NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBER: 563861 - NYC: 219524
FINDINGS OF FACT AND DECISION
Student's Name [1]: [Redacted] ("Student")
Date of Birth: [Redacted]
School District: [Redacted]
Hearing Requested by: [Redacted] ("Parent")
Request Date/Date Complaint Filed: October 14, 2021
Dates of Hearing: January 19, 2023 and April 3, 2023
Actual Record Closed Date: April 6, 2023
Date of Decision: April 12, 2023
Date of Distribution if Different than Decision Date: April 12, 2023 Hearing Officer: Agoston
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 19, 2023
For the Student:
[Redacted], Esq., Attorney
For the Department of Education:
[Redacted], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 3, 2023
For the Student:
[Redacted], Esq., Attorney
For the Department of Education:
[Redacted], District Representative
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer ("IHO") on Parents' Due Process Complaint ("DPC") filed on or about October 14, 2021(P-Exh. A). 2
On March 10, 2022, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA"), 20 U.S.C. §1415(f)(1) in the matter of [Redacted]. (hereinafter "the Student"). A Pre-hearing Conference was held on April 14, 2022. A hearing limited to the Parents' request for the issuance of an order concerning pendency entitlements was held on January 19, 2023 and I ordered that the Department of Education ("DOE") fund direct group special education teacher support services ("SETSS") for 5 periods per week in English and individual SLT twice per week for 30 minutes per session in English and individual occupational ("OT")[2] twice per week for 30 minutes per session in English per the Individualized Education Services Program ("IESP") dated April 24, 2020, for a 10-month program (P-Exh. B at 11;IHO-Exh. XIII). The hearing commenced and concluded on April 3, 2023. It was a closed hearing, and Parents were represented by [Redacted], Esq., and the DOE was representative by [Redacted]. The Parents entered into evidence exhibits (P-Exhs. A-B). No DOE evidence was entered as exhibits. [3]
The record was closed on April 6, 2023. The Parents' representative moved to extend the compliance date during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly, the requests for the extension of the compliance date were granted (T.88;IHO-Exhs. I-XII). The current record close date is April 6, 2023 and the decision due date is April 20, 2023.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the 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
The Student was classified with a Learning Disability on the IESP dated April 24, 2020, (P-Exh. B at 1) and provided with the following services: direct group SETSS for 5 periods per week in [Redacted] and individual SLT twice per week for 30 minutes per session in [Redacted] and individual OT twice per week for 30 minutes per session in [Redacted] per the IESP dated April 24, 2020, for a 10-month program (P-Exh. B at 11). The Parents alleged in the DPC dated October 14, 2021, that the DOE failed to provide a free and appropriate public education ("FAPE") for the 2021-2022 school year as the DOE failed develop an new IESP since the last IESP dated April 24.2020 and as per the equitable services the DOE failed to provide a SETSS provider and related services provider who were willing to work with the Student at the standard DOE rate and that the Parents contacted independent SETSS providers and related service providers and none were willing to work without an enhanced rate for the 2021-2022 school year (P-Exh. A at 2). The Parents seek a Final Order that the Parents are entitled to implementation of an enhanced rate to fund the program outlined in the IESP dated April 24, 2020 at the SETSS provider's prevailing rate (T.83).
ISSUES
Did the DOE fail to provide a FAPE for the 2021-2022 school year and were the Parents entitled to direct group SETSS for 5 periods per week in [Redacted]and individual SLT twice per week for 30 minutes per session in [Redacted] and individual OT twice per week for 30 minutes per session in [Redacted] for the Student per the IESP dated April 24, 2020, for a 10-month program at the SETSS provider's prevailing rate and did the equities favor the Parents?
FINDINGS OF FACT
Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student but that education must be appropriate so that there is an opportunity for the student to make progress in his/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]).(Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student's unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). 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, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 [U.S. Mar 22, 2017]). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).The Court in Rowley also observed that states are not required under IDEA to maximize every disabled child's potential (Rowley, 458 U.S. at 198). The Second Circuit further observed that the IDEA is not intended to "secure the best education money can buy" or "guarantee any particular level of education" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]) (internal citations and quotation marks omitted). FAPE is delivered by a school through the implementation of an appropriate IEP. See Endrew F. v. Douglas Cnty. Sch. Dist., 137 S.Ct. 988, 994 (2017). Under the IDEA, if a procedural violation is 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 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]); Bd. of Educ. v. Schaefer, 923 N.Y.S.2d 579, 56 IDELR ¶ 234 (App. Div. 2011).
