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Findings of Fact and Decision
INTRODUCTION
The Parent, through their representative, filed a Due Process Complaint (DPC) on or about July 19, 2022. On August 23, 2022, the Parent filed an Amended DPC. In the Amended DPC, the Parent alleges that the Department of Education (DOE) failed to offer the Student a free appropriate public education (FAPE) for the 2022-2023 school year. (Ex. D).
The Parent alleged as follows. The recommendations in the Individualized Education Services Program (IESP) dated February 15, 2022 (Ex. E) are insufficient to provide the Student with a FAPE. The Student requires significantly more services than those provided in the IESP and requires that such services continue to be provided on a 12-month basis. The Student has been making progress utilizing the increased services ordered in a prior amended findings of fact and decision (FOFD) dated July 14, 2022 (Ex. B), which included a special education itinerant teacher (SEIT) one-to-one for nine periods per week, for a 12-month school year.
The Parent requests a finding that the DOE’s failure to recommend the continuation of the SEIT services is a denial of a FAPE; that the failure by the DOE to recommend an appropriate placement or sufficient services for the Student is a denial of a FAPE; that the failure of the Committee on Special Education (CSE) to consider an extended school year program is a denial of a FAPE; and that absent an up-to-date program, an order that the recommendations on FOFD 211068 dated July 14, 2022 continue for the 2022-2023 school year.[1]
PROCEDURAL HISTORY
I was appointed on August 3, 2022. A pre-hearing conference was held on August 22, 2022. On August 22, 2022, the parties agreed that pendency lay in prior unappealed FOFD 211068 ordering a SEIT for 9 hours per week, 1:1, for a 12-month school year from a private provider. (Ex. B) On August 23, 2022, the Parent filed the Amended DPC. (Ex. D) On September 23, 2022 a pre-hearing conference was held on the Amended DPC. On October 21, 2022, both parties appeared for the hearing. At that time, the parties moved for an extension of the compliance period, which I granted. (Ex. I) The DOE Representative made an opening statement, and submitted seven exhibits into the record on consent of the Parent. Included in the DOE’s evidence was a witness affidavit from the DOE Psychologist, which was accepted into the record. (Ex. 7) The Parent Representative cross-examined the DOE Psychologist, and the DOE rested its case. (See October 21, 2022 transcript) On November 22, 2022, both parties appeared for the continued hearing. At that time, the parties moved for a second extension of the compliance period, which I granted. (Ex. II) The Parent Representative made an opening statement, and submitted nine exhibits into the record on consent of the DOE. Included in the Parent’s evidence were written affidavits from the Parent (Ex. G) and the Program Director of the Special Ed Service Provider (Ex. H), which were accepted into the record. The DOE Representative cross-examined the Program Director only. Both representatives made oral closings. (See November 22, 2022 Transcript).
FINDINGS OF FACT AND DECISION
After a full review of the record generated at hearing, I make the following findings of fact and determinations.
The DOE Psychologist testified that she was part of the IESP team for the Student’s February 15, 2022 IESP (Ex. 1), and that the recommendations were made based on a psychological evaluation (Ex. 3), related services progress reports (Exs. 4-5), a special education teacher support services (SETSS) progress report (Ex. 6), discussions held during the IESP meeting and considerations from the Parent. (DOE Psychologist Aff. at ¶¶ 4-5) The DOE Psychologist testified the recommendation for seven periods of SETSS along with speech and language therapy (S/L) and occupational therapy (OT) was appropriate for the Student, and that any more than seven hours of SETSS would be inappropriate because the Student would be pulled-out for the entirety of his secular studies. (Id. at ¶¶ 6-7). On cross-examination, the DOE Psychologist acknowledged that SETSS could be provided at home outside of school hours, which would not require the Student to be pulled-out of his secular studies. (T. p. 29, L 19-25). He also acknowledged that the Student, a third-grader at the time, was reading well below grade level (T. p. 22, L 19-25) and his math skills were in the low average range. (T. p. 23, L 18-19). He did not know if the Student had exhibited any signs of regression. (T. p. 30, L 8-10).
