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CASE NUMBER: 576534 – NYC: 229216
FINDINGS OF FACT AND DECISION
Student’s Name: REDACTED REDACTED
School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: September 29, 2022
Date(s) of Hearing: August 10, 2022
August 17, 2022
September 16, 2022
October 7, 2022
December 7, 2022
January 18, 2023
February 9, 2023
March 1, 2023
Actual Record Closed Date: March 25, 2023
Date of Decision: April 5, 2023
Date of Distribution if Different than Decision Date: N/A Hearing Officer: Jean Marie Brescia, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
August 10, 2022
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
REDACTED REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
August 17, 2022
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
REDACTED REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
September 16, 2022
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
REDACTED REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
October 7, 2022
For the Student:
REDACTED REDACTED, Legal Assistant
For the Department of Education:
REDACTED REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
December 7, 2022
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED
January 18, 2023
For the Student:
REDACTED REDACTED, Esq.
REDACTED REDACTED, Parent Student
For the Department of Education:
REDACTED REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
February 9, 2023
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
REDACTED REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
March 1, 2023
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
REDACTED REDACTED, Esq.
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint filed on or about July 6, 2022. Ex. A.[1] On July 22, 2022, I was appointed by the New York City Department of Education (the “Department”) to hear this matter. Parent alleges that the Department failed to provide a free appropriate education to REDACTED for the 2022-2023 school year by failing to recommend a 12-month program and SEIT services for REDACTED and seeks a 12-month school year and funding for ten hours per week of SEIT services and speech therapy for REDACTED for the 2022-2023 school year. Exs. A, G. REDACTED’s parents also seek compensatory related services for related services that REDACTED did not receive during the 2022-2023 school year. Ex. G.
I conducted a prehearing conference on August 10, 2022. Counsel appeared on behalf of REDACTED’s parents and the Department. At the prehearing conference, counsel for REDACTED’s parents clarified the relief sought in this proceeding, requested that SETSS rather than SEIT should be provided for REDACTED because she is no longer a preschool student, and requested a pendency hearing. Counsel were to confer as to a pendency agreement rather than pursuing a pendency hearing and order and as to possible settlement of this proceeding. The matter was rescheduled for August 17.
On August 17, counsel appeared on behalf of REDACTED’s parents and the Department. Counsel reported that the parties had entered into a pendency agreement; as a result, a pendency hearing and order was no longer necessary. Counsel requested additional time in order to try to settle this proceeding.
The hearing was scheduled for September 16. Counsel appeared on behalf of REDACTED’s parents and the Department. The Department had disclosed documents to REDACTED’s parents’ counsel, including a recent IESP, which, contended counsel for REDACTED’ parents, necessitated amending the DPC; Parents’ counsel requested a continuance in order to file an amended DPC. The request was granted, and the hearing was rescheduled for October 7.
Parent did not file an amended DPC until October 6. Ex. G. On October 7, I addressed the delay in the filing of the amended DPC and its implications for scheduling. The Department accepted the amendment on October 19; the acceptance was not “processed” by the Department and the Impartial Hearing Office until November 1. This acceptance reset the new resolution compliance date to December 1, and I scheduled a new hearing date for December 7.
On December 7, the hearing was rescheduled for January 18, a date mutually agreed upon by the parties, for the parties to continue to attempt to resolve this proceeding through settlement. The Department waived its opening statement.
Counsel for REDACTED’s parents and counsel for the Department appeared on January 18. The Department did not present the testimony of any witnesses, but it did offer documents in evidence. Department Exhibits 1 through 7 were admitted in evidence, and the Department rested its case. REDACTED’s parent testified. Parent’s Exhibits A through G were admitted in evidence.
The hearing continued on February 9. Parent’s Exhibit I, the affidavit of REDACTED’s educational director, was admitted in evidence. Parent’s Exhibit H (agreement between REDACTED and REDACTED’s parent) was not admitted in evidence, and the Department’s objection was sustained, because Exhibit H was disclosed on February 8, the day before the hearing. REDACTED’s mother was unavailable to participate in the hearing. The Department waived its cross-examination of REDACTED’s educational director.