The DOE has the burden of proof of both production and persuasion as to (a) whether FAPE was provided to the Student and (b) questions relating to relief, as the Parents were not seeking tuition for a unilateral placement in a private school. N.Y. Educ. Law § 4404; see also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 016);see also Application of a Student with a Disability, Appeal No. 11-032 Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.
I find that the DOE representative did not defend against any allegations in the DPC and did not present a case and agreed that the Parents were entitled to the equitable services as outlined in the IESP dated April 24, 2020 and that the Parents were entitled to direct group SETSS for 5 periods and individual SLT twice per week for 30 minutes per session and individual OT twice per for 30 minutes per session (T.84-87). I find that the DOE representative did not present a case. The SRO has found that allegations that are left unchallenged are deemed as true. (See Application of a Student with a Disability, 01-044). I find that the DOE representative did not establish that a free and appropriate program was offered to the Student during the 2021-2022 school year.
The Southern District ruled on whether the Burlington/Carter analysis applied in a case procedurally analogous to this instant matter. M.N. and H.N. v. New York City Department of Education, 700 F.Supp.2d 356, 368 (S.D.N.Y 2010). I find that the Burlington/Carter analysis is not necessary when the relief sought is not funding for a unilateral placement, but rather the continuation of related services or SETSS services or SEIT services.
CONCLUSIONS OF LAW
Accordingly, I conclude that a FAPE was not offered for the 2021-2022 school and I conclude that the Parents' actions have been reasonable and consistent with the IDEA. See C.D. v. N.Y.C. Dep't. of Educ., 15–CV–2177(ARR)(JO), 2016 WL 3453649, at *20 (E.D.N.Y. June 20, 2016). I find that the Parents have met their burden of proof with respect to the request for the enhance rate for the SETSS provider as the Student was entitled to receive of direct group SETSS for 5 periods per week in [Redacted]. I further find that the Student was entitled to related services of individual SLT twice per week for 30 minutes per session in [Redacted]and individual OT twice per week for 30 minutes per session in [Redacted] per the IESP dated April 24, 2020, for a 10-month program (P-Exh. B at 11) for the 2021-2022 school year.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered: (1) that the Parents acted reasonably and the equities favor the Parents; and (2) that the DOE fund direct group SETSS for 5 periods per week in [Redacted] at an enhanced rate and provide individual SLT twice per week for 30 minutes per session in [Redacted] and individual OT twice per week for 30 minutes per session in [Redacted] per the IESP dated April 14, 2020, for a 10-month program for the 2021-2022 school year.
SO ORDERED.
DATED: April 12, 2023
/s/ Linda Agoston
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.
APPENDIX A – REDACTION IDENTIFICATION PAGE
Student's Name:[Redacted]
Date of Birth: [Redacted]
School District:[Redacted] Parent's Name:[Redacted]
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
A. Due Process Complaint 10/14/2021 3 pages
B. IESP 04/24/2021 15 pages
DOE'S EXHIBITS
None
IHO'S EXHIBITS
I. Decision on Extension 04/14/2022 1 page
II. Decision on Extension 05/242022 1 page
III. Decision on Extension 06/14/2022 1 page
V. IV Decision on Extension 0722/2022 1 Decision on Extension 08/22/2022 1 page
VI. Decision on Extension 09/21/2022 1 page
VII. Decision on Extension 10/21/2022 1 page
VIII. Decision on Extension 11/17/2022 1 page
IX. Decision on Extension 12/16/2022 1 page
X. Decision on Extension 01/19/2023 1 page
XI. Decision on Extension 02/17/2023 1 page
XII. Decision on Extension 03/15/2023 1 page
XIII. Pendency Order 01/19/2023 3 pages
Footnotes
[1] Personally identifiable information is attached as Appendix A, "Redaction Identification Page," to this decision and must be removed prior to public distribution.
[2] Exhibits shall be referred to as follows: "P" for Parents' Exhibit; "D" for District's or Department's Exhibits; and "IHO" for Impartial Hearing Officer's Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.
[3] A more detailed list of the admitted exhibits is attached as Appendix B, "Documentation Entered Into the Record," to this decision.