New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 225790

Student’s Name: REDACTED

(hereinafter known as “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: REDACTED

(hereinafter known as “Parent”)

Dates of Hearing July 29, 2022

September 12, 2022

Date of Decision October 7, 2022

Actual Record Closed Date: September 25, 2022

Date of Compliance: October 23, 2022

Hearing Officer: Rachel Gibbons, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 29, 2022

For the Student:

REDACTED Attorney (via videoconference platform)

For the NYC Department of Education:

REDACTED District Representative (via videoconference platform)

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 12, 2022

For the Student:

REDACTED Attorney (via videoconference platform)

Parent Parent (via videoconference platform)

REDACTED Comptroller (via videoconference platform)

REDACTED SETSS Provider (via videoconference platform)

For the NYC Department of Education:

None

INTRODUCTION AND PROCEDURAL BACKGROUND

This proceeding was brought in accordance with the Individuals with Disabilities Education Act (“IDEA”), the New York State Education Law Article 89 and §3602-c by the Parent of the Student, a sixteen-year-old child with a disability. On April 11, 2022 the Parent filed a Due Process Complaint (“Complaint”) against the New York City Department of Education (“District” or “DOE”) which alleged, inter alia, that the District failed to provide the Student with a free appropriate public education (“FAPE”) for the 2021-2022 school year. This Hearing Officer (“IHO”) was appointed to this matter on June 16, 2022 pursuant to the rescindment of the prior IHO.

A prehearing conference was held on June 28, 2022. A due process hearing was held on July 29, 2022 and September 12, 2022. The Parent submitted six exhibits on July 29, 2022, one exhibit on September 12, 2022, and two exhibits on September 22, 2022. All were entered into evidence. The Parent presented three witnesses: herself; REDACTED the Comptroller of REDACTED, the agency that provided Special Education Teacher Support Services (“SETSS”) to the Student during the 2021-2022 school year (“Agency”); and REDACTED, the Student’s SETSS provider (“SETSS Provider”). The District did not present a case nor defend. The District submitted one exhibit which was not admitted into evidence, as the District did not appear at the September 12, 2022 hearing date dedicated to the case-in-chief. The compliance date was extended due to witness availability and to allow requested evidence to be submitted after hearing. The record was closed on September 25, 2022. The final date of compliance is October 23, 2022.

ISSUES PRESENTED

• • Whether the District provided the Student with a FAPE for the 2021-2022 school year.
• • Whether the Parent’s unilaterally obtained program for the 2021-2022 school year is appropriate.
• • Whether there are any equitable considerations that would reduce the amount of any order for District reimbursement or payment for special education and related services.

APPLICABLE STANDARDS

IDEA Generally The IDEA (20 U.S.C. §§1400-1482) was enacted primarily (1) to ensure that students with disabilities have available to them a free appropriate public education which is designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to protect the rights of students with disabilities and the parents of such students. (20 U.S.C. § 1400(d)(1)(A)-(B); see generally, Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982)). A FAPE consists of special education and related services designed to meet a student’s unique needs which are provided in conformity with a written individualized education program. (See 20 U.S.C. § 1401(9)). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits or the IEP is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” (See Rowley, at 192).

The Supreme Court recently clarified the substantive standard for determining whether a child’s IEP offered a FAPE. The Court held that “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” (Endrew F. ex rel. Student F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017)). The Court emphasized the text of the IDEA itself and stated:

A focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” though an “[i]ndividualized education program” §§1401(29), (14) (emphasis added). An IEP is not a form document. It is constructed only after careful consideration of the child’s present level of achievement, disability and potential for growth. (Endrew F. at 999).

The Court continued “[A child’s] IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” (Endrew F. at 1000).

An appropriate IEP must include: (a) a statement of the child’s present level of academic achievement, functional performance and how the child’s disability affects the child’s involvement and progress in the general education curriculum; (b) a statement of measurable annual academic and functional goals; (c) how a child’s progress towards those goals will be measured; (d) a statement of the special education and related services to be provided to the child; (e) an explanation of the extent to which the child will participate with nondisabled students in school; and (f) the projected date for the start of services and the duration. (34 CFR § 300.320(a); 8 NYCRR 200.4(d)(2)). An IEP must be developed collaboratively, by a team that includes the child’s parents, specific teachers, a school district representative and someone who can interpret evaluations. (34 CFR § 300.321, Educ. Law §4402(a)). The “core of the statute... is the cooperative process that [IDEA] establishes between parents and schools.” (Schaffer v. Weast, 546 U.S. 49, 53 (2005)). The Second Circuit has stated that a district “must produce, in writing, an [IEP] that ‘describes the specially designed instruction and services that will enable the child to meet’ stated educational objectives and is reasonably calculated to give educational benefits to the child.” (M.W. ex rel S.W. v. NYC Dept. of Educ., 775 F.3d 131, 135 (2d Cir. 2013) (Quoting R.E. v. NYC Dept. of Ed., 694 F.3d 167 (2d Cir. 2012)).

