New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 565219 - NYC: 220671

FINDINGS OF FACT AND DECISION

Case Number: 220671

Student’s Name: [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: December 17, 2021 January 19, 2022

March 4, 2022

March 29, 2022

Actual Record Close Date: April 21, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

December 17, 2021 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

January 31, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

March 4, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

March 29, 2022 For the Parent:

[REDACTED], Esq.

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

[REDACTED], District Representative

On December 6, 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20 U.S.C. §1415(f), in the matter of [REDACTED] [REDACTED] after the appointment of another hearing officer was rescinded.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 November 1, 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 implement the IESP developed for [REDACTED], and seeking funding for three hours per week of SETSS in [REDACTED] 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 December 17, 2021. At the prehearing conference, the parties discussed consolidating this matter and another matter involving [REDACTED]. I issued an Order declining to consolidated the two matters for the reasons set forth in that Order.

The hearing commenced on January 31 and was continued on March 4 and 29. The DOE did not present the testimony of any witnesses but did offer one document in evidence. The Department Representative stated that since the parties agreed on the services that [REDACTED] is mandated to receive, the Department would not be presenting any witnesses. Tr. 51. The Department objected only to the rate of $182.00 per hour charged by the agency, Yes I Can, for providing SETSS to [REDACTED] and argued that the total number of SETSS hours [REDACTED] is entitled to for the 2021-2012 school year is 108 hours. Tr. 51, 53-54, 76-77; Ex. 1.

Parent withdrew the claim for compensatory services. Tr. 52.

Extensions of the compliance date were requested by the parties and granted by written Orders of Extension dated December 17, 2021 and January 31, March 4 and March 29, 2022.

The record closed on April 21, 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 21, 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 girl whose disability, for the purposes of the IDEA, is classified as learning disability. Parent’s Ex. B at 1.
• • [REDACTED] attends fifth grade mainstream classes at a private religious school, [REDACTED] [REDACTED], in [REDACTED]. Tr. 63; Ex. A at 1.
• • [REDACTED] struggles with acting-out behaviors, frustration, reading fluency and accuracy, reading comprehension, math, writing, following directions, and expressive language. Tr. 63-66; Ex. B at 2-3; Ex. C at ⁋ 31; Ex. D.
• • During the 2020-2021 school year, [REDACTED]’s mother referred [REDACTED] to the DOE for an evaluation. Tr. 66.
• • On December 22, 2020, the DOE’s CSE convened a meeting to develop an IESP for [REDACTED]. Parent’s Ex. B. [REDACTED]’s mother participated in this meeting. Ex. B.
• • The IESP recommends the following program for [REDACTED]: SETSS, three periods per week as a group service in [REDACTED]. Parent’s Ex. B at 7.
• • The IESP mandated that the services be implemented on January 4, 2021. Ex. B at 1.
• • After the CSE meeting, [REDACTED]’s parent “didn’t hear from the DOE,” and the DOE did not implement any services for [REDACTED]. Tr. 67.
• • The DOE prepared a form titled SETSS Authorization Form for [REDACTED] dated September 1, 2021. Ex. 1.
• • [REDACTED]’s mother did not recall whether she received a P-3 letter from the DOE, reached out to SETSS providers on the DOE list, or tried to contact the CSE about a provider. Tr. 69-70. She did, however, recall making telephone calls to try to locate a SETSS provider for [REDACTED]. Tr. 70-71.
• • It is undisputed that the DOE has not provided SETSS for [REDACTED] for the 2021-2022 school year.
• • [REDACTED]’s mother arranged with an agency called Yes I Can to provide SETSS to [REDACTED]. Tr. 67.
• • [REDACTED]’s mother signed a document on Yes I Can letterhead, dated October 6, 2021, to arrange for Yes I Can to provide special education services to [REDACTED]. In this document, [REDACTED]’s mother agreed to be responsible for the costs of such services for the 2021-2022 school year.
• • Yes I Can is a private agency that provides special education services, including SETSS, to students in mainstream classrooms in New York City. Ex. C at ⁋ 8.
• • For the 2021-2022 school year, Yes I Can has been providing three hours per week of SETSS to [REDACTED] at the cost of $182.00 per hour. Parent’s Ex. C at ⁋⁋ 22-24, 30.
• • [REDACTED] responded well to the SETSS provided by Yes I Can. Tr. 67-68. Her frustration level and acting-out behaviors are reduced because the SETSS provider is addressing “an underlying academic issue,” and she is making academic progress. Tr. 68.
• • The SETSS provider is working with [REDACTED] on improving reading accuracy and fluency, phonics, reading comprehension, math problem solving, multiplication, division, fractions, operations with fractions, expressive language, writing and spelling. Ex. D.
• • [REDACTED] has demonstrated progress in reading (decoding, fluency and comprehension), math, and writing sentences and paragraphs. Ex. C at ⁋ 36; Ex. D.
• • Yes I Can charges $182.00 for SETSS in order to cover the costs of the SETSS provider (who is a certified special education teacher that Yes I Can pays $92.00 per hour), 1:1 supervision of the SETSS provider, educational resources and support, professional development and materials, employment taxes, administrative costs and overhead costs. Ex. C at ⁋⁋ 15-21, 25-26; Ex. F.
• • Yes I Can’s administrator asserted that $182.00 per hour for SETSS is “within the general market rate” as compared to the rates charged by other agencies in the New York City area. Ex. C at ⁋ 14.

