New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 225517

Student's Name: REDACTED ("Student")

Date of Birth: REDACTED

School District: [REDACTED]

Hearing Requested by: REDACTED ("Parent")

Request Date/Date Complaint Filed: March 29, 2022

Date(s) of Hearing: May 9, 2022*, July 19, 2022**, August 16, 2022**, August 23, 2022**

August 31, 2022**, October 14, 2022**, December 14, 2023, January 25, 2023

*Pre-Hearing Conference, ** Status Conference

Actual Record Closed Date: March 9, 2023

Date of Decision: March 9, 2023

Date of Distribution if Different than Decision Date: N/A

Hearing Officer: Stephanie Seto, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 9, 2022

For the Student:

REDACTED, J.D., Legal Assistant, Law Offices of REDACTED, Esq.

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

July 19, 2022

For the Student:

REDACTED, Esq., Law Offices of REDACTED, Esq.

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

August 16, 2022

For the Student:

REDACTED, Esq., Law Offices of REDACTED, Esq.

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

August 23, 2022

For the Student:

REDACTED, Esq., Law Offices of REDACTED, Esq.

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

August 31, 2022

For the Student:

REDACTED, Esq., Law Offices of REDACTED, Esq.

For the Department of Education:

REDACTED, District Representative

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

December 14, 2022

For the Student:

REDACTED, J.D., Legal Assistant, Law Offices of REDACTED, Esq.

For the Department of Education:

Dr. REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

January 24, 2023

For the Student:

REDACTED, J.D., Legal Assistant, Law Offices of REDACTED, Esq.

For the Department of Education:

REDACTED, District Representative

INTRODUCTION, BACKGROUND, PROCEDURAL HISTORY AND FINDINGS OF FACT

This matter comes before the undersigned Impartial Hearing Officer ("IHO") through the Parent's Due Process Complaint ("DPC") filed on or about March 29, 2022 (IHO Ex. VI- P-Ex. A – "March 2022 DPC") .^[1] This IHO was appointed on April 1, 2022 and the March 2022 DPC was identified as a potential refile of a DPC filed September 3, 2021in case #214263. See IHO Ex. II, DPC dated September 3, 2021 ("214263 DPC").

The March 2022 DPC alleges the New York City Department of Education (the "District" or "DOE") failed provide Student with a Free Appropriate Public Education ("FAPE") for the 2021-2022 school year. IHO Ex. VI-P Ex. A. Parent asserts District delayed convening an IEP meeting for the 2021-2022 school year and failed to develop an appropriate educational program for the 2021-2022 school year to recommend FAPE or services for Student. IHO Ex. VI-P Ex. A-2. The DPC seeks pendency based upon an October 17, 2019, Individualized Educational Services Plan (IESP) asserted as the last agreed program, which included: SETTS services, Direct Group Service, Yiddish, five periods a week and Speech-Language Therapy (S/L T), 1:1, Yiddish 2x30 minutes a week. IHO Ex. VI-P Ex. A-2. The March 2022 DPC's "presenting problem" is the Speech and Language Therapy ("S/L T") recommended in the last IESP from 2019 was not implemented by the District and Parent has been unable to locate a provider on their own. IHO Ex. VI-P Ex. A-2. The District has not implemented S/L T, and Parent has been unable to locate a S/L T provider. IHO Ex. VI-P-Ex. A-2. But, the March 2002 DPC also states Parent located an appropriate S/L T services provider independently for the 2021-2023 school year at their prevailing rate. IHO Ex. VI-P Ex. A-2. The DPC also reserved Parent's right to ask for compensatory S/L T for any periods not provided during the 2021-2022 school year. IHO Ex. VI-P Ex. A-2. The relief sought includes: (1) a finding of failure of the DOE to convene and recommend placement or services is a denial of FAPE; (2) the DOE should continue to fund the program in the 10/17/2019 IESP at provider's prevailing rate; (3) a bank of compensatory periods of SETSS and related services for parts of the 2021-2022 school year not serviced; (4) a bank of compensatory hours for all services Student is entitled under pendency for the entire 2021-2022 school year that were not services. IHO Ex. VI-P Ex. A-2-3.

