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CASE NUMBER: 579149 - NYC: 231202
CASE NUMBER: 231202
FINDINGS OF FACT AND DECISION
Case Number: 231202
Student’s Name: REDACTED REDACTED
School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: September 2, 2022
Date(s) of Hearing: October 4, 2022
October 19, 2022
November 10, 2022
December 16, 2022
January 11, 2023
February 9, 2023
Actual Record Closed Date: February 12, 2023
Date of Decision: February 12, 2023
Date of Distribution if Different than Decision Date: N/A
Hearing Officer: Jean Marie Brescia, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON October 4, 2022
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED ON October 19, 2022
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED ON November 10, 2022
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED ON December 16, 2022
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED ON January 11, 2023
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED ON February 9, 2023
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
REDACTED REDACTED, District Representative
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint filed on or about September 2, 2022. Ex. A.[1] On September 9, 2022, I was appointed by the New York City Department of Education to hear this matter. Parent alleges that the Department failed to provide equitable services as mandated by an Individualized Special Education Services Plan (“IESP”) for REDACTED for the 2022-2023 and seeks funding for SETSS for REDACTED at an “enhanced rate” and a Related Services Authorization (“RSA”) for related services. Ex. A at 3-4.
I conducted a prehearing conference on October 4, 2022. Counsel for REDACTED’s parents appeared; no one appeared on behalf of the Department. Tr. 2-3. At the prehearing conference, counsel for REDACTED’s parents clarified the relief requested, pendency was discussed, and a hearing date was scheduled for October 19, 2022. Tr. 3-5.
On October 19, counsel for REDACTED’s parents appeared; no one appeared on behalf of the Department. A pendency hearing was conducted at the request of Parent’s counsel, and exhibits A and B were admitted in evidence. An Order on Pendency was issues. The hearing on the merits was scheduled for November 10.
On November 10, counsel for REDACTED’s parents appeared; no one appeared on behalf of the Department. Counsel for REDACTED’s parents requested a continuance in order to provide additional time for the Department to make a determination as to resolving this matter through settlement and for Parent’s counsel to obtain documentation and prepare for the hearing. The application was granted, and the hearing was rescheduled for December 16.
On December 16, counsel for REDACTED’s parents appeared; no one appeared on behalf of the Department. Counsel for REDACTED’s parents requested a continuance in order to continue discussing a possible settlement with the Department. Tr. 26-27. The application was granted, and the hearing was rescheduled for January 11, 2023.
On January 11, counsel for REDACTED’s parents appeared; no one appeared on behalf of the Department. Counsel for REDACTED’s parents requested another continuance in order to continue discussing settlement with the Department. Tr. 33. The application was granted, and the hearing was rescheduled for February 9, 2023.
The hearing proceeded on February 9; counsel for REDACTED’s parents appeared, as did a District Representative on behalf of the Department. The parties requested that I issue a Findings of Fact and Decision based upon the record and the Department’s positions that it did not object to the services described in the 2021 IESP that its CSE had developed for REDACTED nor to funding the SETTS services mandated in that IESP at the market rate to be determined by the Department’s Implementation Unit and the related service of counseling via an RSA.
Extensions of the compliance date were requested by Parent’s counsel and then jointly by the parties, and written Orders of Extension was issued on November 10, and December 16, 2022, and January 11 and February 9, 2023. The reasons for granting the extensions are set forth in the Orders. The record was closed on February 12, 2023.
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. § 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.
ISSUES
REDACTED’s parents seek funding for SETTS that they obtained for REDACTED, who is parentally-placed in a non-public school. They also seek an RSA for the related service of counseling. At the hearing, the Department did not present evidence as to its provision of IESP services to REDACTED to for the 2022-2023 school year. The issues to be resolved are therefore:
What services is the Department responsible for providing to REDACTED as per the Department’s IESP?
Did the Department provide such services?
Should the Department be required to fund the services that REDACTED’s parents secured for REDACTED and issue an RSA for counseling?
Does the balance of the equities favor REDACTED’s parents?
FINDINGS OF FACT
REDACTED is a REDACTED year-old young man whose disability, for the purposes of the IDEA, is classified as learning disabled. He is parentally placed in, and attends, a general education program at REDACTED, a non-public religious school. Exs. A at 2-3, B at 1, 5.
REDACTED experiences challenges with general knowledge, comprehension, frustration, REDACTED, and academic functioning. He is below grade level in reading decoding and comprehension, writing, spelling, and math. Exs. A, B at 1-2.
The Department’s CSE developed an IESP for REDACTED at a meeting conducted on January 14, 2021. Ex. A at 3.
There is no dispute that this IESP mandates that REDACTED receive SETSS (four hours per week, direct in a group in REDACTED) and counseling (one 30-minute session per week in REDACTED). Tr. 2/9/23; see also Ex. A.
The Department did not provide the above-referenced services to REDACTED for the 2022-2023 school year. Ex. A.
The Department does not object to funding the above-referenced SETSS at market rate as determined by the Department’s Implementation Unit and does not object to issuing an RSA for counseling.
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, Appeal No. 07-008; Application of a Child with a Disability, 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 must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. REDACTED 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).
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.
In the instant case, I must also 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). “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, Appeal No. 21-245 at pp. 10-18 (description of districts’ responsibilities under § 3602-c and interplay with IDEA); see also Application of a Student with a Disability, Office of State Review No. 20-094; Application of a Student with a Disability, Office of State Review 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).
It is undisputed in this proceeding that the Department did not provide REDACTED with the IESP’s mandated complement of SETSS and counseling during the 2022-2023 school year. Since the Department was required by Education Law § 3602-c to provide such IESP-mandated services, and failed to do so, and REDACTED’s parents were left to their own devices to find a provider for such services, the Department should be required to pay for the services that it was otherwise required, yet failed, to provide to REDACTED.
Moreover, there is nothing in the record that REDACTED’s parents acted inequitably relative to the development of the IESP or in securing services for REDACTED.
Given the record, and the Department’s position that it does not object to funding REDACTED’s SETSS at the market rate as determined by the Department’s Implementation Unit and to issuing an RSA for counseling, as well as the arguments presented by the parties, I will exercise my equitable authority and order funding and services as described in the order below.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered that:
The Department of Education shall fund SETSS (four hours per week, direct in a group in REDACTED) for REDACTED, for the 2022-2023 10-month, 36-week school year.
The Department of Education shall pay reasonable market rates, as determined by the Department’s Implementation Unit, for the aforementioned SETSS.
The Department of Education shall issue a Related Services Authorization for REDACTED to receive counseling (one 30-minute session per week in REDACTED) for the 2022-2023 10-month, 36-week school year.
SO ORDERED.
DATED: February 12, 2023
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 Due Process Complaint dated September 1, 2022 6 pages
B IESP dated June 17, 2015 5 pages
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.”