“The importance Congress attached to the procedural safeguards [in IDEA] cannot be gainsaid.” (See R.E. at 189-190). A procedural violation of the IDEA entitles a parent to relief only if it: “(I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” (20 U.S.C. § 1415(f)(3)(E)(ii); see P. v. West Hartford Bd of Educ., 885 F.3d 735, 748-749 (2d Cir. 2018); citing A.M. v. N.Y. City Dep't of Educ., 845 F.3d 523, 535 (2d Cir. 2017). “Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” (See R.E., 694 F.3d at 190.

It is important to note that school districts are not required to "maximize" the potential of students with disabilities. (Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003)). The IDEA ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)). In addition, a child with a disability is entitled to a FAPE in the least restrictive environment (“LRE”). (20 U.S.C. §1401(9) and 34 CFR §300.17. See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998)).

Burden of Proof 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.^[1] If the evidence is evenly balanced, the party with the burden of persuasion must lose. ^[2]

Dual Enrollment Under §3602-c

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. State guidance reflects that under §3602-c a students are entitled to receive special education services according to an Individualized Education Services Program (“IESP”) while they receive general education from the nonpublic school where their parents enrolled them.^[3] The State guidance defines the term “equitable basis” as provided “in the same manner,” “based on need” and selected from “the same range of services provided by the district to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program.”^[4] 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.

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. (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).

Tuition Reimbursement In Burlington School Comm v. Dept of Education, 471 U.S. 359 (1985), the Court determined that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. In cases where the relief sought is tuition reimbursement, the applicable three-prong analysis is contained in Burlington and its progeny. (See Florence County School Dist. Four v. Carter, 510 U.S. 7 (1993)). 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.

• • FINDINGS OF FACT
• • The Student attends a private parochial school. (Par. Ex. A p. 1; Ex. G ¶ 5). The DOE developed an Individualized Education Services Program (“IESP”) on September 17, 2020 which recommended: speech-language therapy (“SLT”), individual service, twice weekly for 30-minute sessions; occupational therapy (“OT”), individual service, twice weekly for 30-minute sessions; counseling services, individual service, once weekly for a 30-minute period; and counseling services, group service, once weekly for a 30-minute period. (Par. Ex. B p. 8). The Parent disagreed with the 2020 IESP and entered into an agreement with the Agency to provide the Student with SETSS during the 2021-2022 school year. (Tr. 37, 40; Par. Ex. A pp. 1-2; Par. Ex. H). The Parent testified that she is unable to pay for the services. (Tr. 41-42; Par. Ex. I).

The Comptroller testified via affidavit that the Student received five hours per week of SETSS services for the 2021-2022 school year, for which the Agency charges $180 per hour. (Par. Ex. D ¶¶ 2, 5). The Agency provided the Student with 200 hours of SETSS during the 2021-2022 school year at a cost of $36,000. (Id. at ¶¶ 6-7). The Student’s SETSS provider was a certified special education teacher for students from birth through the second grade. (Par. Ex. D ¶ 5; Ex. E; Ex. G ¶ 1). The SETSS provider has provided 1:1 support to the Student for the past two years. (Par. Ex. G ¶ 5). The Student has difficulty with attention, focus, class participation, and classroom behavior. (Id. ¶ 6). The SETSS provider opined that the Student needed five hours of SETSS per week so he could “adequately function in a classroom” and that “he could not make meaningful progress without those 5 periods of SETSS.” (Par. Ex. G ¶ 8). The provider stated that the Student made “significant progress” during the 2021-2022 school year. (Id. ¶ 7).

The District’s Provision of FAPE The threshold issue in this case is whether or not the District provided or offered a FAPE for this student during for the 2021-2022 school year. The District presented no witnesses nor evidence and failed to appear at hearing for the case-in-chief. In addition, the District apparently failed to develop an IESP or IEP for the 2021-2022 school year. (Tr. 46). The District has thus failed to satisfy its burden that it provided or offered a FAPE to the Student for the 2021-2022 school year. The Parent has prevailed on Prong I of the Burlington/Carter analysis.