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 the testimony of any witnesses and offered in evidence a form authorizing SETSS for [REDACTED], but no support for the proposition that the form was mailed to her family and no argument with respect to the legal import of such a form. It is undisputed that the DOE has not provided [REDACTED] with SETSS during the 2021-2022 school year, as mandated by the IESP that the DOE prepared for her in December 2020.. The parties do not dispute that the December 2020 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 Yes I Can.

The only issues in dispute are the rate charged by Yes I Can for SETSS and the lack of evidence of the search undertaken by [REDACTED]’s mother for a SETSS provider from the DOE list. The DOE seems to argue that [REDACTED]’s parent did not execute a diligent search for a SETSS provider on the DOE approved list. However, [REDACTED]’s parent was not required to undertake such a search because the DOE was responsible for providing a SETSS provider for [REDACTED]. This is what “public” means in the term “FAPE:” the school district provides the service. Giving parents a list of possible providers—or even a form that says to the family, in essence, “go out an obtain a district-approved provider on your own”— 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 Yes I Can’s services. The generic and conclusory testimony of the Yes I Can’s administrator is not helpful to me, and 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, did not provide SETSS to [REDACTED] during the 2021-2022 school year; and (2) the record does not support a particular rate.

The DOE asks that services, if awarded, should be for 180 days of services because there are 36 weeks in a 10-month school year. The DOE should have provided [REDACTED] with SETSS (three periods per week) from the beginning of the school year. 108 hours is the proper number of hours of SETTS for [REDACTED] for the 2021-2022 because there are 36 weeks in a 10-month school year Even though a private school may have more weeks 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.

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

1. The Department of Education shall fund three hours per week of SETSS in [REDACTED] for [REDACTED] provided by Yes I Can for 2021-2022 10-month school year. The total number of SETSS hours for which the Department is responsible for funding shall not exceed 108 hours.

2. The Department of Education shall pay a reasonable market rate, as determined by the DOE’s Implementation Unit, for the aforementioned 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.

Dated: April 22, 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’s Exhibits

• • Impartial Hearing Request 11/1/2021 3 pages
• • IESP 12/22/2020 10 pages
• • Provider Affidavit 3/24/2022 4 pages
• • Progress Report 2/17/2022 6 pages
• • YIC Contract 10/6/2022 3 pages
• • Teacher Credentials undated 1 page DOE Exhibit 1. SETSS Authorization Form 9/1/2021 2 pages