement (T:85). No agreement, however, is entered into the record. [REDACTED] testified that she has an initial certification in special education birth to grade 6 issued by the New York State Education Department last year.
Based upon the record evidence presented, I find that the Student’s language, learning, executive functioning and emotional challenges negatively impact her participation and progress in the general education curriculum. There is no dispute that she required at least 7 hours per week of special education instruction. The only evaluative report in the record recommends 4 hours per day of special education instruction within the classroom. The Parents have met their burden that the 16 hours per week of special education teacher services[3] provided to the Student in the classroom constituted an appropriate unilateral placement for which they are entitled to relief. I do not find that the record supports the appropriateness of the 4 hours per week provided outside of the classroom in that it was not recommended in [REDACTED]’s report or any other report. In addition, the record was not clear that the before/after school instruction was necessary for the Student to benefit from her instruction.
Equitable Considerations
There is no evidence in the record of any contractual agreement between the Parents and [REDACTED] for the payment of 16 hours per week of special education services. [REDACTED] testified that the Parents agreed to pay $75 per hour and seek the remainder from the District. Although [REDACTED] alluded to an agreement that the Parents would be responsible for the full hourly rate of $150 per hour, there is no evidence of such an agreement in writing (see Application of a Student with a Disability, Appeal Nos. 21-025 and 20-094). In addition, I find given [REDACTED] limited experience in comparison with [REDACTED]’s, $150 per hour is excessive. The Parents are entitled to reimbursement in the amount of $75 per hour for up to 16 hours per week of special education teacher services provided by [REDACTED] during the school day.
For all the foregoing reasons, the Parent’s request for reimbursement for 16 hours per week of special education teacher services for the 2021-22 school year at the rate of $75 per hour is granted.
ORDER
IT IS HEREBY ORDERED that the District shall reimburse the Parents at the rate of $75 per hour for up to 16 hours per week of special education teacher services provided by [REDACTED] during the 2021-22 school year. Such payment shall be made within 15 days of receipt of proof of all payments made to [REDACTED] for the 2021-22 school year.
Dated: July 21, 2022
______________________________
LISA S. RUSK
IMPARTIAL HEARING OFFICE
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.
DOCUMENTS ENTERED INTO THE RECORD
District Exhibits Pages
1 10/21/21 IESP 14
2 10/30/20 IESP 21
3 11/12/20 Prior Written Notice 6
4 11/04/21 Prior Written Notice 5
- • Parent Exhibits Pages A 9/14/2021 Due Process Complaint 14 B 9/13/2021 Ten Day Notice with Email Confirmation 4 C 9/2/2021 Findings of Fact & Decision, Case #204183 15 D 10/13/2021 Order of Pendency 2 F 8/8/2019 Neuropsychological Evaluation of [REDACTED] 14 H 12/8/2021 [REDACTED] Certifications 1 I Various [REDACTED] SEIT Invoices: Sep. 2021 – Feb. 2022 6 J Various Parent POP to [REDACTED] ([REDACTED])
3
K
Various
[REDACTED] SEIT Invoices: Oct. 2021 – Jan. 2022
4
L
Various
Parent POP to [REDACTED]
3
M
Undated
[REDACTED] special education certification
1
Footnotes
[1] Parent Exhibit G was withdrawn on the second day of hearing.
[2] There was no testimony or evidence of privately funded related services or request for compensatory services, and as such, these requests were not considered. In addition, there was no evidence or testimony regarding the need for pull-out literacy instruction.
[3] NYCRR 200.16[i][3][ii] defines SEIT services as special education teacher services provided to preschool students.