New York City Department of Education, Impartial Hearing Decision

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: July 5, 2022

Date(s) of Hearing: August 10, 2022, September 16, 2022*, October 13, 2022*, November 14, 2022, November 16, 2022

Actual Record Closed Date: December 17, 2022

Date of Decision: December 17, 2022

Hearing Officer: Stephanie Seto, Esq.

*Status Conferences

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 10, 2022

For the Student:

REDACTED, Esq, REDACTED

For the Department of Education:

REDACTED, Esq., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 16, 2022

For the Student:

REDACTED, J.D., Law Clerk, REDACTED

For the Department of Education:

REDACTED, Esq., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 13, 2022

For the Student:

REDACTED, J.D., Law Clerk, REDACTED LLP

For the Department of Education:

REDACTED, Esq., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 14, 2022

For the Student:

REDACTED, Esq., REDACTED LLP

REDACTED, Esq., Attorney Observing

For the Department of Education:

REDACTED, Esq., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVMEBER 16, 2022

For the Student:

REDACTED, Esq., REDACTED LLP

REDACTED “REDACTED”), Special Education Teacher and Agency Representative, REDACTED

For the Department of Education:

REDACTED, Esq., District Representative

INTRODUCTION, BACKGROUND AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about July 5, 2022. (P Ex. A)1. On July 18, 2022, I was appointed the Impartial Hearing Officer ("IHO") to conduct an impartial hearing pursuant to the DPC alleges the New York City Department of Education (the “District” or “DOE”) failed provide the Student with a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) (20 U.S.C. section 1415, et seq.), Sections 4404(1) and 3602-c of the New York State Education Law (NYS “dual enrollment statute”) and attendant Federal and New York State Regulations against, concerning a dispute between Parent of Student, a disabled Student with the classification of learning disability, and the New York City Department of Education (the "DOE" or “District”) regarding a claim for that the District failed to provide Student a FAPE for the 12-month 2022-2023 school year and that Parent disagreed with the District’s most recent evaluation and that it remains timely and relevant.

The DPC seeks an order of pendency based upon Student’s last agreed upon June 14, 2019 Individual Educational Services Plan (IESP) (“2019 IESP”) (P Ex. B) which mandated Student receive seven (7) sessions of Special Education Teacher Support Services (SETSS) and certain related services and that the District failed to create an updated IESP for the 2022-2023 school year. The DPC Parent sought the District fund and provide services for the 2022-2023 school year based upon the services recommended in the 2019 IESP for a 12-month school year at an enhanced rate, an award of all related services in the 2019 IESP (it is noted the DPC states “IESP” and this would appear to be a typographical error) and a n award of direct funding or direct funding and/or reimbursement for the cost of private evaluations parent arranged for in order that the SETSS provider could private adequate and appropriate services for the 2022-2023 school year. P Ex. A-2.

At the hearings on November 14, 2022, the issues for hearing were limited and clarified. Tr. 45-70. There is no dispute between the parties that Student was entitled to seven periods of SETSS a week in REDACTED for the ten-month school year as mandated in the 2019 IESP and should receive seven periods of SETSS during the 10-month school year. Tr. 45-70. Also undisputed was Parent’s request for a finding that Student was entitled Student Speech/Language Therapy three times thirty minutes per week in REDACTED for ten-month school year for 2022-2023 (these services are also provided in the 2019 IESP). Tr. 51-52.

At the hearings on the merits on November 14 and 16, 2022, the hearings were narrowed to determination of the three disputed presented for this IHO determine: 1) the District be directed to fund services during the summer months of 2022-2023 (i.e. twelve months of services or an extended school year (“ESY”) and specifically fund seven periods of SETTS that Student received during the summer for six weeks from July to August as these services were necessary to prevent regression); 2) that the District be directed to fund directly SETSS services Student is receiving from the provider REDACTED for the 12 month 2022-2023 school year at an enhanced rate of $225.00 or at a “reasonable market rate” as the District would typically pay for “market rate SETTS”; and 3) the District fund a September 6, 2022 Woodcock-Johnson IV Educational assessment and report prepared by the SSETTS REDACTED, as the District has failed to evaluate the Student for several years and was conducted “to see where student was at the beginning of school year.” See Tr.50-62, 70, 88-93.