Counsel presented closing statements. The Department argued that relief should be denied because REDACTED’s parent did not demonstrate the appropriateness of REDACTED’s services for REDACTED and admitted that she was not required to pay REDACTED for services provided to REDACTED. Tr. 103. Parents argued that the Department had denied REDACTED a FAPE by reducing her services from ten hours per week to five hours per week of special education services and by failing to implement any services for REDACTED. Parents reiterated their request for SETSS services and speech therapy “at the providers’ prevailing market rate.” Tr. 105-106. Parents also argued for an award of a “bank” of 46 hours of occupational therapy and 34.5 hours of counseling because the Department had never provided such IESP-mandated services to REDACTED. Tr. 106.
Counsel were asked to provide decisions of the State Review Officer that supported their respective arguments as to the “prong II” standard applicable to this proceeding. Tr. 108-109.
Counsel provided the requested decisions of the State Review Officer: from the Department, Application of a Student with a Disability, Appeal No. 22-046; and from Parents, Application of a Student with a Disability, Appeal No.21-245. Upon review of these decisions, I requested that the parties appear on March 9 2 in order to admit Parent’s Exhibit H (agreement between REDACTED and REDACTED’s parent) and to permit continued testimony, should the parties wish to present such testimony, and argument with respect to the “troubling question of the parent’s obligation to pay.” Tr. 115-116, 118-119. Exhibit H was admitted in evidence in order to complete the record. Tr. 116-117, 119-120.
The parties requested extensions of the compliance date, and written Orders of Extension were issued on August 10, October 18 and December 7, 2022, and February 9 and March 1, 2023. The reasons for granting the extensions are set forth in the Orders.
The record was closed on March 25, 2023, upon the Hearing Officer’s receipt and review of the transcript of the last day of the hearing.
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. Part 300, and the New York State Education Law § 4404, and its implementing regulation, 8 N.Y.C.R.R. § 200.5.
REDACTED’s parent, through counsel, consented to the conduct of the hearing via videoconference and to the transmittal of this decision by email. Tr. 3-4.
ISSUES
REDACTED’s parents seek funding for SETSS and speech-language therapy for REDACTED, who is parentally-placed in a non-public school. At the hearing, the Department did
2 By email dated February 17, I had directed that REDACTED’s parent appear on March 1. REDACTED’s parent did not appear. Tr. 122-124. not present testimony to defend its IESP for REDACTED for the 2022-2023 school year. The issues to be resolved are therefore:
1. What is the applicable legal analysis in this case, which involves a student parentally placed in a nonpublic school?
2. Do the SETSS and related services provided by REDACTED address REDACTED’s special educational needs?
3. Does the balance of the equities favor REDACTED’s parents?
a. Do REDACTED’s parents have a legal obligation to pay REDACTED for services it provides to REDACTED?
b. Are REDACTED’s parents unable to pay REDACTED for services it provides to REDACTED, and is such an analysis required in light of recent
Southern District precedent?
4. Does the evidence support REDACTED’s need for extended school year services?
5. Should compensatory related services be awarded?
FINDINGS OF FACT
1. REDACTED is a REDACTED-year-old girl whose disability, for the purposes of the IDEA, is classified as speech or language impairment. Ex. 1 at 1.
2. REDACTED attends REDACTED REDACTED (“REDACTED”), a nonpublic religious general education school. Tr. 68-69. REDACTED has attended REDACTED for the past seven years, since she was three years of age and in preschool. Tr. 69-70.
3. REDACTED experiences challenges with comprehension, receptive and expressive language, attention, sensory processing, vocabulary, social and emotional skills, and following directions. Tr. 63; Ex. 1 at 2-5; Ex. 4; Ex. 5; Ex. B at 3-5; Ex. D at 1-3.
4. REDACTED struggles with understanding the world around her, all areas of academics (reading decoding and comprehension, math computation and concepts, spelling, and writing), remaining on task, and participating in the classroom. Her delays in reading are significant. Tr. 62-63; Ex. 1 at 2-5; Ex. 4; Ex 5; Ex. B; Ex. D at 1-3; Ex. E; Ex. I at ⁋ 17.
