New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 573579 - NYC: 226738

FINDINGS OF FACT AND DECISION

Case Number: 226738

Student’s Name: REDACTED

Hearing Requested By: Parent

Dates of Hearing: July 8, 2022

July 28, 2022

Actual Record Close Date: August 5, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

July 8, 2022 For the Parent:

REDACTED, Parent For the Department:

REDACTED, Esq.

July 28, 2022 For the Parent:

REDACTED, Parent

REDACTED, SETSS Provider For the Department:

REDACTED, Esq.

On June 30, 2022, 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’s parent (“Parent”) requested the hearing on June 2, 2022, challenging the Department of Education’s failure to offer REDACTED a free appropriate public education for the summer 2022 and the 2022-2023 school year and seeking 15 hours per week of SETSS at an enhanced rate for REDACTED. IHO Ex. I.

A pre-hearing conference was conducted on July 8, 2022. At the pre-hearing conference, REDACTED’s father clarified that he was seeking SETSS for REDACTED for summer 2022 and for September 2022 through June 2023 to be provided by her previous SETSS provider at the rate of $135.00 per hour. Tr. 5-6. REDACTED’s father reported that he had attended a resolution session; at the resolution session, the representative of the CSE stated that he would issue a P-4 letter for REDACTED’s SETSS. Tr. 7, 12. As of the July 28 hearing date, the Department had not provided a P-4 letter for REDACTED. Tr. 24.

The hearing was conducted and completed on July 28, 2022. The Department did not offer documents in evidence or present the testimony of witnesses. Tr. 24.

The record closed on August 5, 2022, upon the hearing officer’s receipt of the transcript of the hearing, and the Actual Record Close Date is August 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 a REDACTED year-old young woman whose disability, for the purposes of the IDEA, is classified as a learning disability. Tr. 3; Exs. I at 1, II at 1.
• • REDACTED attends REDACTED High School, a nonpublic, religious general education school. Tr. 3, 40; Ex. II at 1.
• • REDACTED presents with a reading disability and a language processing disability and has had challenges in school, particularly in the areas of understanding grade level reading texts and written expression. Tr. 28-29. She also has challenges remaining focused. Tr. 41-42.
• • REDACTED has struggled with academics starting in elementary school. In REDACTED grade, she was a “nonreader.” Tr. 29.
• • In 2014, REDACTED was evaluated by the CSE and, through the CSE meeting process, found eligible for special education and services. Ex. I at 1. The CSE prepared an IESP for REDACTED. Tr. 4.
• • REDACTED was recommended for, and received, SETSS provided by individuals on the Department’s Providers’ List. Ex. I at 1-2.
• • Over the elementary and middle school years, during time periods when she received consistent SETSS, REDACTED made progress, but she continued to perform below grade levels, and her parents continued to experience difficulties in securing reliable SETSS providers who were on the Department’s Providers’ List. Tr. 29; IHO Ex. 1 at 1-2, 4-7.
• • REDACTED, a SETSS provider, first worked with REDACTED when she was in REDACTED grade and has worked with REDACTED as her SETSS provider for the past four school years. Tr. 28. Mr. REDACTED is a certified special education teacher, kindergarten through grade 12, with 29 years teaching experience and a background in reading instruction, including training in Orton-Gillingham, Lindamood-Bell and ABA methodologies. He has worked as a special education teacher on the elementary, middle and high school levels. Tr. 31-32.
• • The CSE convened a meeting for REDACTED on November 22, 2021 and again developed an IESP for her. Ex. II. The CSE recommended that REDACTED receive SETSS, 10 periods per week, and speech-language therapy, two 40 minute sessions per week.^[1] Ex. II at 8.
• • During the 2021-2022 school year, through the end of June 2022, Mr. REDACTED provided REDACTED with twelve to fifteen hours per year of SETSS per week. Tr. 30-31. He had these extra hours available due to a prior hearing officer’s decision which awarded a bank of SETSS hours for REDACTED. Tr. 30-31.
• • Mr. REDACTED provided SETSS to REDACTED at her home and, during the pandemic, remotely. Tr. 37-38.
• • Mr. REDACTED creates learning plans for REDACTED to address her needs in reading and written expression and meets with her parents to review the plans. Tr. 33.
• • Mr. REDACTED also coordinates with REDACTED’s teachers at school. Tr. 36.
• • The COVID-19 pandemic significantly impacted REDACTED and her family; as a result, REDACTED experienced REDACTED and “some school phobia issues” and needed additional academic and organizational supports and encouragement. Mr. REDACTED provided additional supports for REDACTED, and her family supported her and has been trying to obtain counseling for her to address her REDACTED. Tr. 29-30.
• • During the 2021-2022 school year, REDACTED continued to make improvements in her academic work and also developed more independence and confidence in her learning, was more willing to start assignments and initiate her school work, was more focused on her studies, and was willing to express herself. Tr. 29, 42, 45-46.
• • As of June 2022, REDACTED was performing at a seventh grade level in reading and writing and a close to eighth grade level in math. Tr. 34-35.
• • Mr. REDACTED recommended that REDACTED receive at least 15 hours per week of SETSS during the 2022-2023 school year because she is entering REDACTED grade, which will be a challenging school year for her due to the academic demands and Regents examinations. Tr. 32-33.
• • The learning plans for the 2022-2023 school year include writing multi-paragraph texts with supporting details, reading comprehension and literary elements and strategies to learn to connect texts and access the curriculum. Tr. 34.
• • Mr. REDACTED charges $135.00 per hour for SETSS. He charges this rate based upon his qualifications and years of experience as an educator. Tr. 38.