There were several status conferences held in this matter before hearings were held in December 2022 and January 2023. Tr. 1-135. The record reflects repeated confusion from conference to conference and at the hearings on both the Parent's counsel's and District's side regarding the scope of Parent's REDACTEDs related to services, the relevant documents for pendency, the relevant IESP, whether and when Parent had implemented S/L T services for Student, the type of relief requested and District's requests on more than one occasion to proceed with a dismissal of the March 2022 DPC due to REDACTED preclusion related to a Resolution Agreement in DPC #214263 (a motion the District ultimately did not pursue) and also confusion over whether there were pendency agreements or orders that addressed all or part of the 2021-2022 school year. Tr. 1-134.

I address herein in the Procedural history, Background and in Findings of Facts, the case history and facts directly relevant to the parties' burdens of proof herein and ultimately, my analysis and decision in this matter.

#214263 DPC & Resolution Agreement

The March 2022 DPC is a refile of 214263 DPC and the two DPCs contain almost identical REDACTEDs for the 2021-2022 school year except for a change in wording concerning the "presenting problems". Compare IHO Ex. VI -P Ex. A and IHO Ex. II. Both DPCs make the same allegations regarding the District's failure to hold an IEP meeting for the 2021-2022 school year and sought the same relief related to pendency, implementation at an enhanced rate of the services in the 10/17/2019 IESP and a bank of compensatory services as necessary. Compare IHO Ex. VI- P Ex. A and IHO Ex. II. The March 2022 DPC in some portions limits the presenting problem complained of as to a failure to implement the S/L T recommended in the 10/17/19 IESP, "Parent has been unable to locate a Speech-Language Therapy provider" and also "Parent has located an appropriate Speech-Language Therapy services provider independently for the 2021-2022 school year at their prevailing rate." IHO Ex. VI- P Ex. A-2. But the March 2022 DPC also references all services in the 10/17/19 as necessary for implementation or a compensatory bank in the requests for pendency and relief. IHO Ex. VIP Ex. A-2.

#214263 DPC states the presenting problem is that Parent has been unable to locate a provider of their own with regard to the services recommended in the 10/17/19 IESP, Parent utilized District's online resources to try to find a SETTS and related services provider, but the providers they contacted were "unable to service their child, either due to the low standard rate or general dearth of providers in this area." IHO Ex. II. The #214263 DPC also states "Parent has located appropriate services providers independently for the 2021-2022 school year at their prevailing rate." IHO Ex. II.

In the first few conferences in this matter it was not clarified as to whether the March 2022 DPC was limited only to REDACTEDs regarding S/L T and did not involve SETTs (Tr. 1-75). It was clarified at a status conferences held on August 31, 2022 and thereafter that Parent was seeking funding at and enhanced rate only for S/L T and that Parent had implemented S/L T for the 2021-2022 unilaterally with a private provider at an enhanced rate. See Tr. 88-90, 99-106,

121 -133. It was never quite clarified on the record if Parent was seeking reimbursement or direct funding to provider or a combination for the S/L T services that Parent had implemented over the 2021-2022 school year. See Tr. 88-90, 99-106, 121 -133; see also, IHO Ex. IHO- P Ex. H.

As relevant background to understand this matter, in the prior 2021-2022 DPC - #214263 DPC, this IHO was not appointed until January 12, 2022, although the #214263 DPC was filed September 3, 2021. On January 24, 2022, a hearing was held in #214263 DPC, in which pendency was addressed. IHO Ex. IV – Transcript January 24, 2022 - #214263 DPC. The District brought to light the 10/17/2019 IEP was not the last agreed-upon program and there was an appealed Finding of Fact and Decision dated December 19, 2019 (12/19/19 FOFD). IHO Ex. IV; IHO Ex. V- FOFD 12/19/19. The 12/19/19 FOFD granted Student the same program set forth in the 10/17/19 IESP (Five periods of SETTS Yiddish and S/L T , Yiddish, 1:1 2x30 weekly) but set the allowable enhanced rate for the SETTS REDACTED of $130.0 per hour. See IHO Ex. V- FOFD 12/19/19. There was a dispute between the parties as to whether this IHO should include the specific rate ordered for SETTS in the 12/19/19 FOFD in a pendency order in #214263 DPC. See Ex. IV – Transcript.