5. According to her mother, REDACTED “falls back” in the summer when she does not have services. Tr. 70. REDACTED’s teachers and the school principal have also reported to her that REDACTED regresses during the summer months. Tr. 79.
6. The CPSE convened in November 21, 2016 to develop a preschool IEP for REDACTED. REDACTED’s mother participated in this meeting. Ex. B at 1-2.
7. The CPSE recommended that REDACTED attend a 12-month school year program and receive SEIT services (ten hours per week, 1:1 in REDACTED) and the related services of speech-language therapy (three 30-minute sessions per week, 1:1 in REDACTED), occupational therapy (two 30-minute sessions per week, 1:1), and counseling (one 30-minute session per week, 1:1 in REDACTED). Tr. 63-64; Ex. B at 23.
8. The CSE convened on June 18, 2019 and developed an IESP for REDACTED. Ex. D.
9. The CSE recommended that REDACTED receive SETSS (five periods per week as a direct group service in REDACTED); speech-language therapy (three 30-minute sessions per week individually in REDACTED), and occupational therapy (two 30-minute sessions per week individually) and eliminated summer services. Tr. 64-65; Ex. D at 5.
10. REDACTED’s mother located an agency, REDACTED, to provide services to REDACTED. Tr. 65.
11. During the 2020-2021 school year, REDACTED provided REDACTED with ten hours per week of SETSS. Ex. 5 at 1. The SETSS teacher worked with REDACTED on phonics, listening comprehension, retelling stories, addition and subtraction, basic math concepts, and social skills. Exs. 5, 6.
12. The CSE convened on June 10, 2021, and developed an IESP for REDACTED. REDACTED’s mother participated in this meeting. Ex. 1 at 1, 12; Ex. 2.
13. This IESP includes goals in the areas of comprehension, math computation, expressive and receptive language skills, and sequencing. Ex. 1 at 6-8.
14. The IESP recommended that REDACTED receive five periods per week of SETSS as a direct group service in REDACTED and speech-language therapy, three 30-minute sessions per week individually in REDACTED. Ex. 1 at 9; Ex. 3.
15. During the 2021-2022 school year, REDACTED continued to provide ten hours per week of SETSS to REDACTED at REDACTED. Ex. E.
16. The SETSS provider worked with REDACTED on phonics, spelling, sequencing and listening comprehension, basic math concepts, social communication skills, and following instructions. Ex. E.
17. REDACTED’s mother entered into a letter agreement with REDACTED dated July 1, 2022. Ex. H.
a. The document states that REDACTED will provide special education and related services providers for REDACTED. The document does not specify the type(s) of providers the agency will supply for REDACTED.
b. The document states that REDACTED’s mother is responsible for paying “any balance of any fee that is not covered by the NYC Department of Education (DOE) prospective payment” and that there is a schedule of fees annexed to the document.
There is no schedule of fees annexed to the document, nor does the document otherwise state the rates to be charged by REDACTED. Ex. H.
18. By letter dated and emailed on July 6, 2022, REDACTED’s parent, through counsel, informed the Department of her disagreements with the June 2019 IESP, that she was parentally placing REDACTED at REDACTED, and that she would be seeking payment from the Department for the services included in REDACTED’s preschool IEP. Ex. C.
19. REDACTED did not receive services during summer 2022.[3] Tr. 71-72, 77.
20. During the 2022-2023 10-month school year, REDACTED is providing REDACTED with ten hours per week of SETSS/SEIT and three 30-minute sessions per week of speech therapy. REDACTED is not receiving occupational therapy or counseling. Tr. 71-72, 77; Ex. I at ⁋ 13.
21. The SETSS providers are New York State certified bilingual special education teachers. Ex. F at 1-2.
22. The SETSS providers are supervised by a New York State certified special education teacher who is the educational director of REDACTED. Ex. I at ⁋⁋ 2, 4-5, 7-8.