Pendency was entered into between the parties pursuant to an agreement between the parties for the ten-month school year prior to the first hearing date based upon the 2019 IESP. Tr. 3-7.

The hearing on the merits was held on September 20, 2022. REDACTED appeared for Parent and REDACTED for District. Tr. 47. Parent did not offer any additional exhibits, beyond the exhibits already entered in the pendency hearing (P Ex. A DPC; P Ex. B, 2020 IESP; and P Ex. CTDN, Tr. 3-4), except for Exhibit D an unsworn affidavit of Parent, sworn to on the record. Tr. 65.

The District initially stated they were putting on a direct case but on the hearing date for District’s designated case on the merits did not present any witnesses. Tr. 42-43. The Parent did not object to District’s exhibits being entered into the record and District did not object to any of Parent’s exhibits entered into the record. Tr. 42-44. Parent’s counsel presented one witness, REDACTED and District cross-examined her. Tr. 74-87. Parent did not appear or give testimony at the hearings. Tr. 38-89 No written closing statements were submitted.

The list of documentary evidence in this proceeding is appended to this Order. The compliance date for issuing a decision in this proceeding was extended for the Parties to attempt to settle this matter and then for witness availability and time for issuance of transcripts and issuance of a decision upon the parties’ request.

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 its implementing regulations, 34 C.F.R. November 8, 202§ 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and Educ law § 3602-c and implementing regulations, 8 NYCRR § 200.5 et seq.

ISSUES

ISSUES Presented:

1. Did the Parent prove that the Summer SETTS services during the summer of 2022 was appropriate and was proof that Student would substantially regress during the 2022-2023 school year without such services provided deeming them appropriate (Prong II Analysis)?

2. Do the Equities favor Parent per Prong III?

3. Did the Parent entitled to funding for the September 2022 Woodcock Assessment conducted by Student’s SETTS provider?

FINDINGS OF FACT

Student is a REDACTED male student in ninth grade attending a religious nonpublic school, REDACTED. P Ex. A. He is classified on his 2019 IESP as a student with a disability of speech and language impairment. (P Ex. B-1). Student’s 2019 IESP mandates SETSS Direct Group Service in REDACTED seven (7) periods per week and Speech and Language Therapy 1:1 three (3) times a week for thirty minutes. P-Ex. B-3.

All facts in this case are based upon the documentary evidence and testimony provided by SETTS provided and owner of the SETTS provider REDACTED LLC (“REDACTED”). Tr. 70—86; P Ex..-

Student has been receiving SETTS services through REDACTED and or other SETSS providers through REDACTED’s company(“REDACTED”) since the 2018-2019 school year. Tr. 75. It is unknown when Student first received special education services through an IEP or IESP with the District. The District’s Due Process Response states that the 2019 IEP was an initial evaluation. D Ex. 1.

The 2019 IESP on its face does not reference any particular evaluations or assessments or the basis of the disability classification. P Ex. B. The IEP states Student’s performance at that time at the end of 4th grade at his current school was 2nd grade for Reading, Writing and Math. P Ex. B-1. There is mention that in some aspects of reading he is below the 2nd grade level. P Ex. B-1. An Occupational Therapy evaluation is recommended for student’s “wandering mind and attention deficit.” P Ex. B-1. It is noted student has severe short term memory issues “which cause him to regress during extended breaks, especially in the summer.” P Ex. B-1.

