NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Student Name: [REDACTED]
(“Student”)
Parent Names: (“Parent”)
Case Number: 575948/228660
Birthdate: [REDACTED]
District: [REDACTED]
Hearing Requested By: Mother
Date of Request: 7/21/2022
Date(s) of Hearing: 08-02-22; 9-01-22; 9-12-22;
09-29-22,
Actual Record Closed Date: 10-05-22
Date of Decision: 10-17-22
Hearing Officer: Vandana Chak, Esq
Appearing for the Parent: REDACTED, Esq.,
REDACTED, Esq.
Appearing for the District: REDACTED
STATE EDUCATION DEPARTMENT OF NEW YORK
_______________________________________________X In the Matter of a Complaint Pursuant to Part 200 of the Case No.: 228660
Regulations of the Commissioner of Education Regarding, STUDENT, a minor, by and through his
Parent(s) [REDACTED], FINDINGS OF FACT, CONCLUSIONS OF LAW
Petitioners AND DECISION
-against-
NEW YORK CITY DEPARTMENT OF EDUCATION,
Respondent.
________________________________________________X
INTRODUCTION AND PROCEDURAL BACKGROUND
1. This matter came before the hearing officer on July 21, 2022 and due to a misfiling again on August 24, 2022 (IHO Ex. I) by way of a due process complaint (“DPC”) filed by the Parent on or about July 5, 2022 (IHO Ex. II). No written response was provided by the Respondent, the New York City Department of Education (hereinafter “DOE” or “Respondent” or “District”). A pre hearing conference was held in this matter on August 2, 2022 and on September 1, 2022. Final hearings were held on September 12, 2022 and September 29, 2022.
2. Parent had filed a prior case with no. 213464 challenging the December 18, 2020 IESP (the “2020 IESP”), in which an FOFD dated June 15, 2022 was rendered, which was appealed from by the Parent and subsequently parent and district entered into a confidential settlement agreement and so the appeal was withdrawn (T.12). On August 30th, 2022 District entered into a pendency agreement with Parent on the basis of the last agreed upon, February 5, 2015 IESP (“2015 IEP”). (IHO Ex. III).
3. Two requests to establish the compliance date were granted (IHO Ex. VIII). The record closed on October 5, 2022.
JURISDICTION
4. 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 the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. § Part 200.
BACKGROUND
5. Student is an [REDACTED] years old child who was born on [REDACTD] and is classified as a student with Speech and Language impairment. Student is attending [REDACTED], a parochial private school, (“[REDACTED]”).
Parent’s Position
6. Parent’s position in the DPC is that District has failed to conduct evaluations of the Student and has not held a CSE meeting for the 2022-2023 school year. 7. Parent challenges the appropriateness of the 2020 IESP for discontinuing special education teacher services and recommending a 10 month services program. Parent wishes to continue the program of the pre-school IEP of February 5, 2015, (the “2015 IEP”).
8. Parent is seeking 1) a 12 month special education program, 2) funding of eight hours of SEIT services for 2022-2023 school year, 3) funding of three speech therapy services per week for 30 minutes 1:1 for 2022-2023 school year, and 4) funding of two occupational therapy sessions per week for 45 minutes 1:1 for 2022-2023 school year.
9. The Parent and the education director [REDACTED] (“[REDACTED]”), at [REDACTED], Inc. (“[REDACTED] Services”) provided testimony at the hearing.
District’s Position
10. The District argues that although it concedes a denial of a FAPE for the 2022-23 school year, the parent is not automatically entitled to all of the requested reliefs. District states that in the facts of this case SEIT services are not appropriate for Student.
ISSUES
11. On the funding of SEIT and related services claim as construed by New York Education Law §404(1)(c): “(1) the DOE must establish that the student’s IEP actually provided a FAPE; should the DOE fail to meet that burden, the parents are entitled to reimbursement if (2) they establish that their unilateral placement was appropriate and (3) the equities favor them,” M.W., 725 F.3d at 135.