A pendency order was never issued in #214263 DPC due to the timing of Parent's request to withdraw #214263 DPC without prejudice on February 2 and 3, 2022 by Parent's counsel via email. The District was given until February 7, 2022 to object or state opposition to the request to terminate the matter without prejudice, and District did not respond. Thereafter this IHO issued an Order of Termination without prejudice on February 7, 2022.

At the time of the first hearing in #214263 DPC, Parent and Parent's counsel had signed a "Resolution Agreement" in #214263 DPC dated November 30, 2021. See IHO Ex. I, Resolution Agreement dated 11/30/2021 executed by Parent 12/7/2021, Parent's Counsel 1/24/22 and District 1/30/2022. The parties agreed as a settlement of Student's educational program for the 2021-2022 school year Student was entitled to SETSS for the 2021-2022 school year to be funded by the District at the rate of $150.00 per session five times a week granting 180 days of service and 180 sessions to be completed between 9/13/2022 and 6/30/2022. IHO Ex. I. Although #214263 DPC sought S/L T services as part of Parent's 2021-2022 REDACTED the Resolution Agreement had no provisions for S/L T. IHO Ex. I. The parties agreed the "agreement is the complete settlement of all REDACTEDs contained in the impartial hearing request, dated 9/3/2021 and filed by the parent." IHO Ex. I. Within the Resolution Agreement, there is language that could have been chosen that would allow for a partial resolution. IHO Ex. I.

At the August 16, 2022 status conference, District expressed a desire to file a motion to dismiss the March 2022 DPC based upon REDACTED preclusion due to the Resolution Agreement (Tr. 52) and again in an email on September 20, 2022, but ultimately District did not submit such a motion. Tr. 1-134.

June 2021 IESP

The District raised the issue at the initial pre-hearing conference and after that that the REDACTED that there was a denial of FAPE due to failure to create an IESP for the 2021-2022 school year was incorrect and that an IESP for the 2021-2022 school year existed and was created in June of 2021, following a June 9, 2021 IESP meeting, with an implementation date in September 2021. Tr. 6 -112; IHO Ex. III, 6/9/21 IESP. Initially, at the May 9, 2022 pre-hearing conference Parent's counsel indicated the intent to amend the March 2022 DPC to reflect that there was a program created for the 2021-2022 school year. (Tr. 23). At the July 19, 2022, status conference Parent's counsel indicated that no amendment would be submitted and intended to go to a hearing on the merits. Tr. 31-32.

The June 2021 IESP set forth the same services program for Student as contained in the 10/19/2021 IESP and the 12/12/201 FOFD. See IHO Ex. III, 6/9/2021 IESP; IHO Ex. VII-P Ex. B, 10/17/19 IESP and IHO V, FOFD. The Resolution Agreement states that the Resolution Agreement is based upon the IESP dated 6/9/2021. IHO Ex. I. The 6/9/21 IESP provided does not have the signed signature page from the meeting for the CSE Team members and Mother and recounts Mother's comments in the body of the IESP and the validity of the June 2021 IESP was not disputed by Parent. Tr. 1-134; IHO Ex. I.

At the October 14, 2022 Status Conference the parties' plans for the hearing on the merits set for November 1, 2022 were discussed. Tr. 99-116. The District represented they would not put on a direct case but would cross-examine the Parent's witnesses. Tr. 99-109. Parent's representative was initially confused as to the type of case Parent planned to present but once reminded about the prior representations on the record Parent had implemented the S/L T services with a private provider and was seeking an enhanced rate, Parent's counsel represented Parent and Provider would witnesses along with documentary evidence. Tr. 99-109.

Due to District's request, the November 1, 2022 hearing on the merits was adjourned a few days prior. A new hearing date was set on December 14, 2022 with the assent of all parties for that date.

District did not put on a direct case. Tr. 99-134.