REDACTED testified Student never received summer services prior to 2022. Tr. 75. Student received summer services in the summer of 2022 on the behest of Student’s school REDACTED. Tr. 76-78. REDACTED testified that she and the school had requested student received summer services for in other years but Student did not want to go; REDACTED testified REDACTED a “put their foot down” and demanded Student have summer services and so “He [the Student] had to go along with it” and described Student had fought Parent on Summer Services for years until REDACTED got involved Tr. 76-78; 84. REDACTED testified that Student’s Mother contacted her and told her REDACTED demanded student receive summer services. Tr. 78

Parent informed REDACTED that she sent a request to the DOE. Tr. 78. REDACTED testified that documentation would have to be provided from the school stating “what they feel was needed.” Tr. 78. REDACTED states that Parent obtained this letter from REDACTED and REDACTED sent it to the District and she “added a letter stating. From her experience working with the child, why I felt it’s accurate the required the summer services.” REDACTED testified she emailed the District directly with these “letters” from herself and REDACTED in June of 2022. Tr. 78-79. Entered into the record as P Ex. E-1 is an email dated July 1, 2022 (without confirmation) from REDACTED to REDACTED. P Ex. E-1. It indicates enclosed is a letter from Student’s teacher stating Student regresses substantially over the Summer and in past years he has “refused Summer services.” P Ex. E-1. Entered as Exhibit F is a Letter that is not on heading and addressed “To Whom It may Concern” signed electronically by “Mr. REDACTED, Teacher” dated June 30, 202 sating the Student has a considerable gap in his skills, most likely has ADHD, struggles with executive functioning and has severe short-term memory and slow processing and exhibited three to four months of regression after the summer in his academics. P Ex. F. Also offered, and unclear from Exhibit E and REDACTED’s testimony whether it is the “letter” REDACTED prepared for the District is a Progress Report for Student dated June 2022 but stating December 2021 Progress Report at that top. P Ex. I. The Progress Report does not contain any specific levels of student’s academic abilities or specific progress. P Ex. I. It recommends that Student receive SETSS services over the summer as it takes him 8-10 weeks to regain information lost over past summers. P Ex. I. REDACTED testified there was no specific evaluation submitted or prepared in conjunction with the recommendation for summer services. Tr. 85. She testified she did not receive a response from the District and did not believe the Parent had as they asked her if she heard anything. Tr. 80.

REDACTED testified the student required summer services to avoid substantial regression and took eight to ten weeks to recoup lost information after the summer. P Ex. G-5. She also testified he is lagging behind terribly. P Ex. G. REDACTED testified that Student attended summer school at REDACTED in 2022 and that is where he received his SETTS summer services in 2022 of seven times a week for six weeks. Tr. 81-82. Although REDACTED also testified that the services are “center based” and children come to center for services (which is part of the expenses of the agency). Tr. 81; G-4.

The amount owed for summer SETTS is $9,450, based upon the amount of SETTS and $225.00 rate but it has not been invoices and was not actually calculated for Parent. Tr. 81-82. Although there is a Contract in evidence between Father and REDACTED/REDACTED dated July 1, 2022 for 12 months of services of SETTS for 2022 -2023 at the rate of $225.00. P Ex. H. The contract has signatures of REDACTED and Parent that require Parent to pay any part of the $225.00 that the District does not cover. P Ex. H. REDACTED stated the contract was “drawn up” after REDACTED required the summer services. Tr. 79

It is unknown what Student’s levels of academic functioning were at the end of the 201-2022 school year as there is no empirical or quantitative information about his academic levels or performance provided in the record.

Further, based upon REDACTED ‘s testimony and the September Woodcock -Johnson report it is unclear what Student’s academic levels are. In her testimony she stated his present reading level is 3rd grade and his math level is 5th grade. G -1. The Woodcock-Johnson Assessment Report from September 2022 reports that Student’s reading instruction presented at the “middle to late first grade” with some tests in the 8-year range and many in the 6-year age range for Reading - age 6-8 (Reading Recall), Word Reading Fluency is only at age 6-6 old level and reading vocabulary at an average age 6-6 (all first-grade level). See P ex. C-2-10. Student’s writing instructional level was presented “with the late second grade to late third grade level.”C-2. Student’s Math instruction was determined to be at the middle fourth grade to middle fifth grade range. P Ex. C-2. Also mentioned is Student’s Science knowledge is comparable to that of a four-year-old, social Studies at the age of a 5-5-year-old and Humanities at the age of a child just under four years old. P Ex. C-10. There is an invoice for $2,000 for the Woodcock Johnson Assessment but no proof of payment. P Ex.1.There is no testimony the Parent requested this assessment.