FINDINGS OF FACT
12. It is undisputed that no IESP was developed for Student for the 2022-2023 school year. District did not defend their FAPE obligation for the 2022-2023 school year (T.88). The most recent Committee on Special Education (“CSE”) meeting was held on December 18, 2020 (Joint Ex. 2). District rested its case on prong 1 of the Burlington-Carter[1] test and did not provide any witnesses or documents as it relates to the funding and reimbursement claim. 13. Student is parentally placed at [REDACTED] since preschool. (Parent T. 43). Since the pre-school 2015 IEP Student continued to receive eight hours per week of special education itinerant teacher (SEIT) services, occupational therapy (OT), and counseling services. According to the evidence in the hearing record, the student attends a regular education classroom at the nonpublic school for the 2022-23 school year. The Parent maintains that she obtained the [REDACTED] services because the Student continues to need the SEIT services. (Parent T. 43-44).
14. Parent Exhibit C, a contract purportedly between [REDACTED] Services and Parent was entered into evidence through [REDACTED]’s testimony. ([REDACTED] T. 78). Parent was never asked if she had signed the Contract with [REDACTED] Services. Parent has not submitted into evidence any supporting document on income verification as stated in contract term 9 of the Contract.
15. When Parent was asked on direct what the [REDACTED] Services rate is for providing services, Parent hesitatingly tried to recall the rate. (Parent T. 46). When asked on direct what her obligation is in this case, Parent’s response is “That I -- that if I can't get [REDACTED] to pay for it, I would have to pay for it, which I don't know if I would be able to continue because I can't afford it.” (Parent T, 47). Parent’s testimony is that she is not seeking reimbursement and that [REDACTED] Services be funded directly. (Parent T. 47). There is no evidence submitted into the record that parent has paid any money to [REDACTED] Services for which she must be reimbursed. Evidence establishes that parent had not paid the agency responsible for delivering the SEIT.
16. Parent’s understanding of the obligation to pay for SEIT services rests with [REDACTED] Services as she cannot afford to. Parent does not reflect the understanding in Contract term ‘7’, (Parent Ex.C-3), that it would only be the difference between the DOE’s payment rate and [REDACTED] Services rate that Parent would be obligated to pay in the event DOE’s standard rate is awarded in an impartial hearing. The “schedule of fees” referenced in the contract term is not submitted by Parent as an attachment to the Contract nor did [REDACTED] testify to it or point to it in evidence.
17. Parent’s testimony that she cannot afford to pay is made in connection with the full enhanced rate of $197 per hour that [REDACTED] testified to. (Parent T. 47; [REDACTED] 57, 58). It is not made in relation to the differential amount.
18. Parent’s statement that she “can’t afford it” is not supported on the record by any verifiable document on Parent’s individual or household income and assets which would have been available to Parent. The hearing record lacked evidence on Parent's inability to pay for SEIT or services. The record fails to contain any evidence that the parent cannot afford to pay for such services, and the parent is not seeking reimbursement.
19. [REDACTED] does not testify that Parent has been invoiced for services. There is no evidence of an account stated for services provided as no evidence of an invoice directed to the Parent has been submitted.
20. The terms of [REDACTED] Services’ service state that they will “Provide testimony and documents at any impartial hearing”. (Parent Ex. C-1). [REDACTED]’s testimony does not disclose the cost of business expenses of [REDACTED] Services that are adjusted to calculate the rate it is seeking on Student’s account above what the actual service provider will be paid. ([REDACTED]: T. 58). While [REDACTED]’s testimony states that provider [REDACTED] get paid $100 per hour no invoices by him to [REDACTED] Services for hours of service provided and its rate, or proofs of payment made to the service providers or the relationship contract between [REDACTED] Services and him for Student’s service has been provided as the proper evidence to establish the enhanced rate determination.
21. [REDACTED]’s testimony states that [REDACTED] Services has provided SEIT providers for Student for previous 2 or 3 school years. ([REDACTED] Tr. 66). Parent states that providers working with Student are SEIT and P-3[2]. (Parent Tr. 44). The SEIT provider for Student at the present is [REDACTED]. (Parent Tr. 50, 61). Parent disclosure does not submit [REDACTED]’s qualifications or certification credentials. Parent exhibits E & F submitted at the hearing are credentials of [REDACTED] and [REDACTED] who purportedly were providing services in “summer”. ([REDACTED]. Tr. 81). [REDACTED]’s testimony is that the time in summer was split between the two. ([REDACTED]. Tr. 82). No documentary proof of payments to [REDACTED], [REDACTED] or [REDACTED] for the relevant periods has been submitted as evidence of payments made to them and none were witnesses at the hearing. There are no invoices sent to parent or payments made for any services submitted into evidence. No agreement for services between [REDACTED] Services or Parent and the purported providers was disclosed. This information would have been available to Parent for discovery.
