New York City Department of Education, Impartial Hearing Decision

NYSED # 576430 / NYC # 229115

FINDINGS OF FACT AND DECISION

Case Number: 229115

Student’s Name: REDACTED

Date of Birth: REDACTED

School District: N.Y.C. Dept. of Ed., District REDACTED

Hearing Requested By: Parent

Date of Hearing: 9/2/2022

Record Close Date: 9/2/2022

Date of Decision: 9/9/2022

Impartial Hearing Officer: Dr. Oren Varnai, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 2, 2022

For the Student:

• • REDACTED, Esq., of the Law Offices of REDACTED (hereinafter referred to as “Parents’ Attorney”)
• • REDACTED, Educational Director at REDACTED. (hereinafter referred to as “Educational Director”)

For the Department of Education (“DOE”):

• • REDACTED, Esq., attorney for DOE (hereinafter referred to as “DOE’s Attorney”)

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

REDACTED, a Minor, by and through his/her Parent(s),

PETITIONER FINDINGS OF FACT AND DECISION

against Case # 229115 THE NEW YORK CITY Dr. Oren Varnai, Esq.

DEPARTMENT OF EDUCATION, Impartial Hearing Officer

RESPONDENT

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.

The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.

II. Background and Procedural History

Petitioner is the parent of Student. On 7/13/2022, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”). The undersigned Hearing Officer was appointed to preside over this case on 7/28/2022. A Pre-Hearing Conference (“PHC”) was held on 8/16/2022.

There is no dispute that Student is entitled to special education, and the DOE’s Committee on Preschool Special Education (“CPSE”) has classified Student with a disability.^[1]

On 8/23/2022, a pendency hearing was held in the above matter virtually via WebEx, and an interim Pendency Order was issued on August 24, 2022.

DOE requested an adjournment of the Due Process Hearing (“DPH”) via email on September 1, 2022, which was at odds with the PHC Summary and Order requiring such request to be submitted at least 48 hours prior to the hearing. In addition, the stated reason for the request was to allow the DOE to obtain settlement authority to resolve the case. The Parent objected to the adjournment request on the date of the DPH, and the undersigned IHO denied the request as the issues in the case were limited to DOE’s failure to implement the agreed upon IEP services, no progress in settlement was made since the filing of the DPC, and because no resolution meeting was ever held despite the requirements outlined in 20 U.S.C. § 1415(f)(1)(B)(i); 34 C.F.R. § 300.51o(a).

In addition, despite repeated instructions to the DOE to file a Due Process Response (“DPR”), to include orders in the PHC Summary and Order, the Pendency Hearing, and in the email response to the DOE for the request for the adjournment, no DPR was filed. The DOE submitted its disclosures on the date of the hearing, which was not in compliance with the applicable law,^[2] but Parent’s Attorney did not seek to preclude disclosures as they only contained Student’s IEP, which Parent also disclosed. Being duplicative of Parent’s disclosures, the DOE’s disclosure of the IEP was unnecessary and excluded.

On 9/2/2022, a Due Process Hearing was held, whereby the DOE presented no witnesses, no documentary evidence, and did not cross-examine any of Parent’s witnesses. DOE’s Attorney waived his right to an opening statement, and although he indicated that he intended to submit an closing statement,^[3] it was not subsequently provided.

III. Applicable Standards

• • FAPE

A free and appropriate public education can be said to be offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.^[4] "[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP."^[5] The Supreme Court ruled that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement."^[6]

"Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"^[7] and the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA.^[8] Under the IDEA, if procedural violations are alleged, an IHO 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.^[9]

An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE.^[10] A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,"^[11] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."^[12] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"^[13] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"^[14] is what is required. School districts are not required to "maximize" the potential of students with disabilities,^[15] but are required to provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement.'"^[16] The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"^[17] and designed to be provided in the least restrictive environment (“LRE”).^[18] An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance,^[19] and outlines annual goals specifically designed to address the Student’s needs resulting from his disability in order to make progress in the general education curriculum^[20] through the use of appropriate special education services.^[21] Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives."^[22]

• • Dual Enrollment Under Educ. Law § 3602-c The District is required to offer a FAPE to all students with disabilities residing in the school district requiring special education services or programs.^[23] Nevertheless, the IDEA does not confer individual entitlement to special education or related services to student voluntarily enrolled in nonpublic schools.^[24] Although the IDEA requires the District to participate in the process of devising special education services available to students who are privately enrolled in nonpublic schools, these student are not entitled to receive some or all of the special education services they would receive were they enrolled in a District school.^[25] In New York, however, pursuant to Educ. Law § 3602-c[2], privately enrolled students may seek educational services by filing a request for them 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. The 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],"^[26] and "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.”^[27] State guidance for the definition of “equitable basis” means that that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district."^[28] In addition, "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program."^[29] This “dual enrollment” option under Education Law § 3602-c, outlines the services for which a public school district may be held accountable through an impartial hearing. 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.^[30]