REDACTED conducted a Woodcock -Johnson assessment to measure Student’s educational level as is her practice every year at the start of school. Tr. 81. She also testified they have a “very thorough evaluation towards the end of the year.” Tr. 82. REDACTED testified she knew of no evaluation of student was conducted by someone in the field of psychology. Tr. 80-81. She also testified she did not know what Student’s short-term memory and slow processing stemmed from and what it stemmed from was “irrelevant.” Tr. 76. But, her affidavit includes the statements that Student has Dyslexia. P Ex. G-1. Her testimony contains a long list of issues that Student struggles with including: severe short term memory, awareness, executive function, organization, sequencing, time management, inhibition control, inflexible thinking, focusing, following multi-step instructions, reading, repeating back details of what is read to him, understanding the plot of a story, sequencing, reading comprehension, math problem solving, critical thinking, remembering names he just read, spelling and organization in writing, independently doing his homework, self-esteem and behavior, frustration and avoidant behavior,“help transitioning to a full regular education setting”. P Ex. G 1-2. She testified he requires repetition, redirection, break down of information, verbal and visual prompting to answer “Wh” questions, requires pre-teaching of vocabulary, needs special work sheets, graphs, manipulative, and modalities. P Ex. G-1-2.

It is reported in the IESP that Student speaks only REDACTED (in 4th grade) and again REDACTED’s Progress Report it is reported student;s primary language is REDACTED and he “requires translation.” D ex. 2: P Ex. I-3.

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 provides children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 (d)(1)(A). FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). The purposes of the IDEA are (1) to ensure that students with disabilities have available to them a 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) ensure that the rights of students with disabilities and parents of such students are protected. (20 U.S.C. § (d)(1)(A-B); See Forest G. v. T.A., 129 S. Ct. 2484, 2491 (2009); Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP is developed through the IDEA's procedures is reasonably calculated to enable the Student to receive educational benefits. Id. To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the Student's right to a FAPE. 8 NYCRR § 200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

The failure of a school district to provide a FAPE for a disabled student may arise out of substantively inadequate or inappropriate IEP and/or placement. Bd. Of Educ. v. Rowley, 458 U.S. at 192) and/or procedural inadequacies that (i) "impeded the student's right to a free and appropriate education," (ii) "significantly impeded parent's opportunity to participate in the decision-making process regarding a free and appropriate public education to parent's child" or (iii) "caused a deprivation of educational benefits." 8 N.Y.C.R.R. § 200.5(j)(4)(ii).

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. See 3602-c. Parents may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404. Id.. In accordance with this law, the District’s CSE must review the request for services and develop an IESP for a student the request has been made for 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-laws-2007-guidance-on-nonpublic-placements.pdf.

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.” 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.” The Guidance Memo on § 3602-c advises that services covered by this section of the law are limited to those services provided in programs operated during the course of “the regular school year” and not summer programs. Guidance Memo on 3602-c, p. 14.

“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, considering “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.

A parent who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location. See Id. at 5.

The statutory scheme of Education Law § 3602-c places the responsibility on Parents to contact the District each year by June 1st to inform the District Student is continuing to be placed in the parentally placed school and Student needs an IESP.

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). The SRO decisions have repeatedly found that 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.

Districts providing services to non-resident pupils may recover tuition from a district of residence in accordance with the NYS Commissioner’s formula pursuant to regulation; average daily attendance of nonpublic students receiving services pursuant § 3602-c shall be included in such computations of costs to be recovered as delineated in § 3602-c and pursuant to Federal and State Law and regulation. See § 3602-c(1)(7) and (8); see also, Guidance Memo on 3602-c. Related to such computations, § 3602-c defines “average daily attendance” as tied to the number of days the public school was in session for each attendance period and the number of classes operated by the public school during the school day in relevant time period. 3602-c(1)(e)

