New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 578168 - NYC: 230337

FINDINGS OF FACT AND DECISION

Case Number: 230337

NYS Case ID Number: 578168

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: Parent/Guardian

Date of Hearing: November 17, 2022

Record Close: December 8, 2022

Hearing Officer: Blueth Bromfield, Esq.

NEW YORK STATE EDUCATION DEPARTMENT

IMPARTIAL DUE PROCESS HEARING

REDACTED,

by and through his/her Parent(s),

Petitioners, FINDINGS OF FACT

AND DECISION

- against -

THE NYC SCHOOL DISTRICT,

BLUETH BROMFIELD, ESQ.

Respondent Impartial Hearing Officer

JURISDICTION

This case was appointed, the due process hearing was held, and a decision 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. § 300 et seq.; the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200; and/or Section 504 of the Rehabilitation Act.

PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (hereinafter, “IHO”) on Petitioners’ due process complaint (DPC), filed on or around August 29, 2022. (P - A).^[1] The resolution period expired without the parties reaching an agreement. This IHO was appointed on September 1, 2022. A status conference/pendency hearing was held on November 3, 2022. An initial hearing in this matter was held on, October 4, 2022. A closed hearings was held on November 17, 2022. The initial compliance date was November 12, 2022. Extensions were granted extending the compliance date to January 11, 2023. The record closed on December 8, 2022.

BACKGROUND

What follows below are the facts as per the DPC and disclosures. REDACTED (the student), born on REDACTED, is a child with a disability in need of special education and related services. The student has a disability classification of Speech or Language Impairment. The school year (SY) at issue in this DPC is the 2022-23 SY. For the 2022-23 SY, the student was placed at a private religious - REDACTED (the private school) by his parents but was receiving Special Education Teacher Support Services (SETSS) and related services from DOE through an Individualized Education Services Program (IESP).

On May 6, 2021, the Committee Special Education (“CSE”) convened for an IESP meeting for the student. The resultant IESP recommended SETSS, Direct Service, Individual Service, 7 periods per week; Counseling Services (CS), Individual Service, 2x30 minutes per week; Speech-Language Therapy (SLT), Individual Service, 2x30 minutes per week; and Occupational Therapy (OT), Individual Service, 2x30 minutes per week. (P - B). The parents agreed with the student’s program set forth in the May 6, 2021, IESP; however, the DOE failed to implement those services by providing a provider. The parents were unable to locate a provider for the recommended SETSS at DOE's standard rates as the providers they contacted were unable to service the student due in part to the specific assistance that the student requires, and due in part to the unavailability of providers. As a result, the parent independently located a SETSS provider for the 2022-23 SY at an enhanced rate. On or around August 29, 2022, the Parents filed the instant DPC as the district had failed to identify a provider for the SETSS services in the IESP. The DPC states that the parents are seeking the following relief: a pendency order awarding 7 hours per week of SETSS at an enhanced rate for the entire 2022-23 extended SY and funding of the student’s SETSS and related services at an enhanced rate for the entire 2022-23 extended SY.

THE PENDENCY HEARING

NOVEMBER 3, 2022

For the Department of Education:

REDACTED, DOE Representative

For the Student:

REDACTED, Parent’s Representative

Parent’s representative argued that the basis for pendency was the last agreed upon IESP dated May 6, 2021. (IHO - I). DOE’s representative did not contest that the May 6, 2021 IESP was the basis for pendency, and stated that DOE was not declining pendency but argued that DOE was only willing to implement pendency using providers from the DOE list.

THE MERITS HEARING

NOVEMBER 3, 2022

For the Department of Education:

REDACTED, DOE Representative

For the Student:

REDACTED, Parent’s Representative

REDACTED, Director of REDACTED, (Witness #1)

DOE’s representative stated that DOE was not putting on a prong I case, was waiving cross examination of parent’s witness #1, but she reserved the right to contest parts of the parent’s case.

The parent’s representative argued that DOE had the responsibility of implementing the IESP at the beginning of the SY; however, parents never received any information from DOE and had to reach out to an agency to locate a provider on their own. DOE should be providing services within two school days of the start of the SY. (P – D). DOE did not provide a provider list until September 29, 2022, four weeks after the start of school. The parent reached out to DOE’s providers on more than one occasion, but none of the providers were available. The student is in a religious school and has school six days per week, but all of DOE’s listed providers weren’t available, especially on Sundays. The student has had a provider since the beginning of the SY and the parents would like to continue with the current provider at the enhanced rate. Parent’s representative clarified that the requested relief was only for the 10-month SY and not for the 12-month extended SY and that the hearing is mainly seeking relief for the 7 hours of SETSS at the enhanced rate but all of the student’s related services are also included.

