New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

INTRODUCTION

The Parent, through their representative, filed a Due Process Complaint (DPC) on or about September 2, 2022. (Ex. A) On September 21, 2022, the Parent filed an Amended DPC. (Ex. B).

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. The Parent alleged as follows. The Student has been diagnosed with CHARGE syndrome and is legally blind and deaf. On August 4, 2022 the Committee on Special Education (CSE) convened and created an Individualized Education Services Program (IESP) for the Student for the 2022-2023 school year, recommending 15 periods per week of special education teacher support services (SETSS) in a group, along with related services of hearing education services 2x30 1:1, vision education services 2x30 1:1, speech and language therapy (S/L) 2x30 1:1, S/L 1x30 in a group, physical therapy (PT) 2x30 1:1, and occupational therapy (OT) 2x30 1:1. The CSE also recommended the Student receive assistive technology (AT) in the form of an FM Unit full time daily. While the Parent agrees with the increase in SETTS, the IESP failed to address the Student’s needs for a paraprofessional and nursing services. Nor was the Student provided with a SETSS teacher by the DOE, and the Parent was unable to locate a qualified SETSS teacher at the DOE’s rate. The Parent located a qualified SETSS provider at an enhanced rate and seeks prospective/direct payment by the DOE to the SETSS provider. (Ex. B). The Parent also seeks DOE funding for the vision education services at an enhanced rate and related services authorizations (RSAs) for the remaining related services for the 2022-2023 school year. ^[1]

PROCEDURAL HISTORY

I was appointed on September 9, 2022. On October 24, 2022, the parties appeared for a pre-hearing conference. On November 28, 2022, the parties appeared for a pendency hearing. The Parent submitted three exhibits A-C into the record. At that time, the parties moved for an extension of the compliance period, which I granted. (IHO Ex. I). On November 29, 2022, I issued an Order on Pendency. (IHO Ex. II). On January 4, 2023, the parties appeared for a pre-hearing conference. At that time, the parties moved for an extension of the compliance period, which I granted. (IHO Ex. III). On January 23, 2023 the parties appeared for a hearing. A joint request to adjourn the hearing to February 3, 2023 was granted. On February 3, 2023, the parties appeared for a hearing. The parties indicated they believed resolution of the case was imminent and the case was adjourned. At that time, the parties moved for an extension of the compliance period, which I granted. (IHO Ex. IV). On February 13, 2023, the parties appeared for a status conference. I was informed that the case could not be resolved, and I scheduled a merits hearing for March 8, 2023. At that time, the parties moved for an extension of the compliance period, which I granted. (IHO Ex. V). On February 17, 2023, the DOE Representative requested a so ordered document subpoena of a Special Education Services Provider. On February 21, 2023 I provided the requested so ordered subpoena to the DOE. (IHO Ex. VI). On March 1, 2023 the DOE Representative made a request by email to adjourn the hearing. (IHO Ex. VII). On March 2, 2023, I responded by email to the DOE’s adjournment request, informing the DOE I was not adjourning the hearing, and that it could renew its application on the record at the hearing. (IHO Ex. VIII). On March 8, 2023, the parties appeared for the hearing. The DOE requested that the hearing be rescheduled until the Special Education Services Provider responded to the subpoena. The request to reschedule was denied. The DOE did not submit any evidence or call any witnesses. The Parent Representative relied on the three exhibits that had previously been submitted in connection with the pendency hearing. The Parent Representative and the DOE Representative made oral closings. (See March 8, 2023 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 Student has been classified with Multiple Disabilities. (Ex. C-1). The Student presents with motor, vision, speech, and hearing deficits, secondary to her diagnosis of CHARGE syndrome, which interferes with participation in some age appropriate activities. With on-going modifications and accommodations, the Student still benefits from special education services. (Ex. C-8). The CSE recommended the following special education programs and services in the Student’s IESP dated August 4, 2022: SETSS, 15 periods per week direct service, group service; hearing education services, 1:1, two 30-minute sessions per week; vision education services, 1:1, two 30-minute session per week; S/L, 1:1, one 30 minute session per week; S/L, group service, one 30 minute session per week; PT, 1:1, two 30 minute sessions per week; OT, 1:1, two 30 minute sessions per week; FM Unit, 1:1, daily full time. (Ex. C-13,14). The IESP also recommends special transportation from the closest safe curb location to school, with a 1:1 paraprofessional and a vehicle that accommodates the Student’s walking aids. (Ex. C-17).