23. The speech-language therapist is a New York State licensed bilingual speech-language pathologist. Ex. F at 3.
24. REDACTED provides REDACTED with SETSS at REDACTED and speech therapy at home. Tr. 77-78.
25. The SETSS supervisor testified that REDACTED prepared a progress report for REDACTED for the 2022-2023 school year which included the goals that the REDACTED providers were working on with REDACTED. Ex. I at ⁋⁋ 20, 22. This document was not offered in evidence.
26. The SETSS supervisor’s testimony includes a reference to “individualized sessions” with “specialized instruction.” Ex. I at ⁋ 21. No further details were provided about the nature of the services, or the goals, instructional methods or content, strategies, modifications or interventions utilized with REDACTED during the 2022-2023 school year. 27. The SETSS supervisor testified that “REDACTED has already shown signs of progress;” no further details were provided about REDACTED’s progress. Ex. I at ⁋ 23. 28. REDACTED charges $197.00 per hour for SETSS and $225.00 per hour for speech-language therapy. Ex. I at ⁋ 9. 29. REDACTED’s mother’s testified that she does not have to pay REDACTED for the SETSS and speech therapy that the agency provides to REDACTED. Tr. 82-83. 30. REDACTED’s mother has not paid REDACTED for the services that it has provided to REDACTED this school year. Tr. 83. 31. REDACTED’s mother explained that paying REDACTED for the services that the agency provides to REDACTED would be “difficult” for her. Tr. 66.
CONCLUSIONS OF LAW
The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education 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) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012); Application of a Child with a Disability, Office of State Review Appeal No. 07-008; Application of a Child with a Disability, Office of State Review Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).
A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; 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). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).
The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v). The school district must then implement the IEP. 8 N.Y.C.R.R. 200.4(e)(1), (3).
In New York, the school district bears the burden of proof in 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. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85. What is the applicable legal analysis in this case, which involves a student parentally placed in a nonpublic school?
In the instant case, I must consider that REDACTED is a “dually-enrolled” student, and, under New York State Education Law § 3602-c, parents of students with disabilities have the right and ability to select a nonpublic school willing to enroll their child, and places the burden of developing and providing appropriate special education programming upon the school district in which such school is located. The school district must develop an appropriate program for the student in the environment in which the student will receive his or her education (i.e. – the nonpublic school). Section 3602-c expressly states that a school district of location’s CSE “shall 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].” Education Law § 3602-c(2)(b)(1) (emphasis added). “The committee on special education shall 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. See, e.g., Application of a Student with a Disability, Office of State Review Appeal No. 21-
245 at pp. 10-18 (description of districts’ responsibilities under § 3602-c and interplay with IDEA); Application of a Student with a Disability, Office of State Review Appeal No. 20-094; Application of a Student with a Disability, Office of State Review Appeal No. 20-087. See also Bd. of Educ. of the Bayshore Union Free Sch. Dist. v. Thomas K., 14 N.Y. 3d 289 (2010) (relevance of individualized educational needs of dually-enrolled students).
Section 3602-c creates rights for parentally-placed students in New York that do not exist in federal law. See, e.g., Bayshore Union Free Sch. Dist., 14 N.Y. 3d 289; New York State Education Department, 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 September 2007 (“Guidance Document”); Application of a Student with a Disability, Office of State Review Appeal No. 22-046; Application of a Student with a Disability, Office of State Review Appeal No. 21-245; Application of a Student with a Disability, Office of State Review Appeal No. 20-094; Application of a Student with a Disability, Office of State Review Appeal No. 20-087. The message is clear: students with disabilities who are parentally-placed in nonpublic schools “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.” Guidance Document at Attachment 1, p. 11 (emphasis added).
The State Review Officer has looked to the principles of the Burlington/Carter line of cases to analyze parents’ claims for payment for services secured by parents for their children who are parentally-placed in nonpublic schools. See, e.g., Application of a Student with a Disability, Office of State Review Appeal No. 22-046 at 9-10. Under the principles of Burlington and Carter, a board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). The fact that the school or services selected by the parents are not approved by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement or other funding for services. See Florence County School District v. Carter, 510 U.S. 7 (1993). As a result, I proceed with the following analysis.
