New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 575681 - NYC: 228408

FINDINGS OF FACT AND DECISION

Student’s Name ^[1]: [Redacted] (“Student”)

Date of Birth: [Redacted]

School District: [Redacted] , ESQ.

Hearing Requested by: [Redacted] (“Parent”)

Request Date/Date Complaint Filed: July 5, 2022

Date of Hearing: February 13, 2023

Actual Record Closed Date: February 17, 2023

Date of Decision: February 19, 2023

Date of Distribution if Different than Decision Date: February 19, 2023 Hearing Officer: Agoston

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 13, 2023

For the Student:

[Redacted], ESQ., Attorney

[Redacted], Parent Student

[Redacted], Educational Director, [Redacted]

For the Department of Education:

[Redacted], ESQ., Attorney

INTRODUCTION 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-Exh. A). ^[2]

On July 15, 2022, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA"), 20 U.S.C. §1415(f)(1) in the matter of S.G. (hereinafter "the Student"). A Pre-hearing Conference was held on August 25 2022. A hearing limited to the Parent's request for the issuance of an order concerning pendency entitlements was held on September 14, 2022 and I ordered that the Department of Education ("DOE") fund direct individual special education teacher support services ("SETSS") for 10 periods per week [Redacted] on a 12-month basis and continue to provide related services of individual speech and language therapy ("SLT") by a [Redacted] provider 3 times per week for 30 minutes per session on a 12-month basis per the Individualized Education Services Program ("IESP") dated April 21, 2021(P-Exh. B at 6;IHO-Exh. VI). The hearing commenced and concluded on February 13, 2023. It was a closed hearing, and Parent was represented by [Redacted] , ESQ., and the DOE was represented by [Redacted] , ESQ. The Parent entered into evidence exhibits (P-Exhs. A-I). The DOE representative entered no evidence exhibits. 3 The record was closed on February 17, 2023. The parties moved to extend the compliance date during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly, the requests for the extension of the compliance date were granted (T.25; 45;72;IHO-Exhs. I-V). The current record close date is February 17, 2023 and the decision due date is March 4, 2023.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

The Student was classified with a Speech or Language Impairment on the IESP dated April 21, 2021, (P-Exh. B at 1) and provided with the following services: direct individual SETSS for 10 periods per week [Redacted] and related services of individual SLT^[3] times per week for 30 minutes per session (P-Exh. B at 6). The Parent alleged in the DPC dated July 5, 2022, that the DOE failed to provide a free and appropriate public education ("FAPE") for the 2022-2023 school year as the DOE failed to provide a SETSS provider and a related service provider who were willing to work with the Student at the standard DOE rate and that the Parent contacted independent SETSS providers and related service providers and none were willing to work without an enhanced rate (P-Exh. A at 2). The Parent seeks a Final Order for the following: (1) that the DOE has failed to provide the Student with a FAPE for the 2022-2023 school year; (2) that the DOE continue to fund the program outlined in the IESP dated April 21, 2021 at the provider’s prevailing rate and (3) that the DOE fund a bank of compensatory periods for all services that the Student is entitled to under pendency (P-Exh. A at 3).

ISSUES

Did the DOE fail to provide a FAPE for the 2022-2023 school year and was the Parent entitled to direct individual SETSS for 10 periods per week [Redacted] and related services of individual SLT 3 times per week for 30 minutes per session [Redacted] at the provider's prevailing rate and was the Parent entitled to compensatory services for all the services not paid for under pendency and that the Student missed due to the DOE's failure to provide the services and did the equities favor the Parent?

FINDINGS OF FACT

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student but that education must be appropriate so that there is an opportunity for the student to make progress in his/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]).(Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student's unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). In order 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]). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).The Court in Rowley also observed that states are not required under IDEA to maximize every disabled child’s potential (Rowley, 458 U.S. at 198). The Second Circuit further observed that the IDEA is not intended to "secure the best education money can buy" or "guarantee any particular level of education" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]) (internal citations and quotation marks omitted). FAPE is delivered by a school through the implementation of an appropriate IEP. See Endrew F. v. Douglas Cnty. Sch. Dist., 137 S.Ct. 988, 994 (2017). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]); Bd. of Educ. v. Schaefer, 923 N.Y.S.2d 579, 56 IDELR ¶ 234 (App. Div. 2011).

The DOE has the burden of proof of both production and persuasion as to (a) whether FAPE was provided to the Student and (b) questions relating to relief, as the Parent was not seeking tuition for a unilateral placement in a private school. N.Y. Educ. Law § 4404; see also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 016);see also Application of a Student with a Disability, Appeal No. 11-032 Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

I find that the DOE representative did not contest any of the allegations in the DPC and agreed that the Parent's mistake in the DPC should reflect the compensatory services to which the Student was entitled to for missed services during the 2022-2023 school year (T.83).