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]

Under New York State Education Law Section 3602-c, students with disabilities 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. The CSE of the district of location must develop an IESP in the same manner and with the same contents as an IEP.^[8] Responsibility for the implementation of services called for in a student's IESP falls on DOE.^[9] Furthermore, although it may be permissible for DOE to include the Parent in the identification of a particular service provided, “it does not follow that the responsibility to redress a parent’s inability to locate a provider is shifted permanently to the parent.” ^[10]

The DOE has the burden of proof on all matters at this hearing.^[11] It has both the burden of production and the burden of persuasion on each claim put forth by the Parent.^[12] Specifically, the DOE bears “the burden of demonstrating the appropriateness of its proposed IEP.”^[13] 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. ^[14]

Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.

I find that the DOE failed to meet its burden, presenting no witnesses or other evidence at hearing. I therefore find that the DOE failed to establish that it offered the Student a FAPE for 2022-2023 school year. Here, there was no dispute that the Student is entitled to special education services pursuant to the IESP dated August 4, 2022 (Ex C). In the Amended DPC, the Parent asserted that the DOE failed to provide the Student with the SETSS recommended in the August 4, 2022 IESP, and that the Parent could not locate a qualified SETSS provider available to service the Student at the DOE’s rate. The DOE, which bears the burden of proof, has failed to introduce any evidence to the contrary. The Parent requested that the DOE fund the Student’s SETSS and vision education services at an enhanced market rate for the 2022-2023 school year, and an order for related services authorizations (RSAs) for the Student’s the remaining related services mandated by the Student’s August 4, 2022 IESP. (Ex. B)

Here it is undisputed that the Student requires the special education and related services set forth in the August 4, 2022 IESP, and the DOE failed offer any evidence that it made such services available to the Student or identified any other outside providers that could provide the required services at the DOE’s rate. Because the DOE failed to implement the IESP by failing to provide the services recommended therein, it materially deviated from the IESP’s stated requirements and denied the Student a FAPE. ^[15]

ORDER

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

1. For the entire 2022-2023 school year, the DOE shall pay a qualified provider of the Parent’s choosing for the Student’s fifteen (15) 60-minute periods per week of SETSS, Direct Service, Group Service at an enhanced market rate, and shall issue payment directly to the provider within 30 days of submission of a copy of the invoice; and

2. For the entire 2022-2023 school year, the DOE shall pay a qualified provider of the Parent’s choosing for the Student’s two (2) 30-minute sessions per week of Vision Education Services, Individual Service at an enhanced market rate, and shall issue payment directly to the provider within 30 days of submission of a copy of the invoice; and

3. For the entire 2022-2023 school year, the DOE shall fund two (2) 30-minute sessions per week of Hearing Education Services, Individual Service by providing the Parent, within fifteen (15) days of this Order, with a Related Services Authorization (RSA); and

4. For the entire 2022-2023 school year, the DOE shall fund one (1) 30-minute session per week of S/L, Individual Service by providing the Parent, within fifteen (15) days of this Order, with an RSA; and

5. For the entire 2022-2023 school year, the DOE shall fund one (1) 30-minute session per week of S/L, Group Service by providing the Parent, within fifteen (15) days of this Order, with an RSA; and

6. For the entire 2022-2023 school year, the DOE shall fund two (2) 30-minute session per week of PT, Individual Service by providing the Parent, within fifteen (15) days of this Order, with an RSA; and

7. For the entire 2022-2023 school year, the DOE shall fund two (2) 30-minute session per week of OT, Individual Service by providing the Parent, within fifteen (15) days of this Order, with an RSA; and

8. For the entire 2022-2023 school year, the DOE shall fund a daily full time FM Unit, Individual Service by providing the Parent, within fifteen (15) days of this Order, with an RSA; and

9. For the entire 2022-2023 school year, the DOE shall provide the Student with special transportation accommodations/services consisting of transportation from the closest safe curb location to school, with adult supervision of a 1:1 paraprofessional in a vehicle that accommodates the Student’s walking aids.

SO ORDERED.

DATED: March 20, 2023

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] The Amended DPC included additional requests for relief that were not pursued at the hearing.

[2] 20 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] 34 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] Id.

[9] NY 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.”) See also Application of Student with a Disability, Appeal No. 16-008.

[10] Application of Student with a Disability, Appeal No. 17-034.

[11] Education Law § 4404(1)(c); M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 224-25 (2d Cir. 2012).

[12] 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).

[13] Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003).

[14] Appeal No. 17-105 at 8-9 (SRO January 22, 2018).

[15] Catalan v. District of Columbia, 478 F. Supp. 2d 73, 47 (D. D. C. 2007).