Relevant portions of the witness’ testimonies are as follows.

Witness #1 – Affidavit & Live Testimony

She is the Director of REDACTED, an agency that provides related services. She holds a Master’s degree in social work, a post-Master’s degree certification in play therapy, and she has worked in the Special Education field for over twenty years. The agency employs over one hundred certified special education teachers who provide direct individualized special education services to children ages 5-21 years throughout the five boroughs of New York City. In addition, the agency employs Board Certified Behavior Analysts (BCBA), who work in coordination with teachers, parents, and schools to implement behavior plans concurrent with the needs of the individual children serviced by the agency. The staff maintains ongoing communication with parents and provides them with data as to the progress or regression of their child. The agency issues quarterly progress reports to the families and the student’s school. The agency provides trainings to its teachers and service providers in various methodologies including a six-week course in Applied Behavior Analysis (ABA). She is familiar with the student as the agency has been providing related services to the student since the beginning of the 2022-23 SY. According to the instructor providing the student with SETSS, the student is easily stimulated and struggles with his focusing skills, retaining information, reading fluency, decoding skills, sounding out newly formed words, counting rotely after the number 50 and 1:1 correspondence after 50. The student requires verbal prompts and hand-over-hand to complete some sensory tasks, but he is showing progress. The school provides 1:1 focus work using a multi-sensory approach. The provider also uses ABA to work on the student’s focusing and being able to stay seated. The agency is willing and able to continue servicing the student for the remainder of the 2022-23 SY. The student will continue to make progress if he stays with the agency. The agency provides SETSS services at a rate of $225 per hour. This rate is consistent with rates charged by similarly qualified, skilled, and appropriate service providers in the New York City area.

On cross examination, the witness testified that as the Director of the agency she does not personally work 1:1 with the student. She does not know the exact start date, but she believes that the provider started servicing the student at the beginning of the SY on September 1, 2022. She does not believe that there was any lapse in service to the student since the beginning of the SY. She does not know the exact date when the parent first contacted the agency for services. The provider servicing the student is a reading specialist and an ABA specialist, and these skills are beneficial to the student, but, as per the IESP, the student does not necessarily need a provider with these skills.

ISSUE

The issue is, did the district fail to provide the student a FAPE by failing to implement the services that it recommended for the student in the IESP?

RULE OF LAW

Pendency The pendency provisions of the Individuals with Disabilities Education Act (IDEA) and the New York State Education Law require that

"… during the pendency of any proceedings [relating to the identification, evaluation or placement of a child with a disability], unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child...until all such proceedings have been completed" (20 U.S.C. § 1415[j]; see, 34 C.F.R. § 300.514[a]; Education Law § 4404[4]; 8 NYCRR 200.5[l][1]).

Federal regulations provide that a child with a disability must remain in his or her current educational placement during the pendency of any administrative or judicial proceeding, unless the State or local agency and the child's parents agree otherwise. (34 CFR 300.514[a]). Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F.2d 904 [2d Cir. 1982]; Drinker v. Colonial School Dist., 78 F.3d 859 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and “strip schools of the unilateral authority they had traditionally employed to exclude disabled students... from school” (Honig v. Doe, 484 U.S. 305 [1987]). It does not mean that a student must remain in a particular site or location (Concerned Parents and Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751 [2d Cir. 1980], cert. denied 449 U.S. 1078 [1981]; Application of the Bd. of Educ., Appeal No. 99-90), or at a particular grade level (Application of a Child with a Disability, Appeal No. 95-16).

Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Mackey v. Bd. of Educ., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase “then current placement” has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced (Murphy v. Bd. of Educ., 86 F. Supp. 2d 354, 359 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2002]; Application of a Student with a Disability, Appeal No. 14-024). The U.S. Department of Education has opined that a student’s then-current placement would “generally be taken to mean current special education and related services provided in accordance with a child's most recent [IEP]” (Letter to Baugh, 211 IDELR 481 [OSEP 1987]; see, Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]). However, if there is an agreement between the parties on placement during the proceedings, it need not be reduced to a new IEP, and it can supersede the prior unchallenged IEP as the then-current placement (Evans, 921 F. Supp. at 1189 n.3; see, Bd. of Educ. v. Schutz, 137 F. Supp. 2d 83 [N.D.N.Y. 2001], aff'd, 290 F.3d 476, 484 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]).