The Program Director testified credibly as follows. He holds a master’s degree in general and special education and completed a post-master’s program in applied behavioral analysis (ABA). He has been Program Director of the Special Ed Service Provider for six years. (Program Director Aff. at ¶¶ 2-3). As Program Director he oversees a staff of special education teachers, as well as special education supervisors and consultants that provide support to the teachers. He oversees intake and the provision of services, which includes meeting with the providers working with the student and reviewing all progress reports on a quarterly basis. (Id. at ¶ 5). The Special Education Service Provider charges $195 per hour for 1:1 special education services. (Id. at ¶ 9). The Program Director is familiar with the Student, as the Special Ed Service Provider has been providing nine hours per week of SETSS to the Student for the extended 12-month 2022-2023 school year. (Id. at ¶¶ 13-14). The two providers assigned to the Student are both certified by New York State (NYS) to teach students with disabilities and are trained to teach literacy and comprehension to school aged children and adolescents. (Id. at ¶ 15). The Student is currently receiving his SETSS in his mainstream school outside of the classroom with a great deal of specialized instruction, and has shown steady progress with his SETSS providers. The Student’s academic and social delays however warrant the need for continued services of SETSS on a 1:1 basis nine periods per week for the extended 12-month 2022-2023 school year. (Id. at 22-23). He explained that maintaining the Student’s SETSS at nine periods per week was what was minimally necessary for him to maintain his mainstream placement in a least restrictive environment. (T. p. 58, L 1-18). The Program Director also explained that the Student is being provided with SETSS in the morning when his class is receiving religious instruction, and after school, so that he is not missing any secular classroom instruction. (T. p. 58, L 19-25, p. 59 L 1-9). The Program Director also explained that the Student’s disability resulted in him having a very hard time retaining information, that he needs a lot of repetition in order to retain information, and that nine periods of SETSS per week and a 12-month program were necessary for the Student to make progress and avoid regression. (T. p. 59, L 17-25, p. 60, L 1-4).
The Parent testified credibly as follows. The Student struggles in many academic areas and requires a lot of extra assistance. She believes that without the extra assistance he has been receiving, he will not be able to maintain his mainstream placement. (Parent Aff. at ¶ 2). The Student has been receiving a SEIT 1:1 in English, nine periods per week on a 12-month basis. However, at the IEP meeting on February 15, 2022, the IEP team decreased the SEIT/SETSS program to 7 hours per week, and recommended the SETSS and the Student’s other S/L and OT related services only be provided during the 10-month school year. It was unclear to the Parent why the IEP team decreased the special education services that the Student requires. (Id. at ¶¶ 3-5). On July 19, 2022, the Parent submitted a ten-day notice (TDN) to the DOE informing it of her intention to implement the Student’s pendency program of 9 period of SETSS per week and a 12-month program, but received no response. (Id. at ¶ 6; Ex. C). She therefore implemented the program herself by contacting the Special Ed Service Provider who has been providing the services. Paying for such services up front would be an extreme financial hardship for the Parent, and she would not be able to do so without financial assistance. She signed a contract obligating her to pay for the services in the event that the DOE does not pay the Special Ed Service Provider for services provided. (Parent Aff. at ¶ 7-10). She requests that the Student’s special education services be reimbursed at a reasonable market rate and that the DOE continue to fund the Student’s other related services for the rest of the school year. (Id. at ¶¶ 12-13).