Section 3602-c is limited to a provision of programs or services during the course of the “regular” school year. See 3602-c(1)(a). The Guidance Memo on 3602-c providing guidance on a district’s obligations under 3206-c indicated that districts are not required to provide dual enrollment services to students with disabilities during the summer. Guidance Memo on 3602-c, p.14. Therefore an IESP can only be for ten months per statutory law. See also, R. G. v. NYC Dep’t. of Educ., 18 cv-11219 (S.D.N.Y. Jan. 24. 2022); SRO Appeal No. 20-094; Questions and Answers on Individualized Education Program (IEP) Development, The State's Model IEP Form and Related Documents," at pp. 39-40, Office of Special Ed. [Apr. 2011], http://www.p12.nysed.gov/specialed/formsnotices/IEP/training/QA-411.pdf.

The New York City Department of Education School year calendar for the regular school year for 2021-2022 had approximately 180 instructional days complying with New York state law and ran from September 13, 2021 through June 27, 2022. See https://cdn-blob-prd.azureedge.net/prd-pws/docs/default-source/default-document-library/doe-calendar-sy-21-22.pdf; see also, N.Y.S. Ed. Law. § 3604 and 8 NY RRR § 175.5. The New York State Regulations states a “school day” shall have the “the same meaning for all students in school including students with disabilities and students without disabilities.”

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 uniformly apply a Burlington-Carter test to determine to determine if districts must fund special education services that a parent paid for or has become legally obligated to pay for in cases falling under 3602-c and 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.

The 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. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012); M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. August 27, 2010).

The courts have determined that the remedy of reimbursement for private educational services and expenses may be granted by an IHO for a denial of FAPE by a school district if determined appropriate under the Individuals with Disabilities Education Act (IDEA). Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993). 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.

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

I FIND THE EVIDENCE SHOWS THAT THERE IS NO SUPPORT FOR FUNDING THE SERVICES WITH REDACTED IN THE SUMMER OF 2022 OR 2023.

The documentary evidence and testimony of REDACTED is unfortunate is disturbing. Based upon the documentary evidence Student has not progressed and has regressed over the past five years he has been receiving Special Education. Student is almost REDACTED and in High School, yet he is reading at the level of a first grader; this is lower than his academic function in June of 2019 according to the June 2019 IESP that Parent agrees with. His writing level is at the same level he was at in fourth grade (2nd grade), and he has only improved from 2nd grade to 4th grade levels from 4th grade to 9th grade. In 8th grade he could not do multiplication tables. ( PE x. I). There is no evidence that the Summer services kept student would have stopped regression or were necessary to stop substantial regression. As REDACTED has been providing student with SETSS and her company have been working with student since 2018, one can only conclude the SETSS provided is not appropriate as he has regressed. REDACTED has laundry list of struggles and needs for Student and he is essentially functional at or below the level of an eight-year-old in 9th grade, one must ask oneself how this has happened.

REDACTED repeatedly blamed Student for “refusing” summer services that apparently according to her would have stopped “Substantial Regression.” Parents are not mentioned as actors in this, which makes no sense. Student is a child and not responsible for the determination of whether he should receive Summer Services. Further REDACTED is described a Student with what would appear to be a constellation of emotional and neurocognitive problems, how could he be the one who decided or responsible whether the attended summer school? There is no evidence that REDACTED’s services are appropriate or that seven periods a week of SETSS with her company have resulted in appropriate services.

Special education is specially designed instruction to meet the unique needs of a student with a disability. It means adapting, as appropriate to the needs of an eligible student the content, methodology, or delivery of instruction to address the unique needs from the student’s disability; and to ensure access to the general curriculum, so he can meet the educational standards that apply to all students. 8 NYCRR § 200.1(vv). REDACTED did not see the benefit in knowing what Student’s underlying disabilities are, even though they appear extreme by the laundry list in her affidavit. This was a surprising moment in her testimony when she testified his underlying disabilities did not matter. One must ask how a Special Education attacks the problems and struggles of a Student without understanding the underlying cause.