On December 14, 2022, REDACTED (REDACTED) appeared from Parent's counsel's office. REDACTED stated Parent was not prepared to go forward with their case due to issues with Parent's evidence disclosures and last-minute issues with appearance of Parent's witnesses, Mr. REDACTED ("Mr. REDACTED"), Student's S/L Therapist in 2021-2022 school year, and Mother, who had sudden unavailability due to inability to get off of work. Tr. 112-116. REDACTED stated Parent was not prepared to go forward with the hearing on the merits and stated "I think we will withdraw without prejudice." Tr. 114. This IHO stated she did not understand the basis for such a request considering the amount of time since the DPC was filed and the multiple dates the case had been on and extended. Tr. 114-115. This IHO indicated it seemed more appropriate to dismiss with prejudice due to the history of the case another refile would be inappropriate. Tr. 114-115. Parent was given another date to present their case, or it would be dismissed with prejudice if withdrawn. Tr. 115. The date of January 25, 2023 was chosen as a rescheduled date based upon District's and Mr. REDACTED availability. Tr. 116.

On January 25, 2023 District again did not present a case but repeated District's intent to cross-examine all of Parent's witnesses. Tr. 102-134. This IHO indicated she had questions for Parent's witnesses, as stated at the prior hearing date that was adjourned due to Parent's lack of witness. Tr. 102-134.

On January 25, 2023, REDACTED stated that Mr. REDACTED was "no longer willing to come on and testify" and confirmed that Mr. REDACTED was refusing to appear as a witness in this matter. Tr. 124-125. A conversation ensued in which I indicated considering what occurred at the prior hearing, the general history of the case, and the Resolution Agreement, another withdrawal without prejudice on this REDACTED related to Speech and Language Therapy for the 2021-2022 school year was not appropriate. Tr. 124-134.

The Parent had disclosed several exhibits to be entered as evidence, but many did not end up entered on the record. Parent did not offer the June 2021 IESP that undisputedly was the appropriate IESP for the 2021 -222 school year and instead offered as P Ex. B the 10/17/2021 IESP as the operative IESP as the basis of Student's mandated services, as stated in the affidavit of Parent ("Mother") that Parent also had ready to submit as an Exhibit/Testimony. Tr. 126; see IHO VII-P Ex. B, 10/17/19 IESP, IHO Ex. II, June 9, 2021 IESP and IHO Ex. XII- P Ex. H-1, Affidavit of Mother. In order for coherence and understanding of the determination in this matter the Parent's disclosed Exhibits have been entered as IHO Exhibits with the Parent's letter designation noted.

Placed into evidence during the hearing was the Contract Parent had signed with REDACTED (" ") (the agency that allegedly Mr. REDACTED provided Language Therapy through to Student) dated May 5, 2021 obligating Parent to pay if the DOE did not pay for the services. See P Ex. D. Mother swore she was unable to locate a S/L T provider at the DOE standard rate and the DOE did not make a S/L T provider available. IHO Ex. XII – P Ex. H. Mother also swore that REDACTED provided S/L T for the 2021-2022 school year to Student, she understood the May 5, 2021 contract with REDACTED obligated her to pay for the S/L T at the rate of $250.00 per hour, that paying for the services upfront would pose a financial hardship for her and she would not be able to pay without outside financial support. IHO Ex. XI- P Ex. H. She requested reimbursement at a reasonable market rate. IHO Ex. XII – P Ex. H. Also ready for submission as testimony was the affidavit of REDACTED, stated person in charge of finances at REDACTED, which states that REDACTED provided 2x30 minutes of S/L T a year at the rate of $250.00 "per service." IHO Ex. XII– P Ex. H.

Parent had also offered the following exhibits: credentials of Mr. REDACTED and a SETTS provider IHO Ex. IX- P Ex. E; a progress report of the SETTS provider dated June 15, 2022 (but no S/L T Progress Report), IHO Ex. X- P Ex. F; and DOE Impartial Hearing Order Implementation Unit Forms signed by a REDACTED with REDACTED listed as Agency and Mr. REDACTED as provider for 73 30-minute Speech sessions from September 9, 2021through June 26, 2022 at the rate of $200 per 30 minute session. IHO Ex. XI-P Ex. G.