REDACTED’s parents argue that the Department denied REDACTED a FAPE by reducing her special education services from ten hours per week to five hours per week and by failing to implement any services mandated by her IESP. Tr. 105.
Here, the Department did not offer testimony to defend its outdated IESP for REDACTED and/or otherwise demonstrate that the services set forth in that document met REDACTED’s special educational needs. While the documents offered in evidence by the Department did explain REDACTED’s history of special educational needs, the documents did not explain how the Department planned to meet REDACTED’s special educational needs during the 2022-2023 school year. And, furthermore, the undisputed evidence demonstrates that the Department did not implement special education or services for REDACTED during the 2022-2023 school year. As a result, the Department failed to meet its evidentiary burden. At this juncture, the Burlington/Carter analysis, as applied by the State Review Officer to parental requests for funding for services for their children parentally placed in nonpublic schools, proceeds with consideration of the appropriateness of the parentally obtained services and equitable factors. Do the SETSS and speech-language therapy provided by REDACTED address REDACTED’s special educational needs?
REDACTED’s parents have the burden of proof regarding the appropriateness of the SETSS services that they secured for REDACTED. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85. The standard of proof is a preponderance of the evidence.
To meet the above burden, REDACTED’s parents must show that the educational services they secured for REDACTED address her identified special education needs. See C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of a Child with a Disability, Appeal No. 22-046 at pp. 9-10. The Second Circuit instructs that:
No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs . . . . To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.”
Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29 (2d Cir. 2020) (Summary Order). Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3.
The record evidence as to the SETSS and speech therapy provided by REDACTED does not meet the Second Circuit’s “totality of the circumstances”/instruction “specially designed to meet the [child’s] unique needs” standards by the preponderance of the evidence. As in Appeal No. 22-046 (at pp. 13-14), the evidence does not explain what REDACTED’s providers did to specifically address REDACTED’s unique needs and how the services provided by these educators and therapists specifically benefitted REDACTED—other than the limited, generic statements that SETSS and speech therapy are provided in school and at home, respectively, and are somehow “individualized.” See ⁋⁋ 24, 26 above. This is not useful evidentiary material and does not explain how the REDACTED providers are meeting REDACTED’s special education needs and does not assist me in understanding REDACTED as a learner and how the REDACTED providers are meeting her needs as a learner. Similarly, the generic, conclusory, unsupported and unsubstantiated statements—particularly in light of the absence of the progress report referenced in REDACTED’s supervisor’s affidavit—as to alleged progress must similarly be accorded little to no weight. 4 As a result, REDACTED’s parent does not meet her burden as to the appropriateness of the SETSS and speech therapy that she secured for REDACTED from REDACTED.
As a result, the evidence in the record does not demonstrate that the services provided by REDACTED to REDACTED during the 2022-2023 school year meet the Second Circuit’s “totality of the circumstances”/instruction “specially designed to meet the [child’s] unique needs” standard by the preponderance of the evidence. Does the balance of the equities favor REDACTED’s parents?
With respect to the third Burlington criterion, whether equitable considerations support REDACTED’s parent’s claims, the evidence establishes that REDACTED’ mother cooperated with the CSE by attending CSE meetings and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June [4], 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district). “Important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014). There is no indication in the record that REDACTED’s parents “obstructed” the Department’s efforts to offer REDACTED a FAPE.
Furthermore, under a Burlington/Carter analysis, services which are determined as reimbursable or fundable are reimbursed or funded by the school 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 cost and an inability to do so.” Application of a Student with a Disability, No. 21-245 at p. 17 (emphasis added). In short, for direct funding, as requested in this case, there must be proof of both the parents’ legal obligation to pay for services provided to their child and their inability to pay for those services. Id. at pp. 17-18. See also, e.g., D.A. v. New York City Dept. of Educ., 769 F Supp. 2d 403, 430 (S.D.N.Y. 2011); Application of a Student with a Disability, No. 22-88 at pp. 11-12; but see Ferreira v. New York City Dep’t of Educ., 22 Civ. 4993 (S.D.N.Y. March 14, 2023) (parents need not demonstrate inability to pay).