22. It was [REDACTED], and not a provider who provided testimony on what the provider does in class for Student. On cross-examination [REDACTED] states that she has observed student once in a general education class. (Tr. 65). On direct when asked how Student’s progress is measured [REDACTED]’s testimony is that daily session notes are made at the end of class to track goals that inform the progress report (Tr. 63 l. 24-25; Tr. 64). No documentary proof of these session notes was submitted.
23. On the progress report submitted into evidence written by a [REDACTED] dated November 11, 2021, [REDACTED] testifies he was Student’s provider for 2021-2022 school year. (Parent Ex. G; [REDACTED] Tr. 83). No end of school year progress report was submitted into evidence. [REDACTED] did not testify at the hearing and his certifications and credentials were not submitted by Parent. [REDACTED]’s testimony is that Student is of average intelligence, and he struggles with learning in general and language. ([REDACTED] Tr. 66). [REDACTED]’s testimony is that Parent’s and, in their observation, Student experiences regression over the summer break. ([REDACTED] Tr. 59).
24. [REDACTED] Services develops its own program for student and [REDACTED]’s testimony is that “Every day, at the end of every session, the provider will document how the student performed, what goals were addressed, et cetera. And we save these and -- and reflect on them when we meet as a team or when -- when it comes to drafting progress reports.” ([REDACTED] T. 64). The Progress Report submitted into evidence describes the present levels of functioning and goals established for Student for ELA, Math, and Social by [REDACTED] Services. (Parent Ex. G). The report does not describe the services being provided on a push-in or pull out basis. [REDACTED]’s testimony on cross-examination is that Student is of “average intelligence” and next that he is “significantly below grade level.” ([REDACTED]: T. 66 & 69). [REDACTED]’s testimony is that Student is in 5th Grade (T. 71) and Parent’s opening statement places him in 6th Grade. (T.34). On common core goals to help student achieve grade level the Progress Report identifies in Literary the goal of collaborative discussions with partners on grade 3 topics and texts. (Parent Ex. G-4).
25. Parent did not submit evidence on the weekly class schedule that Student follows in general education class at the religious school. Parent testimony is that the SEIT services teach “writing and reading and helping him keep up to par in everything, if it's science, if it's history, if it's social studies.” (T. 48). Failure to disclose the schedule prevents an understanding of how SEIT/SETSS service is used, whether as a support or to cover secular learning.
26. A Pendency Agreement[3] was entered into on August 30, 2022. Student who is long past pre-school is continuing to receive SEIT services established in pre-school. The parent similarly requested a pendency placement for the student consisting of the special education and related services set forth in the 2015 IEP. The pendency form further reflected that the parties had agreed that the student's 2015 IEP, formed the basis for the student's pendency placement.
27. The 2015 IEP indicates that evaluations and assessments were conducted of Student. (Parent Ex. B). The 2020 IESP does not indicate that a re-evaluation was conducted thereafter. (Joint Ex. 1). No current Occupational Therapy, Speech and Language Therapy or SEIT Services report is referenced as provided to the CSE, in the 2020 IESP.
28. Parent sent a letter without a specific date in June 2022 to District stating that Student was being placed at [REDACTED] and she was requesting educational services from District. (Parent Ex. H; Parent T. 85), and District does not dispute it.
CONCLUSIONS OF LAW AND FACT
29. A board of education must offer a free appropriate public education (FAPE) to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).
30. However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]). "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" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "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]" (Educ. Law § 3602-c[2][b][1]). The 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, 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.). Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district for the purpose of receiving special education programming under Education Law § 3602-c, services for which a public school district may be held accountable through an impartial hearing.
31. 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 (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]).