It appeared Parent would be unable to prove their case without testimony from Mr. REDACTED to substantiate the appropriateness of the S/L Therapy, amount provided and enhanced rate; but REDACTED was given the option of making Parent and Mr. REDACTED available for cross-examination. Tr. 129. REDACTED declined to make Mr. REDACTED and Mother available for cross-examination and did not directly state if Mother and REDACTED were available. Tr. 130. REDACTED declined to move forward due to the fact Mr. REDACTED was refusing to testify at any time stating "I think we agree the case…cannot go forward. I don't think we are allowed to withdraw without prejudice at this point. I do not expect positive results from the fact our Speech and Language therapist is not available to testify." Tr. 130.

I draw a negative inference from the fact Mr. REDACTED, the stated S/L Therapist of Student for the 2021-2022 school year refused to testify on Student's behalf although two dates were set for him to testify with long lead times and Parent's counsel failed to notify this IHO until the date of the hearings extending out this matter for months. Further, I find an adverse inference that Parent did not appear on both December 14, 2022 and January 25, 2023 although a named witness, and no notice of her unavailability or nonappearance was given. The affidavits of Mother and REDACTED are not accepted as reliable testimony. They are submitted to inform these proceedings about the sworn statements that were to be offered along with the rest of Parent's prepared exhibits to inform the procedural history and factual findings in this matter.

There were no opening or closing statements in this matter.

The record was closed on March 9, 2023.

A list of the documentary evidence submitted is appended to this Order. The compliance date in this matter was extended multiple times at the request of the parties due to stated attempts to resolve the matter, the appearance of witnesses and for issuing a decision in this proceeding to prepare fully and time to obtain transcripts and issue a Finding of Fact and Decision in this matter.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, "IDEA"), 20 U.S.C. § 1400 et seq., and Article 89 of the New York State Education Law and its implementing regulations, 8 NYCRR § 200.5 et seq.

ISSUES

1.. Did the District offer Student a Special Education Program and the Speech-Language Educational Services mandated in the June 9, 2021 IESP?

2. Dis the Parent meet their burden that the alleged Speech-Language Therapy Parent unilaterally obtained was appropriate?

4. Do the Equities favor Parent?

CONCLUSIONS OF LAW

New York Law Extend Educational Services to Children with Disabilities Parentally Placed in Nonpublic School Under N.Y. Ed. Law § 3602-c.

The IDEA and New York State Education Law provides children with disabilities entitled to a Free Appropriate Public Education ("FAPE"). The local BOE must offer a FAPE to each student with a disability residing in the school district that requires special education services or programs. 20 U.S.C. § 1400 (d)(1)(A); N.Y. Ed. Law § 4402(2)(a).

The IDEA confers no individual entitlement to special education to students enrolled in nonpublic schools by their parents by their parents' choice, unrelated to any special education needs. See 34 CFR § 300.137(a)-(c). Districts are required by the IDEA to participate in a consultation process for making special education services available to students enrolled privately by their parents in nonpublic schools. Still, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if parent sought to enroll the student in a public school. ID; 34 CFR § 300.134; 300.138(b).

Under New York State Education Law § 3602-c ("3602-c"), unlike the provisions of the IDEA, parents of students with a disability, who have privately enrolled their child in a nonpublic school, may seek to obtain educational "services" for the student by filing a request for services in the district of location where the nonpublic school is located on or before the first day of June preceding the first day of the school year for which the request for services is made. See 3602-c. Under this law, the District's CSE must review the request for services and develop an IESP for a student based upon the student's individual needs in the same manner and with the same contents as an IEP. See, N.Y.S. Ed. Law § 3602-c(2)(b)(1); Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c, Memorandum from James P. DeLorenzo, re: Chapter 378 of the Laws of 2007, New York State Education Department, Sept 2007 ("Guidance Memo on 3602-c") https://www.p12.nysed.gov/specialed/publications/policy/documents/chapter-378-laws2007-guidance-on-nonpublic-placements.pdf.

