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CASE NUMBER: 575877 - NYC: 228589
New York City Department of Education
Impartial Hearing Office
STUDENT, by and through his/her PARENT(S),[1]
FINDINGS OF FACT AND DECISION
Petitioner(s),
- against - Case No. 228589
THE NEW YORK CITY DEPARTMENT OF Record Close Date: 10/18/22
EDUCATION,
Respondent
HASHIM RAHMAN, Hearing Officer:
The Petitioners are the parents of a Student who requires special education services. (See Pet’rs’ Ex. A at 1.) On July 5, 2022, the Petitioners filed a due process complaint (“Complaint”) against the New York City Department of Education (hereinafter “DOE” or Respondent). (See id. at 13.) In the Complaint, the Petitioners assert that the DOE denied the Student a free and appropriate public education (“FAPE”) by failing, inter alia, to “recommend appropriate school and home based SETSS[2] services” for the 2022-2023 school year. (Id. at 7; see also, the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.) The undersigned hearing officer was appointed for this matter on July 19, 2022.[3] Thereafter, a prehearing conference was held on August 17, 2022. (See Hr’g Tr. 1-10.) A due process hearing was held on September 9, 2022. (See id. at 11-58.)
THE DUE PROCESS COMPLAINT
In their Complaint, the Petitioners assert that the DOE held an educational meeting on May 11, 2022. (Pet’rs’ Ex. A at 6.) The Petitioners allege, as per the Complaint, that the DOE denied their request for after school SETSS despite there being a need for such services. (Id.) As relief, the Petitioners request, inter alia, that the Student be provided with a minimum of ten hours per week of after school SETSS instruction to address behaviors and skills. (Id. at 8.)
THE DUE PROCESS HEARING
I. Facts and Assertions Presented
At the hearing, the Petitioners asserted through counsel that they are requesting an order directing the DOE to fund ten hours per week of after school SETSS for the entirety of the 2022-2023 school year. (Hr’g Tr. 20-21, 49.) The Petitioners further claimed that the anticipated total cost for such services through the Student’s existing SETSS Provider would be $57,500. (Id. at 22.) Additionally, the Petitioners withdrew all other claims set forth on the Complaint other than the request for SETSS funding.[4] (Id. at 20-21, 49.)
The Petitioners presented thirteen documents and two witnesses.[5] (See id. at 12-13.) The documents included the Complaint, a 2022 Individualized Education Program (“IEP”), seven progress reports, a services affidavit, and a neuropsychological evaluation. (See Pet’rs’ Ex.’s A-K.) The Petitioners’ first witness, the Parent, testified that the Student has significant needs and it is “very necessary” for her to have two hours per day of SETSS. (Id. at 31-32; see also, Pet’rs’ Ex. L ¶¶ 21-22.) The Petitioners’ second witness, the Director of Services, testified that the Student continues to need extra support for academics, social skills, and daily living skills. (Id. at 44.) The Director of Services further stated that her company has been providing the Student with ten hours per week [of SETSS] for the past few years and she recommends that the same level of services continue. (Id. at 43.)
ANALYSIS
I. General Legal Framework
Under the Individuals with Disabilities Education Act (“IDEA”), an educational agency must offer a free and appropriate public education (“FAPE”) to each student with a disability residing in the state. 20 U.S.C. § 1412(a)(1)(A). The IDEA defines FAPE as “special education and related services that have been provided at public expense, under public supervision and direction, and without charge...” that meet state standards and are provided in conformity with IEP requirements. 20 U.S.C. § 1401(9). Congress enacted the IDEA "to ensure that all children with disabilities have available to them a free appropriate public education" and "to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d)(1)(A), (B). A FAPE should emphasize “special education and related services designed to meet [a disabled child's] unique needs and prepare [the child] for further education, employment, and independent living." Id. § 1400(d)(1)(A).
When addressing whether a FAPE was provided, two factors should be considered: 1) whether the IEP was developed according to the IDEA’s procedural requirements, and 2) whether the educational plan set forth in the IEP was reasonably calculated to confer a substantive educational benefit on the student. See Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982)).
Under the IDEA, if procedural violations are alleged, a hearing 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)(ii). The school district bears the burden of proving that it provided a FAPE to the Student. See Educ. L. § 4404(1)(c).
In the present case, Petitioners contend that the DOE denied the Student a FAPE by failing to provide SETSS. (Pet’rs’ Ex. A at 7.) The Petitioners seeks funding by the DOE for private SETSS. (See Hr’g Tr. 49.) A determination of whether the Petitioners are entitled to an award for such remuneration is best analyzed under the Burlington/Carter test. See In re: Student with a Disability, Appeal No. 20-140 at 7 (SRO Sept. 23, 2020); In re: Student with a Disability, Appeal No. 20-099 at 7 (SRO Sept. 21, 2020); In re: Student with a Disability, Appeal No. 20-094 at 9 (SRO Sept. 9, 2020). Under the Burlington/Carter test, a parent may obtain reimbursement for a private program if 1) the school district violated the IDEA by denying a FAPE to the student; 2) the private placement by the parent was appropriate; and 3) considerations of equity favor reimbursement. See Ventura de Paulino v. New York City Department of Education, 959 F3d 519, 526-527 (2d Cir. 2020). This standard has been applied to both tuition-reimbursement and SETSS-reimbursement cases like the one at bar. See In re: Student with a Disability, Appeal No. 20-140 at 6-7 (where the state review officer described a growing number of SETSS cases for which the Burlington/Carter standard, typically used for tuition reimbursement, was applicable).
