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Special Education Law
DECISIONMixed ResultIHO Case No. 218689

New York City Department of Education, Impartial Hearing Decision

May 15, 2022·Jean Marie Brescia·Representative

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

NYSED # 562873 / NYC # 218689

FINDINGS OF FACT AND DECISION

Case Number: 218689

Student’s Name: [REDACTED] [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: March 8, 2022

March 9, 2022

April 7, 2022

May 4, 2022

Actual Record Close Date: May 10, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

March 8, 2022 For the Parent:

[REDACTED], Legal Assistant For the Department:

[REDACTED], District Representative

March 9, 2022 For the Parent:

[REDACTED], Advocate For the Department:

[REDACTED], District Representative

April 7, 2022 For the Parent:

[REDACTED], Esq.

[REDACTED] [REDACTED], Parent

[REDACTED] [REDACTED], Educational Director For the Department:

[REDACTED], District Representative

May 4, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

On March 1, 2022 I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of [REDACTED] [REDACTED] after the appointment of another hearing officer was rescinded. [REDACTED]’s parent (“Parent”) requested the hearing on October 4, 2021, challenging the Department of Education’s failure to offer [REDACTED] a free appropriate public education for the 2021-2022 school year and seeking continuation of services set forth in a CPSE IEP and compensatory services for [REDACTED] for the 2021-2022 school year. Parent’s Ex. A at 1-3.

A pre-hearing conference was conducted on March 8 and March 9, 2022. The hearing commenced on April 7, 2022. The DOE did not present the testimony of any witnesses nor offer any documents in evidence. Tr. 18, In both the Request for Due Process Hearing and at the hearing, Parent challenged the services recommended in the CSE IESP, argued that the services set forth in the May 2020 CPSE IEP were appropriate for [REDACTED], and clarified that the relief sought was 10 hours per week of SEIT services and continuation of RSAs for related services. Tr. 82. The request for such services (SEIT and related services via RSAs) is well within the of the language in the Request for Due Process Hearing. Ex. A at 3 (seeking “an order that the recommendations of the IEP dated 5/13/2020 continue for the 2021-22 school year”).

On April 10, Parent submitted a brief with respect to legal positions presented by Parent at the April 7 hearing. IHO Ex. I. The hearing reconvened on May 4 to address issues raised by virtue of Parent’s brief and to complete the record. Tr. 87-89, 91. Parent was provided the opportunity to supply the contract between Parent and the agency providing services to [REDACTED], or some other evidence of the Parent’s legal obligation to pay the agency for providing such services. This contract was referenced in Parent’s affidavit. Tr. 91-92; Ex. E at ⁋ 11. As of the date of this decision, no such documentation has been forwarded to the Hearing Officer.

An extension of the compliance date was requested by the parties and granted by a written Order of Extension dated April 7, 2022.

The record closed on May 10, 2022, the deadline for Parent to supply any additional evidence, and the Actual Record Close Date is May 10, 2022.

Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

Findings of Fact

  • • [REDACTED] is a [REDACTED]-year-old boy whose disability, for the purposes of the IDEA, is classified as learning disability. Parent’s Exs. A at 1, B at 1, Ex. D at 1.
  • • [REDACTED] attends [REDACTED] grade mainstream classes at a private religious school, [REDACTED], in Brooklyn. Ex. A at 1.
  • • [REDACTED] struggles with academics, comprehension, focusing, attention, language skills, social skills, fine motor skills, visual motor skills, sensory integration, and aggressive behaviors. Tr. 36, 46-47, 51, 56; Ex. B at 4-12; Ex. E at ⁋ 2; Ex. G.
  • • On March 20, 2020, the CSE convened a [REDACTED] IESP meeting for [REDACTED]. Parent participated in this meeting. Ex. D at 1, 8.
  • • The CSE recommended that [REDACTED] receive SETSS for three periods per week as a group service and occupational therapy for two 30-minute sessions per week individually. Ex. D at 6.
  • • The CPSE convened an IEP meeting for [REDACTED] on May 13, 2020 to develop an IEP for the remainder of [REDACTED]’s time as a [REDACTED] student. [REDACTED]’s mother attended this meeting. Ex. B at 1-2.
  • • The CPSE recommended that [REDACTED] receive 10 hours per week of SEIT services, speech-language therapy for two 30-minute sessions per week individually, and occupational therapy for two 30-minute sessions per week individually. Ex. B at 1, 21.
  • • Both the CPSE and the CSE relied upon the same evaluative material in developing the above IESP and IEP. See Exs. B and D; Ex. E at ⁋ 5.
  • • Parent arranged with an agency [REDACTED], to provide SEIT services for [REDACTED] to start in September 2021. Ex. E at ⁋⁋ 8, 11.
  • • Parent’s affidavit states that Parent entered into a contract with [REDACTED]. Ex. E at ⁋ 11.
  • • Parent states that the contract with [REDACTED] “obligates” her to pay for the services that [REDACTED] is providing to [REDACTED]. Ex. E at ⁋ 11. This contract was not offered in evidence.
  • • For the 2021-2022 school year, [REDACTED] has been providing ten hours per week of SEIT services to [REDACTED] in his mainstream classroom and in a separate location in the mainstream school. Parent’s Ex. F at ⁋⁋ 13-15, 20, 23.
  • • Two SEIT providers work with [REDACTED]. Both are New York State certified special education teachers with experience teaching literacy and comprehension. They provide [REDACTED] with individualized and specialized instruction. This school year, they are working with [REDACTED] on phonics skills using the Wilson Reading System (with multisensory methods and repeated practice and review), reading accuracy and fluency, reading comprehension, sequencing, addition and subtraction, math word problems, expressive language, social skills, grammar, spelling, and writing. Ex. F at ⁋⁋ 14, 17, 23; Ex. G.
  • • The education director of [REDACTED] opined that [REDACTED] needs “support over five days” and “intense instruction so that he can work towards grade level and make progress in the mainstream setting.” Tr. 51. Without daily services, he would “definitely withdraw into his own little world” and “would not be able to participate, to work towards the classroom goals” and would struggle in all academic areas. Tr. 52.
  • • [REDACTED] has demonstrated “slow and steady” progress in early literacy with the significant support that he is currently receiving, with includes reading instruction with the Orton-Gillingham approach because he needs a multisensory approach to reading. Tr. 59; Ex. F at ⁋⁋ 25-26.
  • • The education director of [REDACTED] opined that [REDACTED]’s academic and social delays required the continuation of 10 hours per week of SEIT. Ex. F at ⁋⁋ 25-26; see also Ex. G at 6 (provider recommendation).
  • • [REDACTED] charges $182.00 for SETSS in order to cover the costs of the SETSS provider (who are certified special education teachers that [REDACTED] pays $100.00 per hour [for the provider with an additional certification in Orton-Gillingham]and $94.00 per hour, respectively), weekly 1:1 supervision of the SETSS providers, educational resources and support, professional development and materials, employment taxes, administrative costs and overhead costs. Tr. 61-62, 65-68; Ex. F at ⁋⁋ 9-11, 13-16.
  • • Parent submitted a ten-day notice letter to the Department on October 4, 2021. In this letter, Parent expressed her concerns about the Department’s failure to continue with ten hours per week of SEIT services for [REDACTED] despite the progress he made with those services; and she sought funding from the Department for those services and related services. Ex. C at 2-3.
  • • Parent asserts that she is contractually obligated to pay [REDACTED] for the SEIT services and paying for the SEIT services would be a financial hardship for [REDACTED]’s family. Ex. E at ⁋ 10. As stated above, this contract was not offered in evidence.

Decision

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982).

The IDEA mandates that each state receiving federal special education funds must provide each student with a qualifying disability a FAPE. 20 U.S.C. § 1412(a)(1)(A). FAPE is provided when a school district (1) has complied with the procedural requirements of the IDEA; and (2) the IEP developed by the CSE is reasonably calculated to enable the student to make progress given the student’s individual circumstances. Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). 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. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i); 8 NYCRR 200.5(j)(4).  In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

Under New York State Education Law § 3602-c, parents of students with disabilities have the right and ability to select a nonpublic school willing to enroll their child, and places the burden of developing and providing appropriate special education programming upon the school district in which such school is located. The school district must develop an appropriate program for the student in the environment in which the student will receive his or her education (i.e. – the nonpublic school). Section 3602-c expressly states that a school district of location’s CSE “shall 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].” Education Law § 3602-c(2)(b)(1). “The committee on special education shall assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equ[REDACTED]ble 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. See, e.g., Application of a Student with a Disability, Appeal No. 21-245 at pp. 10-18 (description of districts’ responsibilities under § 3602-c and interplay with IDEA); see also Application of a Student with a Disability, Office of State Review No. 20-094; Application of a Student with a Disability, Office of State Review No. 20-087. See also Bd. of Educ. of the Bayshore Union Free Sch. Dist. v. Thomas K., 14 N.Y. 3d 289 (2010) (relevance of individualized educational needs of dually-enrolled students).

[REDACTED] is a dually-enrolled student under Section 3602-c: he attends a non-public school (and was placed there by his parent), and, at the same time, he is recommended for services that a public school district is to provide. This case involves what educational services [REDACTED] should be provided and whether the DOE should be paying for those services. I proceed with the following discussion and attempt to follow the analysis set forth by the State Review Officer in Application of a Student with a Disability, Office of State Review No. 21-245 as well as reconcile federal statutory and decisional law and Section 3602-c of the New York Education Law. See, e.g., Application of a Student with a Disability, Office of State Review No. 20-094 at pp. 7-8 & n.6, 10-12, 26.

As in SRO No. 21-245, a Burlington/Carter analysis is both an appropriate and a practical manner in which to approach and consider this case. See Florence County School District v. Carter, 510 U.S. 7 (1993); School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). Under such an analysis, a board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equ[REDACTED]ble considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985).