Included in the definition of "services" under § 3602-c(1)(a) is "education for students with disabilities, and counseling, psychological and social work services related to such instruction provided during the regular school year for pupils enrolled in a nonpublic school located in a school district, provided that such instruction is given to pupils enrolled in the public schools of such district." "Education for students with disabilities" means "special education programs designed to serve persons who meet the definition of children with disabilities" set forth in the New York State Education Law. The Guidance Memo on § 3602-c advises that services covered by this section of the law are limited to those provided in programs operated during "the regular school year" and not summer programs. Guidance Memo on 3602-c, p. 14.

Under § 3602-c(2)(b)(1), the committee on special education (CSE) must "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 [emphasis added] as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district." "Equitable basis" means services provided to students with disabilities in parentally placed private schools in the same manner and range as compared to students with disabilities attending public or NYS-approved nonpublic schools located within the same school district, taking into account the student's need and the Student's placement in the nonpublic school program. Guidance Memo on 3602-c, pp. 10-11. A school district is "not required to provide greater services to a nonpublic student then a public-school student would receive under the Rowley standard." Id., at pp. 11-12.

Thus, a New York State resident student may be voluntarily enrolled by parent(s) in a non-public school. At the same time the student is also enrolled in the public school dtrict for the purpose of receiving special education programming under 3602-c. The public school district may be held accountable by submitting Due Process Complaint Notice to the school district of location and an impartial hearing. See Id. at 5.

While the statutory scheme of NYS Education Law § 3602-c places the responsibility of selecting and placing the Student in a nonpublic school on the parent, the implementation of the services called for by a student's IESP falls on the district as far as "boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent." See § 3602-c; see also, Application of Student with a Disability, SRO Appeal 16-008.

The decisions of the State Review Officers, while not binding, have repeatedly found that a school district in New York is required by law to locate and assign a student publicly provided teachers or services providers for dually enrolled students under N.Y. Ed. Law § 3602-c(2)(a). It may be permissible for a district to include the parent in the identification of a particular provider, especially if the parent is willing and able to do so, but it does not follow that the responsibility to redress a parents' inability to locate a provider is shifted permanently to the parent. See, SRO Appeal 16-008; Application of a Student with a Disability, SRO Appeal No. 20-042; Application of a Student with a Disability, SRO Appeal No. 20-094;Application of a Student with a Disability, SRO Appeal No. 20-141; Application of a Student with a Disability, SRO Appeal No. 21-101; Application of a Student with a Disability, SRO Appeal No. 21-119.

Application of Burlington-Carter Test in Circumstances in Which Parents Obtain Special Education Services for a Student that is Parentally Placed in a Non-Public School and Seek

Funding or Reimbursement for Such Special Education Services.

The State Review Officers (SRO) uniformly apply a Burlington-Carter test to determine if districts must fund special education services in cases falling under 3602-c where a parent has unilaterally provided special education services to their child to determine whether a district may be required to reimburse or fund the expenditures for the private educational services obtained by the parent unilaterally. See Burlington/Carter Test: Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep't of Ed., 471 Y.S. 359, 369-70 (1985), see also, R. E. v. New York City Dep't of Ed., 694 F.3d 167, 184-85 (2nd Cir. 2012); T. P. v. Mamaroneck Union Free Sch. Dist., 554 F. 3d 247, 252 (2d. Cir. 2009). The SROS have uniformly stated as a "practical matter this kind of dispute can really only be effectively examined using a Burlington/Carter unilateral placement framework." SRO Appeal No. 21-119, p. 11; see also, e.g., SRO Appeal No. 16-008, SRO Appeal No 20-042, SRO Appeal No 20-042, SRO Appeal No 20-094, SRO Appeal No 21-141. Reimbursement requires the school district to "belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. Burlington, 471 U.S. at 370-71; see 20 USC §1412 (a)(10) (c)(ii); 34 CFR § 300.148.

As in a Burlington/Carter case examined in New York, the initial burden of proof is on the school district during 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. NY Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. August 27, 2010).