II. FAPE
With respect to the first prong of the Burlington/Carter test, the DOE bears the burden of proving that it provided a FAPE to the Student. See Educ. L. § 4404(1)(c). In the present case the DOE, but virtue of not appearing, presented no documentary evidence or witnesses to prove that the student was provided with a FAPE. (See Hr’g Tr. 48:5-11.) Accordingly, I find that the DOE did not meet its burden of proof; and I find that the DOE violated the IDEA by failing to provide the Student with a free and appropriate public education.
III. Appropriateness of Placement For the second prong of the Burlington/Carter test, the Petitioners bear the burden of proving whether the unilateral placement was appropriate. See Educ. L. § 4404(1)(c). The appropriateness of placement hinges on whether it is "reasonably calculated to enable the child to receive educational benefits." Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006), (quoting Rowley, 458 U.S. at 207). “No one factor is necessarily dispositive in determining whether parents' unilateral placement” is reasonably calculated to confer educational benefits to the child. Id. at 364-365. To qualify for reimbursement a parent “need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child...” Id., (quoting Rowley, 458 U.S. at 188-89).
Based on the affidavits, testimony, and other evidence presented, the Petitioners have established that the private educational services (i.e. the SETSS) are appropriate. (See Hr’g Tr. 32-34, 44-46 Pet’rs’ Ex.’s L, M.) Accordingly, I find that the Petitioners have met their statutory burden under the Burlington/Carter test.
IV. Equities and Relief
As relief, the Petitioners seek an order directing the DOE to fund privately-obtained SETSS. (See Hr’g Tr. 49-50.) The Petitioners assert that the SETSS Provider is administering services at a rate of $125 per hour with a total anticipated cost of $57,500. (Id. at 48-49.) Nevertheless, the Petitioners have not asserted that they incurred an expense or financial obligation with respect to SETSS.
To create a financial obligation there must be an agreement. Furthermore, "[i]f an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract." Cobble Hill Nursing Home v Henry & Warren Corp., 74 N.Y.2d 475, 482 (1989), cert denied 498 US 816 (1990). In the present case, the Petitioners presented no contract, no bills, and no invoices. (See Pet’rs Ex.’s A-K.) The Petitioners also represented that there is no contract with the SETSS Provider. (Hr’g Tr. 50.)
It is understood that the DOE committed the initial wrongdoing by failing to provide the Student with appropriate services; however, without sufficient proof of a financial injury suffered by the Petitioners an order directing the DOE to pay a non-party SETSS Provider is unwarranted. See In re: Student with a Disability, No. 21-028, 121 LRP 13688 (N.Y. SRO March 22, 2021) (holding that the DOE was not obligated to fund a private provider where the parent presented inadequate proof costs or a financial obligation). Thus under the circumstances here, a funding award against the DOE would not be equitable.
Furthermore, despite the Petitioners’ arguments to the contrary (see Hr’g Tr. 52), I find that facts presented in this case do not constitute a claim for compensatory education. More specifically, there can be no missed services requiring compensatory education for a school year that had not yet began when the Complaint was filed. (See Pet’rs’ Ex A.) It should also be noted that the Petitioners withdrew all claims except for their straight-forward request for funding of the privately-obtained SETSS. (See id. at 20, 39.)
For the reasons set forth above, the Petitioners’ request for order directing the DOE to fund SETSS is denied, and other all claims set forth in the Complaint are hereby dismissed.
Dated: 10/18/22
SO ORDERED
/s/ ___
Hashim Rahman,
Hearing Officer
Sent via Email to All Parties
APPENDIX A – PETITIONERS’ EXHIBITS
Exhibit
Title
Date
Pages
A Impartial Hearing Request and Pendency Form 7/5/22 13pp.
B Individualized Education Program 5/11/22 28pp.
C Progress Report 5/15/22 3pp.
D Progress Report 2/15/22 3pp.
E Progress Report 2/15/22 3pp.
F Progress Report 11/15/21 3pp.
G Progress Report 8/16/21 2pp.
H Rate Affidavit 8/19/22 1p.
I Progress Report 8/15/22 4pp.
J Neuropsychological Evaluation 3/8/22 22pp.
K Progress Report 8/15/22 3pp.
L Parent Affidavit 9/2/22 7pp.
M Provider Affidavit 9/2/22 4pp. APPENDIX B – TERMS AND REFERENCES
[INTENTIONALLY OMITTED]
Footnotes
[1] Personally identifiable information has been removed from this decision but is shown in the appendix.
[2] SETSS is an acronym for special education teacher support services. (See Hr’g Tr. 18, September 9, 2022.)
[3] A Notice of Appointment that was emailed to the Impartial Hearing Officer by the New York City Impartial Hearing Office.
[4] The claims in the Complaint that are deemed withdrawn include, but are not limited to, the request that “the CSE convene to develop an appropriate IEP” and the request “seek[ing] pendency in the provision of 10 hours per week of after school SETSS...” (See Pet’rs’ Ex. A at 7-8.)
[5] The Petitioners also submitted a closing brief which was considered. (See Parent’s Closing Br., September 30, 2022.) Other than the said brief, no evidence or items submitted after the close of the hearing were considered.