New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 578030 - NYC: 230222

FINDINGS OF FACT AND DECISION

Case Number: 230222

Student’s Name^[1]:[Redacted] (“Student”)

Date of Birth: [Redacted]

School District: [Redacted], ESQ.

Hearing Requested by: [Redacted], ESQ.,(“Parent”)

Request Date/Date Complaint Filed: August 26, 2022

Date(s) of Hearing: February 6, 2023

Actual Record Closed Date: February 8, 2023

Date of Decision: February 11, 2023

Date of Distribution if Different than Decision Date: February 11, 2023 Hearing Officer:Agoston

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 6, 2023

For the Student:

[Redacted], ESQ

For the Department of Education:

[Redacted], ESQ.

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about August 26, 2022 (P-Exh. A).^[2]

On August 30, 2023, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA"), 20 U.S.C. §1415(f)(1). A Pre-hearing Conference was held on October 13, 2022. A hearing limited to the Parent's request for the issuance of an order concerning pendency entitlements was held on November 3, 2022 and I ordered that the Department of Education ("DOE") fund direct group special education teacher support services ("SETSS") for 5 periods per week in [Redacted], and continue to provide related services of individual speech and language therapy ("SLT") once per week for 30 minutes per session in [Redacted] and individual occupational therapy ("OT") once per week for 30 minutes in English per the Individualized Education Services Program ("IESP") dated February 3, 2022, for a 10-month program (P-Exh. B at 9;IHO-Exh. V). The hearing commenced and concluded on February 6, 2023. It was a closed hearing, and Parents were represented by [Redacted],, ESQ., and the DOE was represented by[Redacted], ESQ. The Parent entered into evidence exhibits (P-Exhs. A-C). The DOE entered no evidence exhibits.^[3]

The record was closed on February 8, 2023. The parties moved to extend the compliance date during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly, the requests for the extension of the compliance date were granted (T.10; 24;37; IHO-Exh. I-IV). The current record close date is February 8, 2023 and the decision due date is February 22, 2023.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

The Student was classified with a Learning Disability on the IESP dated February 3, 2022, (P-Exh. B at 1) and provided with the following services: direct group SETSS for 5 periods per week in[Redacted] and related services of individual SLT once per week for 30 minutes per session in [Redacted] and individual OT once per week for 30 minutes in English (P-Exh. B at 9). The Parent alleged in the DPC dated August 26, 2022, that the DOE failed to provide a free and appropriate public education ("FAPE") for the 2022-2023 school year as the DOE failed to provide a SETSS provider and related services providers who were willing to work with the Student at the standard DOE rate and that the Parent contacted independent SETSS providers and related service providers and none were willing to work without an enhanced rate (P-Exh. A at 2).

ISSUES

Did the DOE fail to provide a FAPE for the 2022-2023 school year and was the Parent entitled to direct group SETSS for 5 periods per week in [Redacted] at a reasonable market rate and related services of individual SLT once per week for 30 minutes per session in [Redacted] and individual OT once per week for 30 minutes in English per the IESP dated February 3, 2022, for a 10-month program the 2022-2023 school year?

FINDINGS OF FACT

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student but that education must be appropriate so that there is an opportunity for the student to make progress in his/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]).(Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student's unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is "reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances"(Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 [U.S. Mar 22, 2017]). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).The Court in Rowley also observed that states are not required under IDEA to maximize every disabled child’s potential (Rowley, 458 U.S. at 198). The Second Circuit further observed that the IDEA is not intended to "secure the best education money can buy" or "guarantee any particular level of education" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]) (internal citations and quotation marks omitted). FAPE is delivered by a school through the implementation of an appropriate IEP. See Endrew F. v. Douglas Cnty. Sch. Dist., 137 S.Ct. 988, 994 (2017). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]); Bd. of Educ. v. Schaefer, 923 N.Y.S.2d 579, 56 IDELR ¶ 234 (App. Div. 2011). The DOE has the burden of proof of both production and persuasion as to (a) whether FAPE was provided to the Student and (b) questions relating to relief, as the Parent was not seeking tuition for a unilateral placement in a private school. N.Y. Educ. Law § 4404; see also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 016);see also Application of a Student with a Disability, Appeal No. 11-032 Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

I find that the District did not contest any of the allegations in the DPC and agreed that there was no need for testimony or further evidence and that the Parent was entitled to direct group SETSS for 5 periods per week in [Redacted] at a reasonable market rate and that the DOE will continue to provide related services of individual SLT once per week for 30 minutes per session in [Redacted] and individual OT once per week for 30 minutes in English per the IESP dated February 3, 2022, for a 10-month program the 2022-2023 school year (T.33).

I find that the Parent agreed to resolve this case with a Findings of Fact and Decision for the DOE to fund group SETSS for 5 periods per week in [Redacted] at a reasonable market rate and continue to provide related services of individual SLT once per week for 30 minutes per session in [Redacted] and individual OT once per week for 30 minutes in English per the IESP dated February 3, 2022, for a 10-month program the 2022-2023 school year (T.32-33).

CONCLUSIONS OF LAW

I conclude that the Parent’s actions have been reasonable and consistent with the IDEA. See C.D. v. N.Y.C. Dep’t. of Educ., 15–CV–2177(ARR)(JO), 2016 WL 3453649, at *20 (E.D.N.Y. June 20, 2016). I find that the Parent has met her burden of proof with respect to the request for the Student for direct group SETSS for 5 periods per week in [Redacted] at the reasonable market rate and related services of individual SLT once per week for 30 minutes per session in [Redacted] and individual OT once per week for 30 minutes in English per the IESP dated February 3, 2022, for a 10-month program the 2022-2023 school year.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:

(1) that the DOE has failed to provide the Student with a FAPE for the 2022-2023 school year and that the Parent acted reasonably and the equities favor the Parent; and

(2) that the DOE fund direct group SETSS for 5 periods per week in [Redacted] at the reasonable market rate and continue to provide related services of individual SLT once per week for 30 minutes per session in [Redacted] and individual OT once per week for 30 minutes in English per the IESP dated February 3, 2022, for a 10-month program the 2022-2023 school year.

SO ORDERED.

DATED:February 11, 2023

/s/ Linda Agoston

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.

APPENDIX A – REDACTION IDENTIFICATION PAGE

Student’s Name:[Redacted]

Date of Birth: [Redacted]

School District:[Redacted], ESQ.

Parent’s Name:[Redacted], ESQ

SUBMIT THIS PAGE TO THE PARENT AND SCHOOL DISTRICT ONLY. DO NOT SUBMIT TO THE NYSED.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

DOE’S EXHIBITS

IHO’S EXHIBITS

Footnotes

[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.