These decisions are commonly referred to as the Burlington/Carter "three-prong" test or analysis to the question of whether a board of education has delivered a FAPE and whether it may be required to reimburse parents, as follows: (i) Prong 1- the school district's offered services or IEP were inadequate or inappropriate, i.e. the school district must prove it has provided student with FAPE;(ii) Prong 2 -the burden of proof is placed upon parents to prove the services selected by the parents were appropriate for the student; and (iii) Prong 3 a balancing of equitable considerations favor the parent(s)' claim for reimbursement. Id.

ANALYSIS

A. The District Did Not Prove That It Provided Student a FAPE With Regard to the Mandated Speech-Language Services for the 2021-2022 School Year.

The District did not put on a direct case and did not present evidence that it provided Student with the Speech-Language Therapy mandated in the June 2021 IESP. I note the March 2022 DPC allegation that no IEP meeting was held to create an IESP for the 2021-2022 school year, was proven false and later in these proceedings Parent's counsel did not dispute that there was an IESP meeting held for the 2021-2022 school year on June 9, 2021 which Mother attend and an IESP was created – the June 2021 IESP. Further evidence supports Parent's and Parent's Counsel familiarity with the June 2021 IESP as it is referenced as the basis of the 2021-2022 program student is entitled to in the Resolution Agreement. Therefore, it is undisputed that the mandate for Student's bi-weekly 1:1 S/L T in Yiddish 1:1 is based upon the June 2021 IESP, and the October 2019 IESP is not relevant nor are the claims the District failed to hold an IESP meeting or create an IESP for the 2021-2022 school year.

The parties did not dispute the appropriateness of the mandated S/L T services in the June 2021 IESP. Due to the District's failure to present sufficient evidence to show that the S/L T services offered in the June 2021 IESP was provided by the District, the District failed to prove it met it's burden that it appropriately met Student's needs and provided the S/L T services mandated for the 2021 -2022 school year

B. The Parent Did Not Prove the Appropriateness of the Unilaterally Obtained

Speech-Language Therapy.

Parent was given plenty of time and opportunity to provide witnesses and evidence that Student's special education needs concerning the mandated Speech-Language Therapy were met by the Speech Language therapist Mr. REDACTED and the providing agency REDACTED. Parent failed to put Mr. REDACTED on a s a witness to support that the speech-language therapy allegedly provided over the 2021-2022 school year was reasonably calculated to enable the student to receive educational benefit, support that the sessions actually occurred, provide any progress or information regarding Student's advancement or meeting of goals related to Speech and Language or that the services offered were specially designed to meet the unique needs of the Student which is what is required to show appropriateness under Prong II of the Burlington/Carter test. See Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364-365 (2d. Cir 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007).

A negative inference is drawn regarding the fact Mr. REDACTED will not testify as Parent has stated was the Speech-Language Provider for the 2021-2022 school year engaged through a contract Parent entered with REDACTED at an enhanced rate. Without Mr. REDACTED testimony (or any other reliable evidence regarding Student's actual Speech-Language sessions received and Student's performance with regard to Speech-Language at the beginning and end of 2021-2022 school year it is impossible to deduce the appropriateness of the program regardless that the parties agree that Student should have received S/L T twice a week 1:1 in Yiddish. Therefore, the Parent failed to establish that the alleged parentally obtained S/L T was appropriate and failed meet their burden for Prong II.

C. The Parent's Claim is not Supported By Equitable Considerations.

The final criterion for reimbursement is that Parent's claim must be supported by equitable considerations. Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185; M.C. v. Voluntown Bd. Of Educ., 226 F. 3d 60, 68 (2d Cir. 2000); Carter, 510 U.S. at 16.

By failing to present Mother and REDACTED for cross-examination after plenty of notice and last-minute adjournment and rescheduling, Parent failed to prove the equitable considerations weighed in favor of Parent. The Contract Parent entered into with REDACTED for privet S/L T services at the rate of $250.00 an hour was entered into a month before the IESP meeting was held for the 2021 -2022 school year in June of 2021. Also, this contract was entered into a full four months before Student would have started any S/L T for the 2021-2022 school year. Parent did not explain this in her affidavit and does not acknowledge the June 2021 IESP that was created pursuant to her involvement in the IESP meeting. The District repeatedly expressed their interest in examining Mother because Parent entered into this contract in May of 2021, which infers Parent did not intend to use an agency provided by the District or at District approved rates (and not enhanced rate). Therefore, a negative inference must be drawn by Mother's failure to appear at hearing and to the Contract entered into in early May 2021 as to equitable considerations regarding Parent's cooperation and intent to use any District supported S/L T agency.