The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services.[2] A FAPE “consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child ‘to benefit’ from the instruction.”[3] To establish that DOE offered a FAPE, it must show that (a) the IEP developed by its CSE through the IDEA’s procedures was reasonably calculated to enable the student to receive educational benefits; and (b) DOE complied with the procedural requirements set forth in the IDEA.[4] An appropriate program requires an IEP to accurately reflect the results of evaluations to identify the Student's needs,[5] and provide for the utilization of sufficient special education services.[6] DOE must also provide “an IEP that is ‘likely to produce progress, not regression.’”[7] The DOE has the burden of proof on all matters at this hearing.[8] It has both the burden of production and the burden of persuasion on each claim put forth by the Parent.[9] Specifically, the DOE bears “the burden of demonstrating the appropriateness of its proposed IEP.”[10] Further,
[U[nder State law as set forth above, the burden of proof has been placed 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]). In the instant case, there was no unilateral placement by the parent or request for tuition reimbursement.[11]
Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.
On this record I find that the DOE failed to meet its burden that the Student was provided a FAPE for the 2022-2023 school year. The main argument made by the DOE Psychologist to justify the reduction in the Student’s SETSS from nine hours a week to seven hours a week was that the Student would be pulled out of class “for the entirety of his secular studies.” (DOE Psychologist Aff. at ¶ 7). However, the Program Director for the Special Ed Service Provider credibly testified that the Student is being provided with his nine hours of SETSS in the morning when his class is receiving religious instruction, and after school, so that he is not missing any secular classroom instruction. (T. p. 58, L 19-25, p. 59 L 1-9). I further find that the DOE failed to establish that the provision of only seven hours of SETSS per week for a 10-month school year, with no services provided over the summer would allow the Student to remain in the least restrictive environment, and would not result in regression for the Student. The Program Director credibly testified that the Student’s specific disability made it very hard for him to retain information, that he requires a good deal of repetition in order to do so. I credit the Program Director’s expert opinion that the Student requires nine periods of SETSS per week and a 12-month program for both the SETSS and other related services for the Student to make progress and avoid regression. (T. p. 59, L 17-25, p. 60, L 1-4). I find that while the February 15, 2022 IESP recognized that the Student “has made some progress towards achieving his goals, but he continues to struggle and requires continued practice,” (Ex. 1-4), it failed to explain or justify how a reduction in SEIT/SETSS services from what the Student had previously been receiving or the provision of such services only for a 10-month school year would enable the Student to continue to make progress in his placement and avoid regression. I find that the February 15, 2022 IESP failed to provide the Student with sufficient educational instruction specially designed to meet his unique needs, and that 1:1 SETSS for nine periods per week and a 12-month school year for both the SETSS and all other related services are necessary for the Student to make educational progress, receive an educational benefit, and avoid regression. I further find that the rate of $195 per hour charged by the Special Ed Service Provider for 1:1 SETSS is a reasonable market rate for such services in New York City.
ORDER
- • NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
- • For the entire 12-month 2022-2023 school year, the DOE shall pay the Special Ed Service Provider, or other qualified provider of the Parent’s choosing, for the Student’s 1:1 SETSS for nine (9) 60-minute periods of per week in English at a reasonable market rate not to exceed $195 per hour, and shall issue payment directly to the Special Ed Service Provider or other qualified provider of the Parent’s choosing within 30 days of submission of a copy of the invoice;
- • For the entire 12-month 2022-2023 school year, the DOE shall continue to fund the Student’s related services:
- • OT, 1:1 in English, three (3) times per week for 30 minutes;
- • S/L, 1:1 in English, three (3) times per week for 30 minutes;
SO ORDERED.
DATED: December 15, 2022
__Philip Sturges____________
Philip P. Sturges
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
Footnotes
[1] While the Amended DPC also included a request for compensatory services, the Parent Representative did not seek such relief at the hearing.
[2] U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[3] Bd. of Ed. v. Rowley, 458 U.S. 176, 188-189 (1982).
[4] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[5] C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 C.F.R. § 300.320(a)(2); 8 NYCRR 200.4(d)(2)(iii).
[6] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[7] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[8] Education Law § 4404(1)(c); M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 224-25 (2d Cir. 2012).
[9] See Schaffer v. Weast, 546 U.S. 49 (2005); M.P.G. v. N.Y.C. Dep’t of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
[10] Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003).