32. It is very clear in this case that the parent obtained and substituted private services for core instruction that District failed to provide. This in turn prompted the dispute over the rates for the privately-obtained services described herein. The District is required by State law to locate and assign the student's publicly provided teachers for a dually enrolled student (Educ Law § 3602c[2][a]). District did not present any evidence or witnesses to show that it either arranged for or delivered the SEIT or SETSS service. The reason for this is that the 2020 IESP does not include SEIT or SETSS as a recommended program for Student.
33. Here, the DOE conceded that it failed to convene a CSE meeting for the Student’s 2022-2023 educational planning, failed to defend its 2020 IESP, and failed to provide the student with his continued SEIT mandate, thereby singly or cumulatively, these violations comprise a denial of FAPE. The DOE did not meet its burden of proving Student’s December 18, 2020 IESP was appropriate and that it was reasonably calculated to enable the Student to make meaningful educational progress in light of the Student’s circumstances. That being said, the DOE’s failure to meet is burden of proof does not mandate that the Parent’s request for relief be automatically granted.
34. In this case the appropriateness of SEIT as a type of service being delivered to the student during the 2022-2023 school year is taken up as a dispute by District in a short question on cross-examination of Parent on when SEIT should be discontinued. Although this is not a three-prong tuition reimbursement case, the fact that [REDACTED] Services developed and implemented its own program and goals for the Student makes the analysis of this case more similar to a tuition reimbursement/funding type of case, as opposed to an “enhanced rate” case and analysis.
35. It thus appears that [REDACTED]’s special education teacher is actually the Student’s instructor for secular subjects (e.g., reading, writing, and mathematics), as opposed to a special education teacher providing supplemental special education support on a push in or pull-out basis. [REDACTED] Services is not implementing the Student’s IEP or IESP. Parent has not submitted what [REDACTED] Services supervisors and staff reviewed to develop its own program and goals for the Student. The hearing record is not sufficient to support a finding that the [REDACTED] Services program is appropriate. [REDACTED]’s testimony describes Student as ‘average intelligence’ who is “significantly below grade”.
36. Evidence demonstrates that Student has been receiving SEIT services for the past 2-3 years through [REDACTED] Services and the pendency agreement reflects that continuation. (IHO Ex. III). I find that Parent had no reasonable basis for believing that she could simply implement the 2015 preschool IEP instead of the 2020 IESP.
37. The appropriateness of an educational program is best determined by the CSE. Given that a CSE has an obligation to review a student's IEP at least annually, the CSE should have the opportunity to convene to produce an IESP for the 2022-23 school year (see Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 [D.D.C. Aug. 24, 2012]. It is especially imperative in the circumstances of this case that District forthwith convene a CSE meeting for the 2022-2023 school year.
Funding for Unilaterally Obtained SEIT
38. In conceding denial of FAPE the hearing record indicates that the district delegated the obligation to find a SEIT/SETSS provider at an acceptable rate to the parent (see Parent Ex. III). This procedure is manifestly unreasonable because it is the district's nondelegable responsibility to ensure that services are delivered, whether in accordance with an IESP, an IEP, or pursuant to the stay put rule, and cost is not a permissible reason to defer or avoid the obligation to implement a student's services (see Application of a Student with a Disability, Appeal No. 20-087; Educ. Law § 3602-c[2][a]; [7][a] [b][providing that "[b]oards 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" and that the cost for services is recoverable from the district of residence, either directly with the consent of the parent for a district of location to share information or through the Commissioner of Education and the State Comptroller]).