Here, both Parties agree that the Student was eligible for the dual enrollment entitlements under the Education Law for the 2022-2023 school year, and the DOE presented no evidence to dispute that issue, or even attempted to. Therefore, Student’s entitlement to DOE-provided services is not in dispute.^[31]

• • Failure to Implement This case is analogous to a series of Office of State Review (“OSR”) appeals^[32] where claims that the District has failed to implement its own IEPs, leading parents to arrange for services on their own. Although those SRO decisions related to SETSS, the analogy holds for any service that the District has committed to, or found to owe, a student:

“SROs have noted an alarming level of dysfunction regarding the provision of SETSS to dually-enrolled students and the procedural safeguards that are supposed to protect students. That dysfunction has twisted itself into a murky dispute that the parents should not even be involved in, but for their efforts to locate services that the district was responsible to plan and provide for." ^[33]

"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."^[34] "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."^[35]

Although Parent is seeking prospective payment for the services mandated under the IEP, this is not a case of compensatory education. Therefore, Appeal No. 21-119, which has a similar fact-pattern, does not have the same difficulties enumerated therein with respect to Parent’s failure to provide evidence of payment to the service provider, or that there was a contractual relationship that bound Parent to pay for the services. Parent is merely requesting the implementation of services the DOE has agreed to but failed to.

• • Section 504 Claims Parents asserted a claim under Section 504 of the Rehabilitation Act for the school year in question. Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].”^[36] Under Section 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504’s] procedures.”^[37] An individual with a disability includes any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having an impairment.”^[38] However, only students who have a substantial limitation of a major life activity are entitled to a FAPE.^[39] Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others.^[40] The student’s parents bear the burden of proof, both in production and persuasion, on any claim under Section 504 of the Rehabilitation Act.^[41]

Section 504 requires that recipients of federal funds that operate public educational programs or activities must “establish and implement... a system of procedural safeguards that includes...an impartial hearing with opportunity for participation by the [student’s] parents or guardian and representation by counsel, and a review procedure.”^[42] Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504.^[43]

I find that Parent’s 504 claims are subsumed within the statutory framework of the IDEA, and that the Parents did not identify any specific regulatory requirement under 504 that is not subsumed under the IDEA and that would merit separate analysis and discussion. Therefore, I do not separately address factual determinations or analyze the 504 claims related thereto.

IV. Analysis

There was no dispute between the Parties that the June 3, 2022^[44] IEP was agreed upon, but that the services enumerated therein have not been implemented; this is the only issue in the case as Student attends a private preschool, but tuition for unilateral placement is not requested. The IEP was for a 12-month program, which includes a full-time one-to-one aide 5 times a week, 6 hours a day; 1:1 physical therapy (“PT”) 2 times a week, 30-minute sessions; 1:1 occupational therapy (“OT”) 2 times a week, 30-minute sessions; and 1:1 speech-language therapy (“SLT”) 2 times a week, 30-minute sessions. As outlined in the IEP,^[45] these sessions were to be provided during the July and August months as part of a 12-month program developed for Student, but the box for the summer months related to the 1:1 aide was not checked on this page of the IEP. On another page of the IEP,^[46] the 1:1 aide’s service is listed as projected to begin on “7/2022.” The DOE acknowledged during the Pendency Hearing that Student was entitled to this service over the summer months, and further clarified that since the authorization date listed on the IEP^[47] is “7/1/2022,” it meant that all of the services—including the 1:1 aide—were to begin on that date. During the DPH, the DOE did not present a case, provide any witnesses, or contest any of the Parent’s allegations in the DPC.

Using the Burlington-Carter analysis, and due to the DOE’s failure to present a case defending its provision of FAPE, I find that the DOE did not provide Student with a FAPE for the 2022-2023 school year in conformity with § 3602-c, as it relates to the services Student requires and failure to implement them. In addition, the DOE did not contest the appropriateness of those services as provided, nor an alternative mechanism, hourly rate, or challenge the qualifications of the providers. I find that the services Student is due are agreed to by the Parties, the appropriateness of the unilaterally obtained services is not in dispute, and therefore appropriate. Although the Parent is seeking prospective relief for the related services, I find that the only issue in this case is the implementation, thereby necessitating an order for Parent to arrange for these services until such time as the DOE implements them.