There is no proof regarding the basis for the rate of $250.00 a session or hour. The documentary evidence shows several different enhanced rates: Parent agreed to $250.00 per hour, REDACTED's affidavit swears to the rate of $250.00 per session, which would be $250.00 per 30 minutes, and the District Invoices allegedly signed by REDACTED (electronic signature) has $200.00 per hour, so the actual enhanced rate or "market rate" sought is unclear.

When a Parent intends to obtain private services and request public funding a ten-day notice should be supplied to the District and reimbursement for the unilateral placement at an enhanced rate may be reduced or denied due to failure to give a ten-day notice. S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-63 (S.D.N.Y. 2009). The Parent supplied no such ten-day notice in their evidence prepared for hearing. The contract with REDACTED does not have a rescission clause if the District provided the services for S/L T that were mandated, and Parent signed this contract even before the 2021-2022 services were mandated in the June 2021 IEP.

Finally, Parent never clarified whether they were seeking funding or reimbursement. Parent's affidavit states reimbursement while the invoices prepared by REDACTED/Mr. REDACTED sought direct payment from the District.

D. Requested Relief Claim Precluded by the Resolution Agreement.

Parent's request for funding of the S/L T services for the 2021-2022 school year is precluded by the Resolution Agreement because the Resolution Agreement was a "complete settlement of claims" raise in the September 3, 2021 DPC #214263. DPC #214263 clearly included the S/L T claims for the 2021-2022 school year. Therefore, the parent waived those claims when entering into the Resolution Agreement, and the claim is claim precluded. State regulations and New York Law provide such an agreement is enforceable and legally binding.

The District brought up the claim preclusion defense moving on claim preclusion but never actually proceeded with such a motion. Considering Parent's counsel sought to once again withdraw the same claim without prejudice after failing to alert the IHO they could not bring their witnesses, including Mr. REDACTED would not ever appear at hearing, there was no basis to allow the Parent to bring this claim again, especially as the Parent had previously waived such a claim.

ORDER

Based upon the above History of the Case, Findings of Fact and Conclusions of Law, it is hereby ordered:

IT IS HEREBY ORDERED that the Parent's request for relief under the Due Process Complaint is denied.

DATED: March 9, 2023

Stephanie Seto, Esq.

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 B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

D. Contract 5/5/2021 1 page

IHO'S EXHIBITS

I. Resolution Agreement Dates Various 2 pages

II. DPC Case 214263 9/3/2021 6 pages

III. IESP 6/9/2021 9 pages

IV. Transcript Case 214263 V. FOFD 12/19/19 1/24/22

VI. P Ex. A- DPC 3/29/22 6 pages

VII. P Ex. B- IESP 10/17/19 8 pages

VIII. P Ex. C- Affidavit of REDACTED 12/13/2022 1 page

IX. P Ex. E-Credentials N/A 3 pages

X. P Ex. F- Progress Report 6/15/2022 5 pages

XII. XI. P Ex. G – 21-22 Invoices S/L for DOE Implementation Var Dates 10 P Ex. H – Mother's Affidavit 12/13/2022 2 pages

Footnotes

[1] Due to a great deal of confusion in this matter much of the evidence known and shared with both parties and the IHO and discussed in the proceedings was not entered during hearings. Exhibits shall be referred to as follows: "P" for Parent Exhibit; "and "IHO" for the Impartial Hearing Officer's exhibits. During the hearing on January 25, 2023 P Ex. D was entered into the record as well as IHO Ex. I-III. Herein I entered several of the Parent's disclosed exhibits for full understanding and explanation of the matter and those exhibits are referenced as IHO Ex. ___- P Ex. ___.