39. While districts cannot deliver special education services called for by their educational programming in an unauthorized manner, due at least in part to the requirements that school officials and employees remain accountable under the statutory and regulatory mechanisms put in place by state and federal authorities, districts can be made to pay for a privately obtained parental placement, a process that is essentially the same as the federal process under the IDEA. "Parents who are dissatisfied with their child's education can unilaterally change their child's placement during the pendency of review proceedings and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted], cert. denied, 141 S. Ct. 1075 [2021], reh'g denied, 141 S. Ct. 1530 [2021]; see Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] ["Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]). Thus, as a practical matter this kind of dispute can really only be effectively examined using a Burlington/Carter unilateral placement framework because the administrative due process system was not designed to set rate-making policies for what has grown into a completely unregulated cottage industry of independent special education teachers that parents within the New York City Department of Education are increasingly reliant upon, an industry that is not authorized by the State in the first place.[4]
40. Accordingly, the parent's request for District funding of the 8 hours of SEIT[5] to be delivered to the student by [REDACTED] Services during the 2022-23 school year must be assessed under this framework; namely, having found that the district failed to develop a 2022-2023 IESP, and having found that [REDACTED] Services program does not constitutes an appropriate unilateral placement of the student such that the cost of the SEIT is reimbursable to the Parent or, alternatively, should be directly paid by the District to [REDACTED] Services upon proof that the Parent has paid for the services or is legally obligated to pay but does not have adequate funds to do so. As a result, the question of rate is somewhat beside the point as the cost of the SEIT, under the Burlington-Carter test, must be fully reimbursed or directly funded by the District unless, as a matter of equitable considerations, the costs sought to be reimbursed are excessive or otherwise should be reduced or, in the case of direct funding, the Parent has not demonstrated a legal obligation to pay the costs and an inability to do so. See Application of a Student with a Disability, Appeal No. 21-138.
41. While the record does not explain how exactly Parent’s relationship with [REDACTED] Services commenced the hearing record conclusively establishes through Parent's own testimony states that payments be made to [REDACTED] Services directly and not her. Parent does not testify that she has paid [REDACTED] Service for providing services to Student for the 2022-23 school year. Thus, there is no evidence that the parent has actually paid any money for which she must be reimbursed.
42. Parent’s testimony establishes that she expects [REDACTED] Services to pay for services and not Parent. It is clear from the evidence adduced that Parent and [REDACTED] Services are looking to payment from District. If Parent cannot afford to pay any sum it raises the question why then did Parent sign the Contract. Parent has not authenticated the contract in her testimony.
43. I also find that rate dispute is a matter to be resolved between District and [REDACTED] Services, who has the real financial interest in the outcome of the rate dispute, is not a proper party to a due process proceeding (34 CFR 300.507[a][1]).
44. I find that proper evidence available to Parent and [REDACTED] to prove the rate testified to and its basis has not been disclosed in evidence.
45. I find the record does not provide any relevant evidence to establish a demand for payment by [REDACTED] Services on Parent. The record does not provide any relevant documentary evidence to determine the individual and household financial ability of Parent to pay the obligation. Parent’s statement that she cannot afford to pay is insufficient evidence to prove financial ability or lack thereof. The evidentiary record does not establish Parent’s inability to pay. It is not appropriate equitable relief in this due process proceeding to require the District to either reimburse the parent for the costs of SEIT or to directly fund SEIT under the relevant standard. See Application of a Student with a Disability, Appeal No. 22-088.
46. I find that Parent has not established that [REDACTED] Services’ program is appropriate. For all the foregoing reasons, the Parent’s request for enhanced rate SEIT services for the 2022-2023 school year is denied.
Right to Reevaluations
47. The School District has to determine whether the education or related services needs including improved academic achievement and functional performance of the student “warrant a reevaluation”. Or, if the student's parent or teacher requests a reevaluation a reevaluation must be conducted not more frequently than once a year and at least once in three years. 34 C.F.R. §300.303(b)(2); 8 NYCRR §200.4(b)(4).
48. Parent in the DPC complains that District has not conducted re-evaluations prior to developing the 2020 IESP.
49. Generally a district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]). In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]). (See Application of a Student with a Disability, Appeal No. 22-088).
50. Thus, to the extent that the student may be due for a reevaluation based upon the district's obligation to evaluate the student at least once every three years, the district must comply with its obligations to do so. The record demonstrates that Student has not been re-evaluated in the last three years.
Length of School Year
51. To award specific changes to the student's IESP would, in effect, provide an award for the 2022-23 school year.
52. Relief in the form of prospective placement of a particular type of program, related service mandate, and assistive device and technology which would direct specific contents of an IESP would have the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing the student's needs. (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 [E.D.N.Y. Oct. 30, 2008] [noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]; see also Application of a Student with a Disability, Appeal No. 21-113; Application of a Student with a Disability, Appeal No. 20-089.