Moreover, a prior unappealed impartial hearing officer’s decision may establish a student’s current educational placement for purposes of pendency (Student X, 2008 WL 4890440 at *23; Letter to Hampden, 49 IDELR 197 [OSEP 2007]; Application of a Student with a Disability, Appeal No. 08-107; Application of a Student with a Disability, Appeal No. 08-050; Application of the Department of Educ., Appeal No. 08-009; Application of the Department of Educ., Appeal No. 07-140; Application of the Department of Educ., Appeal No. 07-134). In addition, if “a state review official in an administrative appeal agrees with the child’s parents that a change of placement is appropriate, that placement must be treated as an agreement between the State and the parents” for purposes of establishing the student’s current educational placement (34 C.F.R. § 300.518[d]; see 8 NYCRR 200.5[m][2]; Schutz, 290 F.3d at 482).

3602-c The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education (FAPE) (20 U.S.C. § 1400 [d][1][A]. A board of education must offer a 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]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (IEP) (34 C.F.R. § 300.13). 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]).

This case involves a parentally placed student with an individualized education services program (IESP) rather than an IEP. Under New York State Education Law section 3602-c, students with disabilities who are placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP from the public-school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them. The CSE of the district of location must develop an IESP in the same manner and with the same contents as an IEP. See, Memorandum from James P. DeLorenzo, re: Chapter 378 of the Laws of 2007, New York State Education Department, Sept 2007. A parent who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location. See, Id. at 5. While the statutory scheme of Education Law section 3602-c places the responsibility of selecting and placing the student in a nonpublic school on the parent, the implementation of the services called for by a student’s IESP falls on the district. See, Application of Student with a Disability, SRO Appeal 16-008. “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”. See, Educ. Law § 3602-c[2][a]. 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. As per a New York State Education Department guidance document, the term "equitable basis" means 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. See 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, September 2007. Additionally, unlike the provisions of the IDEA, section 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404. See, SRO Appeal 16-008.

While it may very well be permissible for a district to include the parent in the identification of a particular provider, especially if the parent is willing and able to do so, it does not follow that the responsibility to redress a parents’ inability to locate a provider is shifted permanently to the parent. See, Application of Student with a Disability, SRO Appeal 17-034. A district cannot be absolved of its statutory obligation to implement SETSS for the student simply by asserting that the parents did not engage the services of the SETSS providers of whom the district referred them. Id. The district has the obligation to provide services in conformity with the IESP. See, Educ. Law § 3602-c(2)(a), (b)(1); 20 U.S.C. § 1401(9)(D); 34 CFR 300.17(d); see also 20 U.S.C. § 1414(d); 34 CFR 300.320.

Burden Of Proof The burden of proof, including the burden of persuasion and burden of production, is on the DOE to show that it provided FAPE to the student, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. Thus, the school district bears the burden of proof on the first and third prongs of the Burlington test and the parent has the burden of proof for the second prong. See N.Y. Educ. Law § 4404(1)(c).

APPLICATION AND CONCLUSIONS OF LAW

Pendency

I find that the basis for pendency is the May 6, 2021 IESP. I credit the parent’s testimony and evidence. The district did not contest pendency, did not put on a case and only argued that parents should use the providers from its list. DOE, thereby, failed to meet its burden of demonstrating a basis for pendency and/or establishing that the parent’s basis for pendency was incorrect. Based on the foregoing the basis for the student’s pendency placement is the May 6, 2021, IESP, the last agreed upon program.

