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CASE NUMBER: 579220 - NYC: 231263
FINDINGS OF FACT AND DECISION
Student’s Name [1]: [Redacted] (“Student”)
Date of Birth: [Redacted]
School District: None
Hearing Requested by: [Redacted] (“Parents”)
Request Date/Date Complaint Filed: September 2, 2022
Dates of Hearing: January 30, 2023 and February 16, 2023
Actual Record Closed Date: February 21, 2023
Date of Decision: February 23, 2023
Date of Distribution if Different than Decision Date: February 23, 2023 Hearing Officer: Agoston
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 30, 2023
For the Student:
[Redacted] ESQ., Attorney
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 16, 2023
For the Student:
[Redacted], ESQ., Attorney
[Redacted], Parent Student
[Redacted], Parent Student
[Redacted], Educational Director, [Redacted]
For the Department of Education:
None
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents' Due Process Complaint (“DPC") filed on or about September 2, 2022(P-Exh. A). [2]
On September 9, 2022, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA"), 20 U.S.C. §1415(f)(1) in the matter of S.V. (hereinafter "the Student"). A Pre-hearing Conference was held on October 13, 2022. A hearing limited to the Parents' 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 individual special education teacher support services ("SETSS") for 5 periods per week in [Redacted] and individual SLT twice per week for 30 minutes per session in [Redacted] and group SLT once per week for 30 minutes in [Redacted] per the Individualized Education Services Program ("IESP") dated May 12, 2021, for a 10-month program (Exh. B at 8;IHO-Exh. V). The hearing commenced on January 30, 2023 and concluded on February 16, 2023. It was a closed hearing, and Parents were represented by [Redacted] , ESQ., and [Redacted] ESQ. , and the DOE was defaulted for its non-appearance (T.32). The Parents entered into evidence exhibits (P-Exhs. A-I). No DOE evidence was entered as exhibits. [3]
The record was closed on February 21, 2023. The Parents' representative 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.57-582;IHO-Exhs. I-IV). The current record close date is February 21, 2023 and the decision due date is March 7, 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 Speech or Language Impairment on the IESP dated May 12, 2021, (P-Exh. B at 1) and provided with the following services: direct individual SETSS for 5 periods per week in [Redacted] and individual SLT twice per week for 30 minutes per session in [Redacted] and group SLT once per week for 30 minutes in [Redacted] per the IESP dated May 12, 2021, for a 10-month program (P-Exh. B at 8). The Parents alleged in the DPC dated September 2, 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 a related service provider who were willing to work with the Student at the standard DOE rate and that the Parents contacted independent SETSS providers and related service providers and none were willing to work without an enhanced rate (P-Exh. A at 2). The Parents seek a Final Order for the following: (1) that the DOE has failed to provide the Student with a FAPE for the 2022-2023 school year; (2) that the DOE continue to fund the program outlined in the IESP dated May 12, 2021 at the provider’s prevailing rate (P-Exh. A at 3). The Parents withdrew the request for the DOE fund a bank of compensatory periods for all services that the Student is entitled to under pendency (T.34).
ISSUES
Did the DOE fail to provide a FAPE for the 2022-2023 school year and were the Parents entitled to SETSS for 5 periods per week in [Redacted] and individual SLT twice per week for 30 minutes per session in [Redacted] and group SLT once per week for 30 minutes in [Redacted] for the Student per the IESP dated May 12, 2021, for a 10-month program at the provider's prevailing rate and did the equities favor the Parents?
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 Parents were 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 DOE defaulted by its non-appearance on the first date of the evidential hearing (T.22;32). I find that the DOE did not defend against any allegations in either DPC and did not present any evidence that it complied with relevant laws and provided FAPE. I find that the DOE did not establish that a FAPE was offered to the Student during the 2022-2023 school year.
The Southern District ruled on whether the Burlington/Carter analysis applied in a case procedurally analogous to this instant matter. M.N. and H.N. v. New York City Department of Education, 700 F.Supp.2d 356, 368 (S.D.N.Y 2010). I find that the Burlington/Carter analysis is not necessary when the relief sought is not funding for a unilateral placement, but rather the continuation of related services or SETSS services or SEIT services; however, I note that the Parents provided evidence to demonstrate progress. I find the evidence presented established progress (P-Exh. I). I credit the testimony of the Parents regarding the Student's progress(T.42). The Educational Director of the agency that provides the SETSS and SLT services credibly testified that the Student made slow and steady progress with the use of high motivational materials and that the Student's articulation skills increased(T.52). The Progress Report indicated that the Student presented with significant delays in reading, math, receptive and expressive language, and that he had a hard time focusing and that his SETSS provider used a phonics based approach with visuals and manipulatives to increase his knowledge of the alphabet and expand his vocabulary (P-Exh. I at 1-4).
I credit the testimony and evidence of the Parents regarding their unsuccessful attempts to find a SETSS who accepted the DOE approved rate (T.41;46;P-Exhs. F at 2; G at 2). I further credit the testimony and evidence of the Educational Director and find that the agency charged $197 per hour for the special education teacher who provided SETSS to the Student and charged a rate of $225 for the SLT provider (T.51; P-Exh. H at 2). I credit the evidence and the testimony and Affidavit of the Educational Director and find the requested rates reflected the expense to run the agency and to provide 1:1 supervision, professional developments and materials and that the qualifications of the providers as the Student's SETSS provider was certified in NYS to teach students with disabilities in bilingual [Redacted] and the Student's SLT provider was a bilingual [Redacted] NYC licensed speech pathologist (T.50-53;P-Exhs. E;H at 3).
CONCLUSIONS OF LAW
I conclude that the Parents' 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 Parents have met their burden of proof with respect to the request for the Student receive direct individual SETSS for 5 periods per week in [Redacted] and individual SLT twice per week for 30 minutes per session in [Redacted] and group SLT once per week for 30 minutes in [Redacted] per the IESP dated May 12, 2021, for a 10-month program (P-Exh. B at 8) for 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 Parents acted reasonably and the equities favor the Parents; and (2) that the DOE fund direct individual SETSS for 5 periods per week in [Redacted] and individual SLT twice per week for 30 minutes per session in [Redacted] and group SLT once per week for 30 minutes in [Redacted] per the IESP dated May 12, 2021, for a 10-month program for the 2022-2023 school year.
SO ORDERED.
DATED: February 23, 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:None Parent’s Name:[Redacted]
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
A. Due Process Complaint 09/02/2022 6 pages
B. IESP 05/12/2021 11 pages
C. Ten Day Notice 09/02/2022 2 pages
D. Contract 09/02/2022 3 pages
E. Provider Credentials 06/15/2021 2 pages
F. Affidavit of Father 02/07/23 3 pages
G. Affidavit of Mother 02/07/2023 3 pages
H. Affidavit of Provider 01/30/23 3 pages
I. Progress Report 11/39/2022 November 2022 6 pages
DOE’S EXHIBITS
None
IHO’S EXHIBITS
I. Decision on Extension 11/03/2022 1 page
II. Decision on Extension 12/192022 1 page
III. Decision on Extension 01/20/2023 1 page
IV. Decision on Extension 2/16/2023 1 page
V. Pendency Order 11/03/2022 4 pages
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.