53. For the purpose of obtaining education for students with disabilities the CSE has to develop an individualized education service program. The definition of “services” in section 3602-c(1)(a) of the Education Law is limited to services provided in programs operated during the course of the regular school year and does not apply to services provided in summer programs.
54. Parent requests a relief of a program placement for a 12 month 2022-23 school year pursuant to 8 NYCRR 200.6(K)(I)(v). (Parent Ex. A-3). This regulation in relevant part prescribes a 12 month special service or program when a Student, “exhibit (s) the need for a 12-month special service and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression[6] as determined by the committee on special education.” (“CSE”).
55. To award the specific 12 month change to the student's 2020 IESP and place the program and related services of a preschool IEP would be to provide an award for the 2022-23 school year without the CSE process to determine substantial regression and assess whether [REDACTED] is a structured learning environment. The appropriate remediation for the district's denial of a FAPE to the student for the time period claimed is for the CSE to convene at the earliest and consider reevaluations conducted prior to convening.
Other Relief:
Meaningful participation by Parent is not disputed in the case. Lastly, to the extent there are other relief requested in the DPC not specifically addressed at the evidentiary hearing, such relief are denied for lack of proof.
ORDER
Based on the Findings of Fact and Conclusions of Law and all evidence before the IHO, it is hereby ORDERED that:
1. The Committee on Special Education shall convene within 60 days of the date of this Order to review and revise as appropriate, the student’s educational program for the remainder of the 2022-23 school year if, as of the date of this decision, the CSE has not already recommended an educational program for the student for the 2022-23 school year;
2. The Committee on Special Education shall forthwith conduct reevaluation of the student and consider the reevaluation reports and request for a 12 month program when it convenes within 60 days of the date of this Order;
3. The Parent’s request that the New York City Department of Education be directed to provide and fund eight hours per week of SEIT or SETSS services for the 2022-2023 school year is denied;
4. The New York City Department of Education shall provide and reimburse or fund the related services mandate in its December 18, 2020 IESP for student;
5. The Parent’s request for an order to revise the December 18, 2020 IESP to provide a 12 month program for the 2022-2023 school year is denied;
6. Parent’s request for attorney fees is outside the scope of the IHO’s authority, and as such, not addressed by this decision.
The foregoing constitutes the order of the Impartial Hearing Officer.
Dated: October 17, 2022
__________________________________
Vandana Chak
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
_________________________________________________________________________________
IHO EXHIBITS
No.
Document
Date
Pages
I
Appointment of Hearing Officer
8-24-22
2
II
Due Process Complaint
8-5-22
6
III
Pendency Agreement
8-3-22
1
IV
Transcript
9-29-22
75
V
Transcript
9-12-22
8
VI
Transcript
9-1-22
15
VII
Transcript
8-02-22
13
VIII
Compliance extension
8-04-22
1
IX
Compliance extension
09-28-22
1
PARENT EXHIBITS
No.
Document
Date
Pages
A
Hearing Request
7/05/22
5
B (Joint 1)
IEP February 5, 2015
2/5/2015
19
C Contract July 1, 2022 07/01/2022 3
D
Excluded
E Web printout of Teacher Certification Undated 1
F Web printout of Teacher Certificate Undated 1
G Progress Report November 11, 2021 11/11/2021 5
H Ten day notice June letter 06/-/2022 1 JOINT EXHIBITS No.
Document
Date
Pages
1
IEP February 5, 2015
2-5-15
19
2
IESP
12-18-20
11
Footnotes
[1] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 36970 [1985].
[2] P3 is preschool to Grade 3.
[3] Pursuant to the pendency agreement executed by both parties—which remains in effect throughout the duration of the administrative hearing process—the student was to receive, in part, eight hours (or periods) per week of individual SEIT by private provider, (IHO Ex. III).
[4] (see http://www.oms.nysed.gov/rsu/).
[5] SEIT services are "for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities" (8 NYCRR 200.16[i][3][ii] [emphasis added]; see Educ. Law § 4410[1][k]).
[6] (8 NYCRR 200.1 (aaa)).