Appropriateness of the unilaterally obtained SETSS services

This Parent also prevails on the question of the appropriateness of the unilaterally obtained SETSS instruction, as she submitted evidence that the Student has academic challenges and needed the SETSS services as provided by the Agency in order to make progress. (Par. Exs. G; F). The unilaterally obtained SETSS were appropriate according to a Burlington/Carter analysis. Prong II has been satisfied.

Equitable Considerations The Complaint was filed on April 11, 2022. No ten-day notice was provided by the Parent. The Parent has requested a remedy of retroactive direct payment in this matter. The Second Circuit has held that 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. (E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014); See also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011)). ^[5] E.M. v. Dep’t Educ. states “Indeed, where the equities call for it, direct payment fits comfortably within the Burlington-Carter framework.” (758 F. Supp. 2d at 453).

At hearing, this IHO requested a copy of the agreement between the Parent and Agency along with documentary evidence that the Parent cannot/could not afford to pay the tuition “up front.” (Tr. 40-43). The direct examination had consisted of only twelve questions. (Tr. 37-39). The Parent testified that she had agreed to pay the Agency and she knew she would be responsible for payment if she did not prevail in the instant matter. (Tr. 38). The Parent had not provided a copy of any agreement with the Agency nor did she testify on direct as to income constraints that prevented her from paying directly for the SETSS. This IHO followed up with questions to develop the record and requested documentary evidence. (Tr. 39-43). When asked for a copy of a redacted tax return the Parent stated “Why can’t you trust me? I’m not giving you my personal information. I obviously can’t afford it or I would have paid for it.” (Tr. 42). This IHO made clear that she was seeking “documents that reinforce and back up [the Parent’s] attestation that [she] cannot afford to pay for these services up front.” (Tr. 43.)

The Parent, through her attorney, later provided two additional exhibits: a copy of an agreement (“SETSS Contract”) and an affirmation by the Parent that she was “unable to afford the cost of the SETSS that [the Student] received during the 2021-2022 school year.” (Par. Exs. H, I). Apart from the affirmation, which is essentially the same information the Parent provided at hearing, no evidence was submitted regarding the Parent’s and/or the household income. The Parent has requested that the DOE pay the sum of $36,000.00 directly to the Agency as relief. The Parent, however, has declined to provide documentary evidence that she lacked the financial resources to pay for the SETSS services, thus this IHO will not order direct payment.

Related Services The Parent’s Complaint requested an award of “all related services set forth on the Student’s last IESP for the 2021-2022 school year and related services authorizations for such services if require by the Parent.” There is no evidence demonstrating that any of related services were or were not provided. If the recommended services were not provided or had been obtained unilaterally, the proper remedy would be in the form of compensatory education, direct payment or reimbursement for the services. The Parent has not requested compensatory education nor has she requested that the District directly pay or reimburse for unilaterally obtained services.

ORDER

NOW THEREFORE BASED ON THE FOREGOING, it is

ORDERED that the DOE failed to provide a FAPE to the Student for the 2021-2022 school year; and it is further;

ORDERED that the District will not directly fund the Special Education Teacher Support Services the Parent obtained for the Student during the 2021-2022 school year, and it is further;

ORDERED that the District shall reimburse the Parent upon proof of her payment to the Agency for the 200 hours of Special Education Teacher Support Services the Student received during the 2021-2022 school year and it is further;

ORDERED that all relief not specifically granted herein is DENIED.

Dated: October 7, 2022

Rachel Gibbons

Rachel Gibbons, Esq.

Impartial Hearing Officer

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A. Request for due process proceeding and notice of appearance 4/11/22 9

B. IESP 9/17/20 11

C. Parent’s call list 8/25/21 1

D. Affirmation of services by REDACTED 7/21/22 2

E. Certificate information for SETSS providers 2020/21 2

F. Progress reports 6/2022 4

G. Affidavit of provider 9/09/22 3

H. SETSS contract 8/24/22 2

I. Parent’s affirmation of inability to pay 9/21/22 1

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] See Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993).

[2] Director, Office of Worker’s Compensation Programs v. Greenwich Colliers, 512 U.S. 267, 281 (1994).

[3] (“Chapter 78 of the Laws of 2007 – 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,” Attachment 1, preface, VESID Memo Sept. 2007).

[4] (Id., Attachment 1 p. 11).

[5] The records in these two cases provided the courts with information regarding the financial resources of the parents. In E.M v. Dep’t of Educ., the Second Circuit referenced the underlying record which indicated the student’s “household income during the relevant period was less than $15,000.00 per year.” (E.M v. Dep’t of Educ., 758 F.3d at 447). In Mr. and Mrs. A., the district court noted that the parents’ income was $64,000.00 per year and the tuition was $84,000 per year. (769 F. Supp. 2d at 411).