I find that the DOE representative did not present a case. I find that without a DOE witness testimony to explain how the Student's deficits are addressed within the IEP and other DOE documents as well as to explain the CSE’s rationale in recommending the disputed program, the DOE is unable to meet their burden. The SRO has found that allegations that are left unchallenged are deemed as true. (See Application of a Student with a Disability, 01-044). I find that the DOE representative did not establish that a free and appropriate program was offered to the Student during the 2022-2023 school year.

The Southern District ruled on whether the Burlington/Carter analysis applied in a case procedurally analogous to this instant matter. M.N. and H.N. v. New York City Department of Education, 700 F.Supp.2d 356, 368 (S.D.N.Y 2010). I find that the Burlington/Carter analysis is not necessary when the relief sought is not funding for a unilateral placement, but rather the continuation of related services or SETSS services or SEIT services; however, I note that the Parent provided evidence to demonstrate progress. I find the evidence presented established progress (P-Exh. I). I credit the testimony of the Parent regarding progress (T.89). The Educational Director of the agency that provides the SETSS and SLT services credibly testified that because of the level of support that the Student received she progressed in reading based on the Fountas and Pinnell (T.104;107). The Progress Report indicated progress both academically and socially in that her expressive language skills increased and her anxiety decreased (P-Exh. I at 1-4).

I credit the testimony and evidence of the Parent regarding her unsuccessful attempts to find a SETSS who accepted the DOE approved rate (T.88;P-Exh. D at 1). I further credit the testimony and evidence of the Educational Director and find that the agency charged $197 per hour for the special education teacher who provided SETSS to the Student and charged a rate of $125 for the SLT provider (T.93;P-Exh. E at 2). I credit the testimony of the Educational Director who stated that the requested rates reflected the expense to run the agency and to provide 1:1 supervision, professional developments and materials and that the qualifications of the providers as the Student's SETSS provider was certified in NYS to teach students with disabilities in [Redacted] and the Student's SLT provider was a [Redacted] NYC licensed speech pathologist (T.93-96;P-Exh. E at 3). I credit the evidence and find that the Student did not receive the mandated SLT services from the DOE for the period from July 5, 2022 until September 8, 2022 and neither did the Student receive SETSS for the period from July 5, 2022 until July 27, 2022 and that the Student missed 9 hours of SLT and 30 hours of SETSS (P-Exh. D at 2). The DOE representative indicated that this case was an equitable case (T. 109).

CONCLUSIONS OF LAW

I conclude that the Parent’s actions have been reasonable and consistent with the IDEA. See C.D. v. N.Y.C. Dep’t. of Educ., 15–CV–2177(ARR)(JO), 2016 WL 3453649, at *20 (E.D.N.Y. June 20, 2016). I find that the Parent has met her burden of proof with respect to the request for the Student for direct group SETSS for 10 periods per week in [Redacted] at the reasonable market rate and related services of individual SLT 3 times per week for 30 minutes per session in [Redacted] per the IESP dated April 21, 2021, for a 12-month program the 2022-2023 school year.

Compensatory education is an appropriate remedy when, as here, a student does not receive a FAPE. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008); Streck v. Board of Educ. of the East Greenbush Central School Dist., 408 Fed. Appx. 411 (2nd Cir. 2010) (citing Burr v. 11 Ambach, 863 F.2d 1071, 1078 (2d Cir.1988)); parent of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir.1994); Reid ex rel. Reid v. District of Columbia, 401 F.3d 516 (C.A.D.C. 2005); Application of the Dep't of Educ., Appeal No. 12-135; Application of the Dep't of Educ., Appeal No. 11-132. Further, students denied pendency are entitled to make-up services. Student X. v. New York City Dep't of Educ., 2008 WL 4890440 (E.D.N.Y. October ^[30], 2008).

I conclude that the DOE representative did not present any evidence demonstrating an equitable bar to relief the Parent is seeking for a bank of compensatory hours in the amount of (2) that the DOE fund direct individual SETSS for 10 periods per week in [Redacted] and related services of individual SLT 3 times per week for 30 minutes per session in [Redacted] at the provider's prevailing rate for the 2022-2023 school year and (3) that DOE will fund the following compensatory education: 30 hours of SETSS and 9 hours of SLT to be utilized over the next two school years.

SO ORDERED.

DATED: February 19, 2023

/s/ Linda Agoston

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.

Footnotes

[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.

[30] hours of SETSS to make up for the 3 weeks that the DOE failed to implement its own recommendations and a bank of compensatory hours in the amount of 9 hours of SLT to make up for the 6 weeks that the DOE failed to implement its own recommendations (T. 84; P-Exh. D at 3). ORDER Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered: (1) that the DOE has failed to provide the Student with a FAPE for the 2022-2023 school year and that the Parent acted reasonably, and the equities favor the Parent;