New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 564483 - NYC: 220062

FINDINGS OF FACT AND DECISION

Case Number: 220062

Student’s Name: [REDACTED] [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: November 1, 2021

December 7, 2021

January 12, 2022

February 17, 2022

March 24, 2022

Actual Record Close Date: April 5, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

November 1, 2021 For the Parent:

[REDACTED], Esq.

For the Department:

None

December 7, 2021 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

January 12, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

February 17, 2022 For the Parent:

[REDACTED], Esq.

[REDACTED], Parent

For the Department:

[REDACTED], District Representative

March 24, 2022 For the Parent:

[REDACTED], Esq.

[REDACTED], Esq.

[REDACTED], Parent

[REDACTED], Administrator, [REDACTED] For the Department:

[REDACTED], District Representative

On October 22, 2021, 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20 U.S.C. §1415(f), in the matter of [REDACTED] [REDACTED] after the appointment of another hearing officer was rescinded.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 21, 2021, challenging the Department of Education’s failure to offer [REDACTED] a free appropriate public education for the 2021-2022 school year, specifically the failure to conduct an annual IESP meeting for [REDACTED], and seeking funding for five hours per week of SETSS at “an enhanced rate” and related services for [REDACTED] for the 2021-2022 school year. Parent’s Ex. A at 1-2.

A pre-hearing conference was conducted on November 1, 2021. At the pre-hearing conference, Parent’s counsel indicated that she would be forwarding a pendency agreement to the District Representative and the need for a pendency hearing was obviated.

The hearing on the merits was conducted on December 7, 2021 and January 12, February 17, and March 24, 2022. The DOE did not present the testimony of any witnesses nor seek to introduce any documents into evidence. Tr. 18-19, 22. The DOE representative stated that the DOE’s position was “simply that the Parent has not made an effort to significantly search for a provider.” Tr. 21.

Extensions of the compliance date were requested and granted by written Orders of Extension dated December 7, 2021 and January 12, February 17 and March 24, 2022.

The record closed on April 5, 2022, upon the Hearing Officer’s receipt of the transcript of the final day of the hearing, and the Actual Record Close Date is April 5, 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 an [REDACTED]-year-old boy whose disability, for the purposes of the IDEA, is classified as speech or language impairment. Parent’s Ex. B at 1.
• • [REDACTED] attends mainstream classes at a private religious school, [REDACTED], in [REDACTED]. Parent’s Ex. A at 1.
• • [REDACTED] struggles with academics, comprehension, vocabulary, expressive language and following directions. Ex. B at 1-3.
• • On September 19, 2019, the Department’s CSE convened a meeting to develop an IESP for [REDACTED]. Parent’s Ex. B.
• • The IESP recommends the following program for [REDACTED]: SETSS, five periods per week as a group service; and Speech-Language Therapy, two 30-minute sessions per week. Parent’s Ex. B at 7.
• • It is undisputed that the DOE did not provide a SETSS provider for [REDACTED] for the 2021-2022 school year.
• • By a document dated October 12, 2021, [REDACTED]’s mother arranged with an agency called [REDACTED], through a document labelled “Parent Agreement,” for [REDACTED] to provide SETSS to [REDACTED]. Ex. D. In this document, [REDACTED]’s mother agreed to “contract[] for” SETSS to be provided by [REDACTED] at an “enhanced rate” and to be responsible for the costs of such services for the 2021-2022 school year. Parent’s Ex. D at 2; Tr. 50-51.
• • Between October 12 and October 16, 2021, [REDACTED]’s mother made telephone calls to fifteen SETSS providers. Many of the providers did not answer her calls; some of the telephone numbers were not in service; three providers stated that they were not available. No provider stated that he or she was available to work with [REDACTED]. Parent’s Ex. D; Tr. 52-53.
• • Since October 21, 2021, [REDACTED] has been providing five hours per week of SETSS to [REDACTED] at the cost of $150.00 per hour. Parent’s Ex. D; Tr. 64.
• • [REDACTED] charges $150.00 for SETSS in order to cover the costs of the SETSS provider (who [REDACTED] pays $88.00 per hour), a “team” of supervisors, professional development, educational materials, software, and “case management.” Tr. 59-61.
• • [REDACTED]’s administrator asserted that $150.00 per hour was a “fair market rate” as compared to the rates charged by other agencies. Tr. 60.
• • [REDACTED]’s parent observed that SETSS has been helping [REDACTED] this year. Tr. 53.
• • [REDACTED]’s parent would not be able to pay the entire cost of [REDACTED]’s SETSS services on her own. Tr. 51.