In this case, the DOE did not present testimony or evidence with respect to its provision of FAPE to [REDACTED] for the 2021-2022 school year. The Department did present an argument that [REDACTED]’s services were changed from 10 periods per week of SEIT to three periods per week of SETSS because [REDACTED] reports and teacher observations indicated that [REDACTED] was in need of a level of redirection and prompting that was “more than gentle reminders” and because SEIT is “developmentally inappropriate” for [REDACTED] students. Tr. 26. However, there was no testimony or documentary evidence presented by the Department to support this view. Parent argues that the Department’s reduction in [REDACTED]’s services “was improper” because both “teams” relied upon the same evaluative data and came out with different results. IHO Ex. I at 1-2. I need not reach this argument because the Department did not bear its evidentiary burden of demonstrating that the IESP it created for [REDACTED] was appropriate for him. Since the Department did not offer any testimony nor documentary evidence in support of its program for [REDACTED], the Department did not carry its burden of proof and cannot prevail on the first “prong” of the Burlington/Carter test.

As to “prong II” of the Burlington/Carter analysis, [REDACTED]’s parent demonstrated, by a preponderance of the evidence, that the ten hours of SEIT services [REDACTED] received from [REDACTED] SEIT providers were appropriate. The record is not a broad and deep record, but it is sufficient to establish that [REDACTED] needs support (and can learn) in a general education classroom with support from a special educator and that [REDACTED] made progress with such support. Considering the “totality of the circumstances” as required by the Second Circuit in Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2d Cir. 2006), the evidence supports a finding that the current SEIT services are appropriate for [REDACTED] in his mainstream setting for the 2021-2022 school year.

However, when considering the “equities,” I find that I am constrained to deny funding for the SEIT services. The main “equites”-related arguments presented by the parties relate to the rate charged by [REDACTED]. The Department challenged the [REDACTED] rate sought by the Parent and requested that, if relief were granted, I order a “reasonable market rate.” Tr. 76.[1] [REDACTED]’s parent agreed to accept a “reasonable market rate” as determined by the Department’s Implementation Unit. Tr. 80; IHO Ex. I at 4. These arguments go by the wayside because under a Burlington/Carter analysis, services which are determined as reimbursable or fundable are fully reimbursed or funded by the school district “unless, as a matter of equ[REDACTED]ble considerations, the costs sought to be reimbursed are excessive or otherwise should be reduced, or, in the case of direct funding, the parent has not demonstrated a legal obligation to pay the cost and an inability to do so.” SRO No. 21-245 at p. 17 (emphasis added). In short, there must be proof of parents’ legal obligation to pay for services provided to their child. Id. at pp. 17-18. See also, e.g., D.A. v. New York City Dept. of Educ., 769 F Supp. 2d 403, 430 (S.D.N.Y. 2011).

In the instant matter, [REDACTED]’s parent testified (via affidavit) that she signed a contract with [REDACTED] that obligates her to pay [REDACTED] for services for [REDACTED]. This contract was not offered in evidence, and there is no evidence in the record of the contract’s terms, including the nature and extent of [REDACTED]’s parent’s obligation to pay for SEIT services. Nor is there any other evidence, such as a bill or invoice from [REDACTED], indicating [REDACTED]’s parent’s obligation to pay. As a result, there is insufficient evidence to support an award of funding relief for SEIT services. See SRO No. 21-245 at pp. 17-18.

With respect to [REDACTED]’s parent’s request for continuation of RSAs, there appears to be no dispute that [REDACTED] should continue to receive related services. Such services are specified in both the CPSE IEP and the CSE IESP for [REDACTED]. Since the parties agree on these services, they should continue.

[REDACTED]’s parent did not present any evidence with respect to compensatory services claims, and I deem those claims abandoned.

Therefore, for all the above reasons, it is ORDERED that:

1. Parents’ request for funding for SEIT services is denied.

2. The Department of Education shall continue to fund the Related Services Authorizations for speech-language and occupational therapies for [REDACTED] for the remainder of the 2021-2022 school year.

Dated: May 15, 2022

______________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the 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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT DISCLOSURE

Letter

Date

Name of Document

Number of Pages

A

10/4/2021

DPC

7

B

5/13/2020

CPSE IEP

24

C

10/4/2021

TDN

3

D 3/20/2020 IESP 9

E 4/6/2022 Affidavit of Parent 3

F 4/6/2022 Affidavit of [REDACTED] [REDACTED] 5

G 2/17/2022 Progress Report 6

H

Provider Credentials

2

IHO Exhibit

I. Parents’ Closing Brief 4/10/2022 4 pages

Footnotes

[1] The DOE also argued that the DOE “is responsible for supervision of the provider who has to submit to us progress reports,” and that therefore, the DOE seemed to argue, any portion of the [REDACTED] rate attributable to supervision of the SEIT provider is “redundant.” Tr. 73. I completely discount this argument as immaterial to this case for the reasons set forth above relating to equ[REDACTED]ble considerations and also because there was no evidence that the DOE attempted any supervision of the SEIT providers or any review of her progress reports (until such a report was provided in evidence in this case).