The New York State regulations require that “A student shall not be determined eligible for special education if the determinant factor is: (i) lack of appropriate instruction in reading…(ii) lack of instruction in appropriate mathematics or (iii) limited proficiency.”

At this point it is completely unknown what Student’s problems are due to and if he is receiving appropriate instruction (or limited English proficiency). Therefore, using my equitable powers I order the District to immediately conduct a full evaluation of Student as if Student including all evaluations and assessments necessary for an initial or triennial evaluation.

To address other issues with Prong I and II, Parent failed to ask for summer services timely and in fact there is no evidence Parent actually made such a request. The request that is evidenced in the documentary exhibits is insufficient to show substantial regression and was too late for student to receive summer services as it was not made until July 1, 2022. The District had 60 days to complete any IEP that would have grated Summer Services so they would not have to have held the IEP meeting before the end of the Summer. Further, Parent failed to testify, and it is unknown their understanding of their responsibility or their position in this matter. Considering the depth of Student’s stated problems and the Parent’s failure to appear to assist in presentation of the claims I do not find sufficient evidence that Parent is actually responsible in any way for the SETTS services, especially due to REDACTED’s repeated statements it was at REDACTED’s insistence that Summer services be obtained. Parent never sent District a ten-day notice that it was obtaining Summer Services so there is also a lacking in Prong II to order payment of such services in particular.

There were inconsistencies in REDACTED’s testimony and therefore I find it was not fully credible and it is unclear what is true or not in this matter.

I find that the District does not have to fund the Woodcock Johnson assessment conducted by REDACTED. Parent did not state with any clarity what evaluations it disagreed with when requesting the parent be able to obtain independent evaluations – also a vague statement. In the first hearing I asked if Parent wanted a hearing on motion for Interim Evaluations and queried about the purpose of the request and Parent’s counsel did not elaborate except to state “we would like do an independent evaluation at any point” without explaining the planned evaluation, the cost or type. Further, REDACTED testified the Woodcock Johnson assessment was something she completed every year “at the start of school.” This would appear a SETTS provider seeking payment for part of their process and if anything it should have been billed as part of SETSS services. As stated above, REDACTED the tester saw no importance or validity in a cognitive /psychological evaluation to assess Student’s true disabilities.

Parents’ failure to prove Prong 2 or 3 or that Parent gave proper notice of disagreement of an Evaluation and the appropriateness of the Evaluation that for which funding is requested. alone is enough to deny Parents’ claim herein. The Parents’ request for a determination that the SETSS services should be funded for any part of the 2022-2023 school year and the request for the funding for the Woodcock -Johnson Assessment must be denied.

ORDER

IT IS HEREBY ORDERED that the Parents’ request for relief under the DPC shall be denied.

IT IS FURTHER ORDERED that the New York City shall immediately conduct a full set of evaluations of Student as including but not limited to a physical examination, an individual psychological evaluation including IQ testing and other neuro-cognitive measures, a social history, an observation of Student in student’s classroom at REDACTED, an educational evaluation, an occupational therapy evaluation, speech-language evaluation and an assistive technology evaluation;

IT IS FUTHER ORDERED, after the evaluations and reports are completed but within in no more than sixty days from this order, the Committee on Special Education shall convene to recommend an IEP or IESP depending on Parent’s stated preference after the completion of all evaluations and assessments and Parents receipt of such.

SO ORDERED

DATED: December 17, 2022

_________________________

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 A – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Exhibit

Document

Date

Pages

A

DPC

7/5/22

6 pages

B IESP 7/14/19 5

C Assessment Report 9/6/22, 10

D REDACTED Resume 2

E Email by REDACTED for Summer Services 7/1/22 1

F Teacher’s Letter 6/30/22 2

G Affidavit of REDACTED 11/7/22 5

H Contract 7/1/22 2

I Progress Report 12/2021 4

J Assessment Invoice 9/7/22 1

K Teacher Certification REDACTED 2

L Teacher Certification REDACTED 1

M Parent Tax Return 3 DISTRICT EXIBITS A

RESPONSE DPC

9/9/22

3

B

DPC

7/5/22

6

D

IESP

7/14/19

10