On The Merits

After considering all the evidence, the arguments of counsel, as well as the legal research, I find as follows. The student's eligibility for special education and related services is not disputed by the parties. DOE did not put on a case and did not provide any witnesses. Both parties agree that the student is entitled to the services recommended in the IESP. The district, however, did not make arrangements for the SETSS services or identify a provider, and thus, the district failed to perform its duty. In addition, the responsibility of locating a provider was assigned to the parents; yet as of the date of the hearing, the district had not funded the services independently identified by the parent. The district failed to meet its obligation to implement the SETSS services in the student's IESP. The district denied the student appropriate equitable services for the 2022-23 SY. The DOE must implement/fund the agreed upon IESP services. DOE’s representative argued that the IHO should not make any award for related services other than SETSS services as the DPC appears to only request relief for the SETSS services and there is no allegation that DOE did not provide the other related services in the DPC. I agree with the district here. The record fails to establish that DOE failed to provide the other related services and parents expressly stated that the student was receiving his other related services and parent’s main concern was the SETSS. (T – 17). Parents ask that the SETSS services be funded for its chosen SETSS provider at an enhanced rate of $225 per hour. Witness #1’s testimony established that the SETSS provider had training and skills in the areas of reading and ABA specialist, but the student was not in need of a provider with these skills. As with most services, the provider’s rate likely reflects their skill level, but DOE should not be required to pay for providers with skills sets beyond that which the student needs. Thus, the SETSS services should be funded at a rate of $195 per hour.

In an effort to contest the parent’s case, the DOE made a series of arguments that were not valid. DOE argued that the parents did not show that there was any lag in services since the beginning of the SY, but it is not the parent’s burden to establish a lag in service to be awarded relief, but rather DOE’s burden to show that there was no lag in providing for the student’s services, which it did not do. Also, the absence of a lag was attributable to the parent’s efforts in finding a provider and not from DOE performing its duty. DOE agrees that the student is entitled SETSS services but does not believe that the services should be provided at an enhanced rate, and instead recommended DOE’s rate of $41.98 per hour for 1:1 SETSS. DOE’s rate is very unreasonable. DOE argues that parents did not provide DOE prior notice that they were having issues with finding a provider and DOE cannot fix a problem that it did not know existed. However, it was DOE’s duty, and not the parent’s, to find a provider so the student could receive his services. Lastly, DOE argued that the availability of the providers on DOE’s list could have changed between the date the list was sent, September 29, 2022, and the date when parents reached out to the providers, November 6, 2022. Parent persuasively countered that the DOE provider outreach took place on November 6, 2022, because parent did not want to disrupt the student as he was comfortable with the provider parents found since the beginning of the SY. Accordingly …

ORDER ON PENDENCY

It is hereby:

ordered that the student’s pendency program is SETSS, Direct Service, Individual Service, 7 periods per week; CS, Individual Service, 2x30 minutes per week; SLT, Individual Service, 2x30 minutes per week; and OT, Individual Service, 2x30 minutes per week, ordered that DOE shall fund the student’s pendency program at the enhanced rate for the duration of the instant DPC proceeding and any appeals thereof; however, such enhanced rate shall be no higher than the lowest rate charged by the same provider to the district for substantially similar work during the preceding six months, ordered that pendency shall be effective as of the date of the filing of the parents’ due process request dated September 1, 2022.

IT IS SO ORDERED.

Dated: December 8, 2022

/s/ Blueth Bromfield

Blueth Bromfield, Esq

Impartial Hearing Officer

ORDER ON THE MERITS

Based upon the foregoing, it is hereby:

• • ORDERED that the New York City Department of Education failed to provide the student a FAPE for the 2022-23 SY;
• • ORDERED that Respondent shall implement/fund the students SETSS services in the IESP at the enhanced rate of $195 per hour from the date of this decision to through the remainder of the 2022-23 SY.

IT IS SO ORDERED.

Dated: December 8, 2022

BLUETH BROMFIELD

_______________________________

BLUETH BROMFIELD, Esq.

Impartial Hearing Officer

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

NONE

PARENT EXHIBITS

• • 08/29/2022, Request for Due Process Proceedings, 5 pgs.
• • 05/06/2021, Individualized Education Services Program, 13 pgs.
• • 11/09/2022, Affirmation of services provided, 4 pgs.
• • Undated, NYC Special Education Operating Manual-Page 96, 1 pg.
• • 09/29/2022, Email from DOE on Possible providers, 1 pg.
• • 11/09/2022, Parent Outreach, 1 pg.
• • Undated, Certificate of Provider, 1 pg.

IHO EXHIBITS

• • 11/03/2022, Status Conference Transcript, 28 pgs.

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] The Hearing Officer Exhibits, if any, will be referred to as “(IHO- (followed by a roman numeral))”; Petitioners Exhibits, if any, will be referred to as “(P-(followed by a letter))”; and, Respondent Exhibits, if any, will be referred to as “(R-(followed by a number))”. References to the hearing transcript, if any, are denoted as (T (followed by a page number and line number)).