Decision

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education 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 first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).

A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s 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 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). The school district must then implement the IEP. 8 N.Y.C.R.R. 200.4(e)(1), (3).

A hearing officer may determine that a school district denied a student a FAPE based upon the district’s procedural errors in the development of the IEP, deficiencies in the substance of the educational program set forth in the IEP, or both. See L.O. v. New York City Dep’t of Educ., 822 F.3d, 95, 109 (2d Cir. 2016); see also 20 U.S.C. § 1415(f)(3)(E)(i); 8 N.Y.C.R.R. § 200.5(j)(5)(v). 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.

In this case, I must also consider that REDACTED is a “dually-enrolled” student, and, 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. See also Bd. of Educ. of the Bayshore Union Free Sch. Dist. v. Thomas K., 14 N.Y. 3d 289 (2010) (relevance of individualized educational needs of dually-enrolled students).

Considering the overlay of Section 3602-c, I will utilize the Burlington/Carter analysis to determine REDACTED’s parents claims. As in SRO No. 21-245, a Burlington/Carter analysis is both an appropriate and a practical manner in which to approach and consider this case. See Florence County School District v. Carter, 510 U.S. 7 (1993); School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). Under such an analysis, a board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985).

As to the first prong of the Burlington/Carter analysis, the Department did not present any evidence with respect to its provision of FAPE to REDACTED for the summer of 2022 and the 2022-2023 school year, the time periods raised in the due process complaint. Since the Department did not offer any evidence to explain how its IEP for REDACTED was “reasonably calculated” to permit her to make progress given her unique circumstances, the Department did not carry its burden of proof to demonstrate that it offered REDACTED a FAPE.

As to the second prong of the Burlington/Carter analysis, REDACTED’s parents bear the burden of proof concerning the appropriateness of 15 hours per week of SETSS for REDACTED. See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S.Ct. 169 (2007). To meet this burden, REDACTED’s parent must show that the SETSS addressed REDACTED’s identified special education needs. See C.F., 746 F.3d at 82; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.... To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.”

Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2020) (Summary Order).

The preponderance of the evidence establishes that fifteen hours of SETSS per week provided REDACTED with the supportive and targeted special education instruction that she required to address her needs for remediation in reading and written instruction. The record shows that when REDACTED did not have consistent and qualified SETSS, she fell further behind in academics. Furthermore, the SETSS provided by Mr. REDACTED are tailored to REDACTED’s specific needs, particularly now when REDACTED needs additional support due to her REDACTED. I credit Mr. REDACTED’s testimony that he recommends fifteen hours per week of SETSS for REDACTED; this number of hours has been necessary for REDACTED’s continued reading and writing remediation and curricular work moving forward. See, e.g., T.K., 810 F.3d 869 at 878 (unilateral program appropriate when it meets child’s needs and child makes progress); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y. 2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs and which resulted in progress).

In addition, the record indicates that REDACTED should have SETSS during the summer months, particularly in light of the upcoming rigors of REDACTED grade. I also find that the rate charged by Mr. REDACTED is reasonable in light of his experience and expertise.

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that fifteen hours per week of SETSS is appropriate for REDACTED. As a result, REDACTED’s parent prevails with respect to the second Burlington/Carter criterion.

With respect to the third Burlington criterion, whether equitable considerations support REDACTED’s parent’s claims, the evidence establishes that REDACTED’s parent cooperated with the Department and the CSE by attending the CSE meetings, communicating with Department personnel and attempting to locate suitable SETSS providers from the Department’s list. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district). On the other hand, REDACTED’s parents did not provide a “ten-day” notice to the Department that they would be seeking payment for SETSS. In this instance, lack of such notice should not be held against REDACTED’s parents because they have consistently worked with the Department and the Department has been aware of REDACTED’s SETSS. Equitable considerations thus favor the award of relief to REDACTED’s parents, and REDACTED’s parents prevail with respect to the third Burlington/Carter criterion.

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

• • The Department of Education shall fund for REDACTED fifteen hours per week of SETSS for the 12-month (42 week) 2022-2023 school year, commencing on July 1, 2022.
• • The above-referenced SETSS shall be provided by Mr. REDACTED, or if Mr. REDACTED becomes unavailable, another comparable provider, at the rate of $135.00 per hour.

Dated: August 10, 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

IHO Exhibits

I Due Process Complaint May 30, 2022 9 pages

II IESP November 22, 2021 11 pages

Footnotes

[1] Speech-language therapy is not at issue in this proceeding.