V. Order

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY

• • ORDERED that the DOE shall provide and implement, for a 12-month school 2022-2023 school year:
• • 1:1 Aide, 5 times a week, 360 minutes a day;
• • 1:1 Physical Therapy, 2 times a week, 30-minute sessions;
• • 1:1 Occupational Therapy, 2 times a week, 30-minute sessions; and
• • 1:1 Speech-Language Therapy, 2 times a week, 30-minute sessions.
• • ORDERED, that to the extent the above services are not being provided by the District, and, until such time as the District does provide these services directly or through a Related Services Authorization (“RSA”), DOE shall fund said services as follows:
• • 1:1 Aide/paraprofessional, 5 times a week, 360 minutes a day, with a provider of Parent’s choosing, until such time as the DOE implements the service, at a rate not to exceed $65 per hour;
• • 1:1 Physical Therapy, 2 times a week, 30-minute session, until such time as the DOE implements the service, at reasonable market rate;
• • 1:1 Occupational Therapy, 2 times a week, 30-minute sessions, with a provider of Parent’s choosing, until such time as the DOE implements the service, at a rate not to exceed $225 per hour;
• • 1:1 Speech-Language Therapy, 2 times a week, 30-minute sessions, with a provider of Parent’s choosing, until such time as the DOE implements the service, at reasonable market rate.
• • ORDERED that the DOE shall, within 15 days of receipt of invoices, reimburse Parent for the cost of services already paid for upon presentation of evidence of payment. DOE’s obligation to continue payment for these services for the 12-month 2022-2023 school year will cease once DOE begins to provide the services enumerated herein.

SO ORDERED,

Dated: 9/9/2022

Dr. Oren Varnai, Esq., IHO

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 – ADMITTED EXHIBITS

EXHIBIT NUMBER

DATE

DESCRIPTION

NO. OF PAGES

Parent’s

Exhibits:

A August 26, 2022 Due Process Complaint 3

B June 3, 2022 Preschool IEP 20

C August 26, 2022 Service Provider Affidavit

D March 21, 2022 Occupational Therapist Certification

E July 12, 2022 Provider Contract

F August 25, 2022 Affidavit in Lieu of Direct Testimony District’s Exhibits: None

IHO Exhibits:

None

Footnotes

[1] Ex. P-B.

[2] C.F.R. § 300.512(a)(3).

[3] Tr. p. 7.

[4] Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].

[5] Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009].

[6] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].

[7] R.E., 694 F.3d at 190-91.

[8] M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003].

[9] U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR §200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245.

[10] U.S.C. § 1415[f][3][E][i].

[11] Rowley, 458 U.S. at 203.

[12] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.

[13] Endrew F., 137 S. Ct. at 1001.

[14] Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379.

[15] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.

[16] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].

[17] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.

[18] U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR §200.1[cc], §200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132.

[19] CFR 300.320[a][1]; 8 NYCRR §200.4[d][2][i].

[20] CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR §200.4[d][2][iii].

[21] CFR 300.320[a][4]; 8 NYCRR §200.4[d][2][v].

[22] Endrew F., 137 S. Ct. at 1000.

[23] U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2].

[24] see 34 CFR 300.137[a].

[25] see 34 CFR 300.134, 300.137[a], [c], 300.138[b].

[26] Educ. Law § 3602-c[2][b][1].

[27] Id.

[28] Chapter 378 of the Laws of 2007–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," Attachment 1 at p. 11, VESID Mem. [Sept. 2007].

[29] Id.

[30] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.

[31] Although Student was dual-enrolled, she had an IEP in place and not an IESP.

[32] see e.g., Application of a Student with a Disability, Appeal No. 21-029; Application of a Student with a Disability, Appeal No. 20-141; Application of a Student with a Disability, Appeal No. 20-140; Application of a Student with a Disability, Appeal No. 20-115; Application of a Student with a Disability, Appeal No. 20-099; Application of a Student with a Disability, Appeal No. 20-094; Application of a Student with a Disability, Appeal No. 20-087.

[33] Application of a Student with a Disability, Appeal No. 20-087. Internal quotations omitted.

[34] 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 sub nom., Paulino v. NYC Dep't of Educ., 2021 WL 78218 [U.S. Jan. 11, 2021], reh'g denied sub nom., De Paulino v. NYC Dep't of Educ., 2021 WL 850719 [U.S. Mar. 8, 2021].

[35] Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993].

[36] C.F.R. § 104.33(a).

[37] C.F.R. § 104.33(b).

[38] C.F.R. §104.3(j)(1).

[39] U.S.C. § 705(20)(B)(i); 42 U.S.C. § 12102(2).

[40] See 28 C.F.R. § 35.108(c)(1)(ii).

[41] See e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990); S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007).

[42] C.F.R. § 104.36.

[43] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504-delegation-Signed.pdf.

[44] Ex. P-B.

[45] Ex. P-B-1.

[46] Ex. P-B-14.

[47] Ex. P-B-1.