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).

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 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. 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.

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.

Here, the DOE did not present testimony or documentary evidence. It is undisputed that the DOE did not provide [REDACTED] with SETSS, as mandated by the 2019 IESP that the DOE prepared for him, during the 2021-2022 school year. The parties do not dispute that the 2019 IESP is the currently operative IEP, and the DOE does not dispute that since [REDACTED] should have received SETSS as mandated by the this IESP. Since the DOE was required by Education Law § 3602-c to provide those services, the DOE should be required, at this time, to provide funding for the services that [REDACTED]’s parents secured through [REDACTED].

The only issues in dispute are the rate charged by [REDACTED] for SETSS and the alleged diligence (or lack thereof) of the search undertaken by [REDACTED]’s mother for a SETSS provider from the DOE list. The DOE argues that the equities compel dismissal of Parent’s claim because she did not execute a diligent search for a DOE approved provider. Parent argues that she undertook a search that she was not even required to undertake because the DOE was responsible for providing a SETSS provider for [REDACTED]. The Parent is correct. This is what “public” means in FAPE: the school district provides the service. Giving parents a list is not sufficient for a school district to fulfill the “public” requirement of a FAPE.

I am also called upon to determine whether the DOE should be required to pay an “enhanced rate” for [REDACTED]’s services. The generic and conclusory testimony of the [REDACTED]’s administrator is not helpful to me. The DOE provided me with no evidence regarding what would constitute an appropriate rate.

As a result, I will exercise my equitable authority to craft a remedy considering the following factors: (1) my conclusion that the DOE, the party with the burden of proof, that the DOE did not provide SETSS to [REDACTED] during the 2021-2022 school year; and (2) the record does not support a particular rate. There are 36 weeks in a 10-month school year. [REDACTED] started providing services to [REDACTED] on October 21, 2021. The DOE should have provided [REDACTED] with SETSS from the beginning of the school year. 180 hours is the proper number of hours of SETTS for [REDACTED] for the 2021-2022 because there are 180 days in a 10-month school year Even though a private school may have more days in its school calendar, 3602-c relates to “equitable” services—as in services equitably-related to services received by students attending public schools.

Given the testimony and the documentary evidence in the record, as well as the arguments presented by the parties, I will order services as described in the order below.

Since [REDACTED]’s parent did not present any evidence or argument with respect to related services claims, I deem those claims abandoned.

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

• • The Department of Education shall fund five hours per week of SETSS for [REDACTED] provided by [REDACTED] for the time period from October 21, 2021 to the end of the 2021-2022 10-month school year. The Department shall provide for or fund compensatory SETSS for [REDACTED] for the time period from the start of the school year in September 2021 through October 20, 2021. The total number of SETSS hours for which the Department is responsible for providing and/or funding shall not exceed 180 hours.
• • The Department of Education shall pay a reasonable market rate, as determined by the DOE’s Implementation Unit, for the aformentioned SETSS; and, in any event, that rate shall not exceed the rates that the selected provider has charged for SETSS delivered to students in New York City during the 2021-2022 school year.
• • The Department shall, if it has not already done so in the past 12 months, conduct promptly an annual or triennial (as appropriate) review meeting for [REDACTED].

Dated: April 18, 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 record

Ex.

Date

Document

Pages

A 1/21/21 Impartial Hearing Request 4

B 9/19/19 IESP 9

C 10/12/21 Call Log 1

D 10/12/21 Parent Agreement 2

E 1/6/22 Affidavit of Services 1