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SED # 563010 NYC # 218815
FINDINGS OF FACT AND DECISION
Case Number: 218815
Student’s Name: REDACTED
Date of Birth: REDACTED
District: REDACTED
Hearing Requested by: Parent
Dates of Hearing January 10, 2022
Actual Record Closed Date: January 12, 2022
Date of Decision January 17, 2022
Hearing Officer: Rachel Gibbons, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 10, 2022
For the Student:
REDACTED Attorney (Via telephone)
REDACTED Parent (Via telephone)
REDACTED Agency Administrator (Via telephone)
For the NYC Department of Education:
REDACTED District Representative (Via telephone)
INTRODUCTION AND PROCEDURAL BACKGROUND
This proceeding was brought in accordance with the New York State Education Law §3602-c and Article 89 by Petitioner REDACTED the parent (“Parent”) of REDACTED an eleven-year-old child with a disability (“Student”). On October 5, 2021 Petitioner filed a Due Process Complaint (“Complaint”) against the New York City Department of Education (“District” or “DOE”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) and New York State Education Law Section 3602-c. This Hearing Officer (“IHO”) was appointed to this matter on November 15, 2021. On the same day an order was issued declining consolidation of this matter with DOE case no. 221318. A prehearing conference was held on November 24, 2021 and a pendency hearing was held on December 2, 2021, both by telephone. A pendency order was issued on December 2, 2021.
On January 10, 2022 a due process hearing on the merits was held on a videoconference platform. The Parent submitted six exhibits, all of which were entered into evidence. The Parent testified at hearing and presented one witness: REDACTED, an administrator (“Administrator”) from the REDACTED (“Agency”). The District presented no witnesses nor evidence at hearing. The record was closed on January 11, 2022 and the date of compliance is January 18, 2022.
ISSUES PRESENTED
Whether the District, during the 2021-2022 school year, failed to provide the Student with special education services on an equitable basis to students enrolled in public schools as required by Educ. Law § 3602(c).[1]
- • Whether the District failed to supply a SETSS provider for the Student.
- • Whether the Parents’ request for direct payment for ten hours of SETSS per week at an enhanced rate is an appropriate remedy.
FINDINGS OF FACT
During the 2021-2022 school year the Student attended a private parochial school in Brooklyn. (Par. Ex. A p. 1). She was slated to receive special education services pursuant to an IESP dated April 22, 2021 (Par. Ex. B). The document reflects that the Student has a classification of “Learning Disability” and that she is delayed in the areas of reading comprehension, decoding, writing, math problems and receptive language. (Id. pp. 1-5). The IESP recommends SETSS direct group service in English, ten times per week for one period.[2] (Id. p. 8). The Parent stated that she attempted to secure a SETSS provider. (Tr. 33; Par. Ex. A p. 1). Parent Exhibit C is a document entitled “Parent Call Log” which is a typewritten list features ten names, each followed by a date ranging from August 30, 2021 to September 03, 2021; a phone number; and a comment such as “Not available” or “Number not in service.” The document is not signed. The Complaint states that the Parent “retain[ed] the services of an agency to provide the mandated SETSS services at an enhanced rate.” (Par. Ex. A p. 2). The Parent testified that she signed an agreement with the Agency. (Tr. 34, 35; see also Par. Ex. D). The Administrator testified that the Agency charges $150 per hour for SETSS, out of which the teacher receives approximately $82.50. (Tr. 28). The Parent submitted an “affidavit of services” from the Administrator that verified the Agency was providing ten hours of SETSS per week for the Student, at a rate of $150 per hour, and had the capacity to continue to provide SETSS for the entire school year. (Par. Ex. E; Tr. 25). A four-page progress report dated December 7, 2021 describes the Student’s challenges in reading, writing, math, language, social behavior. (Par. Ex. F). The progress report reflects that individualized goals, 1:1 SETSS, small group instruction, prompting, cues, and multi modal instruction are used to address her learning challenges. Id. The report also states that the Student needs her current SETSS mandate. (Id p. 2).
APPLICABLE STANDARDS
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. 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. 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.[3] If the evidence is evenly balanced, the party with the burden of persuasion must lose. [4]
The DOE failed to meet its responsibility to provide the services which it recommended in its IESP. The DOE presented no witnesses nor submitted any evidence to demonstrate that it provided SETSS services for the Student during the 2020-2021 school year. It is undisputed that the District neither provided nor offered to provide SETSS for the Student for the 2021-2022 school year. The District thus failed to meet its burden of proof to show that it provided the Student with appropriate special education on an equitable basis for the 2021-2022 school year.