(a) Do REDACTED’s parents have a legal obligation to pay REDACTED for services it provides to REDACTED?
In the instant matter, the agreement that REDACTED’s mother entered into with REDACTED states that REDACTED’s mother is obligated to pay for services that REDACTED provides to REDACTED if the Department does not pay for the services. The agreement is poorly worded and is missing important terms (such as the cost of the services, the services to be provided, and the number of hours of services). Furthermore, REDACTED’s mother unequivocally testified that she does not have to pay REDACTED for the SETSS and speech therapy that the agency provides to REDACTED. See ⁋ 29 above. In light of this testimony; I am constrained to find that REDACTED’s parent is not obligated to pay for the REDACTED services.
(b) Are REDACTED’s parents unable to pay REDACTED for services it provides to REDACTED, and is such an analysis required in light of recent Southern District precedent?
The proof of “inability” to pay is nonexistent (tax returns would be advisable), and it is concerning that REDACTED’s parent has not paid anything to date for services from REDACTED. However, there is a recent decision from the Southern District, which is precedent controlling in this matter, holding that proof in inability to pay is not necessary. See Ferreira v. New York City Dep’t of Educ., 22 Civ. 4993 (S.D.N.Y. March 14, 2023). Thus, an analysis and a ruling on REDACTED’s parents’ inability to pay is neither necessary nor appropriate. Does the evidence support REDACTED’s need for extended school year services?
The preponderance of the evidence does not establish REDACTED’ need for summer services at this time. REDACTED did not receive services during summer 2022 (see ⁋ 19 above), and the record does not support her need for such services during the 2022-2023 school year. Should compensatory related services be awarded?
Parent appears to seek compensatory related services either for services not provided under pendency or services mandated by the most recent IESP, and not provided by the Department. If compensatory services are sought under pendency, then the parties should refer to, and if appropriate, seek enforcement of, the pendency agreement between the parties. If compensatory services are sought pursuant to the June 2021 IESP, REDACTED is not entitled to compensatory occupational therapy and counseling because such related services were not mandated under that IESP.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered that:
1. REDACTED’s parents’ request for payment of services provided by REDACTED to REDACTED during the 2022-2023 school year is denied.
2. REDACTED’s parents’ request for extended school year services is denied.
3. REDACTED’s parents’ request for compensatory related services is denied.
SO ORDERED.
DATED: April 5, 2023
Jean Marie Brescia, 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.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT’S EXHIBITS
A. Number Letter Date Name of Document of Pages DPC 7/6/2022 7 pages
B. 12 Months CPSE IEP 11/21/2016 26 pages
C. TDN 7/6/2022 3 pages
D. IEP 6/18/2019 7 pages
E. Progress Report 2/17/2022 6 pages
F. Provider Credentials 2/28/2021 3 pages
G. Amended DPC 10/6/2022 5 pages
H. Contract 6/14/2022 3 pages
I. Affidavit of Provider 12/8/2022 5 pages
DEPARTMENT OF EDUCATION EXHIBITS
1. IESP 6/10/21 12 pages DOE
2. Attendance Sheet 6/10/21 1 page DOE
3. PWN 6/25/21 5 pages DOE
4. Psychoeducational Evaluation 5/25/21 8 pages DOE
5. REDACTED Progress Report 11/19/20 5 pages DOE
6. REDACTED Progress Report 2/18/21 5 pages DOE
7. SESIS Events Log 9/9/22 4 pages DOE
Footnotes
[1] Exhibits shall be referred to as follows: Parents’ Exhibits are designated by a letter; the Department’s Exhibits are designated by a number; and Impartial Hearing Officer’s Exhibits are designated as “IHO.”
[3] The affidavit of the REDACTED supervisor states that services are provided for the “extended 2022-2023 school year.” Ex. I at ⁋ 13. The testimony of REDACTED’s parent does not support this contention.
[4] While the record contains some documentary evidence, in the form of REDACTED reports, about the areas of instruction covered by the SETSS providers during the 2020-2021 and 2021- 2022 school years, there is no such evidence regarding the 2022-2023 school year.