Unilaterally obtained SETSS and direct payment The District does not dispute that it recommended ten weekly hours of SETSS group service to the Student for the 2021-2022 10-month school year. This matter falls in with a line of cases where the DOE’s failure to provide SETSS has motivated parents to seek out private special education teacher services.[5] 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.[6] (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). This Parent prevails on the first prong, which hinges on the District’s failure to provide FAPE or special education in an equitable manner. This Parent also prevails on the question of the appropriateness of the unilaterally obtained SETSS instruction, as she submitted a progress report that could support an assertion that the services were individually tailored to the Student and were calculated to enable her to progress. (Par. Ex. F).
The Parent did sign an agreement with the Agency. (Ex. D). The Agency In this agreement the parent’s responsibilities are specifically enumerated; however the Agency’s responsibilities are not. (Par. Ex. 2). The agreement seems to focus on ensuring that the Parent will participate, if needed, in CSE meetings, resolution sessions and impartial hearings. There is no specificity of the kind of services that will be rendered by the Agency, the location of such services is not mentioned, the number of sessions is not included and neither an hourly rate or total cost are mentioned. Id. There is a clause regarding payment which states “However, the parent(s) acknowledge and agree that the parent is contracting for these services with [the Agency], and as such, responsibility ultimately rests with the parents for payment in the event that [the Agency] does not receive full payment from the DOE for these services.” (Id. p. 2). Although the agreement lacks terms of service and payment, an agreement by the Parent to pay for services for the Student may be construed.
However, the Parent requests relief in the form of direct payment by the DOE to the Agency for SETSS for 2021-2022 school year, not in the form of reimbursement to the Parent. 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. (See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014).
The Parent has provided no proof of payment for the unilaterally obtained SETSS, nor has she provided testimony or evidence, such as a tax return, that shows she lacks the financial resources to pay for the services for the Student. The Parent’s request for a remedy of direct payment to the Agency for the SETSS hours provided to the Student during the 2021-2022 school year must be therefore be denied.
ORDER
NOW THEREFORE BASED ON THE FOREGOING, it is
ORDERED that the DOE failed to provide appropriate special education services on an equitable basis to the Student for the 2021-2022 school year; and it is further;
ORDERED that the Parent’s request for direct payment to the Agency for SETSS services rendered to the Student during the 2021-2022 school year is denied; and it is further;
ORDERED that all relief not specifically granted in herein DENIED.
Dated: January 17, 2022
Rachel Gibbons, Esq.
Impartial Hearing Officer
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
Ex. Description Date Pages
A. Impartial Hearing Request 10/05/21 4
B. CSE IESP 6/01/21 11
C. Parent Call Log 8/30/21 1
D. Parent Agreement 10/04/21 2
E. Affidavit of Services 12/06/21 1
F. Progress Report 12/07/21 4
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] The Complaint contained additional claims that were not pursued at hearing: that the DOE (a) failed to hold an IESP for the school year at issue; (b) failed to develop timely education programs; and (c) failed to recommend sufficient SETSS to address the Student’s needs. Furthermore, the June 1, 2021 IESP shows that the District held a timely meeting and developed a timely IESP. (Par. Ex. B). In addition, instead of arguing that the recommended ten periods of SETSS were inadequate, the Parent requested as a remedy the direct payment for ten weekly periods of SETSS at an enhanced rate. (Par. Ex. A p. 2).
[2] The June 2021 IESP also recommended speech-language and occupational therapy. At hearing the Parent asked for a decision regarding only the SETSS services. (Tr. 23-24; Par. Ex. A p. 2).
[3] See Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993).
[4] Director, Office of Worker’s Compensation Programs v. Greenwich Colliers, 512 U.S. 267, 281 (1994).
[5] See e.g. Application of a Student with a Disability, Appeal No. 21-029; Application of a Student with a Disability, Appeal No. 20-141; Application of a Student with a Disability, Appeal No. 20-140; Application of a Student with a Disability, Appeal No. 20-115; Application of a Student with a Disability, Appeal No. 20-099; Application of a Student with a Disability, Appeal No. 20-094; Application of a Student with a Disability, Appeal No. 20-087)
[6] 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. Burlington School Comm. v. Dept of Education, 471 U.S. 359 (1985); see also Florence County School Dist. Four v. Carter, 510 U.S. 7 (1993)).