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FINDINGS OF FACT AND DECISION
Case Number: 232077
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., District # [REDACTED] Impartial Hearing Officer: Roberta Wolf
Date of Filing: 09/06/2022
Hearing Requested by: Parent
Date of Hearing: 11/02/2022
Record Close Date: 11/02/2022
Date of Decision: 11/17/2022
BACKGROUND
The Parent, through counsel, filed a Due Process Complaint (DPC) on or about September 6, 2022.
Parent alleges that the Department of Education (DOE) failed to create and implement an individualized education service plan (IESP) for the 2022-2023 school year; and also failed to provide the Student with five weekly periods of Special Education Teacher Support Services (SETSS) and related services, mandated by the Student’s previous IESP and to which she was entitled, per the Findings of Fact and Decision (FOFD) of a prior impartial hearing officer (IHO).[1] The Parent now seeks direct funding of those SETSS at an enhanced rate, issued to the provider of her choice, and an order that DOE provide or fund the related services at its standard rate.[2]
On this record, and as more fully discussed below, I find: (1) DOE failed to create and implement an IESP for the 2022-2023 school year; and (2) failed to provide previously mandated services to the Student, thereby denying the Student a free appropriate public education (FAPE) on an equitable basis, and warranting relief.
PROCEDURAL HISTORY
I was appointed on September 19, 2022. I held a prehearing conference on October 7, 2022, at which time the parties acknowledged that they must exchange all proposed exhibits for the pendency and due process hearings (both scheduled for November 2, 2022) no later than close of business, October 26, 2022.[3] The Parent submitted three exhibits for the pendency hearing.[4] Neither party provided any proposed exhibits or affidavits for the due process hearing. On November 1, 2022, the day before the hearings, Parent’s representative submitted an amended DPC; however, DOE objected to the amendment. The undersigned IHO asked Parent’s representative if the Parent wished to proceed with the due process hearing (with the original DPC) or withdraw that claim and refile the DPC as amended; Parent’s representative responded that the Parent would not withdraw and wanted to proceed.[5]
At the due process hearing, Parent’s representative renewed his request for the amendment and DOE renewed its objection.[6] The undersigned IHO reiterated to Parent’s representative that the DPC could not be amended without DOE consent because the Parent submitted the proposed amendment within five days of the due process hearing.[7] Both parties objected to each other’s proffered exhibits as untimely and none were admitted.[8] Both parties also requested an adjournment to offer evidence or live testimony at a later time, and those requests were denied, per the undersigned IHO’s directives at the aforementioned prehearing conference.
With respect to pendency, DOE argued that the FOFD ordered SETSS but no related services. Parent’s representative asserted that the FOFD addressed the only contested issue (i.e., the rate that DOE must pay for SETSS), but the prior IESP also mandated occupational therapy (OT) and speech-language (s/l) therapy.[9]
On the merits, both parties referenced the substantive contents of their inadmissible evidence and the undersigned IHO did not consider any of these factual assertions.
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 is classified with a speech or language impairment.[10] DOE did not provide the Student with an IESP for the 2022-2023 school year. The previous IESP dated May 23, 2018, mandated five weekly periods of group SETSS (bilingual Yiddish); two, weekly, 30-minute sessions of individual s/l therapy (bilingual Yiddish); and two, weekly, 30-minute individual sessions of OT.[11] DOE did not implement any of these services. The FOFD acknowledged the aforementioned services as mandated by the previous IESP, and the prior IHO issued a pendency order for the continuation of all of those services.[12] The only issues raised in the prior due process hearing pertained to DOE’s failure to provide SETSS and the rate of compensation to be paid to the service provider obtained by the Parent through an independent search.[13]
Pendency Includes Related Services
The IDEA and the New York State Education Law require that a student remain in her then-current educational placement, unless the student’s parents and the board of education
(a) the other party consents in writing; or (b) “the impartial hearing officer grants permission, except that the impartial hearing officer may only grant such permission at any time not later than five days before an impartial due process hearing commences.” [Emphasis added]).
otherwise agree, during the pendency of any proceedings relating to the identification, evaluation, or placement of the student.[14] Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships.[15] Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement.[16] The phrase, “then current placement” equates to either: (a) the placement described in the student’s most recently implemented IEP; (b) the operative placement actually functioning at the time when the due process proceeding was commenced; or (c) the placement at the time of the previously implemented IEP.[17]A prior un-appealed impartial hearing officer’s decision may establish a student’s current educational placement for purposes of pendency.[18]
Here, the FOFD only addressed the issue of the rate to be paid to the Student’s SETSS service provider; however, it also recognized the related services mandated by the IESP. As a result, I find that the Student is entitled to SETSS, OT, and s/l therapy for the 2022-2023 school year.
No Equitable FAPE Provided to the Student
The IDEA provides that children with disabilities are entitled to a free appropriate public education (FAPE).[19] 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).[20] A school district offers a student a FAPE when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) develops an IEP through the IDEA’s procedures that is reasonably calculated to enable the student to receive educational benefits.[21] 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.”[22]
v. New York City Dep’t of Educ., 2008 WL 4890440, at *20 (E.D.N.Y. Oct. 30, 2008); Bd. of Educ. v. O’Shea, 353
F. Supp. 2d 449, 455-56 (S.D.N.Y. Jan. 18, 2005); Application of a Student with a Disability, Appeal No. 14-024; Application of the Dep’t of Educ., Appeal No. 08-061.
2003); Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3d Cir. 1996).
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.[23] The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools.[24] However, under State law, parents who privately enroll their child with a disability in a nonpublic school may seek educational “services” by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made.[25] Then, the district of location’s CSE must review the request and “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].”[26]
The implementation of IESP services falls on the district of location insofar as “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.”[27] A district cannot be absolved of its statutory obligation to implement mandated services for the student through inactivity.[28] 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.”[29] Additionally, 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.
Here, DOE, which bears the burden of proof, [30] provided no admissible evidence to establish that it provided an IESP for the Student for the 2022-2023 school year, or that it implemented the SETSS, OT, and s/l therapy mandated by the Student’s prior IESP. As a result, on this record, I find that DOE failed to provide the Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.
Claim for Recovery at an Enhanced Rate Granted
In addition to my finding that DOE failed to provide the Student with statutorily required services (by failing to create an IESP for the 2022-2023 school year and failing to implement the Student’s previous IESP), the Parent seeks SETSS funding paid directly to the provider of their choice. As a preliminary matter, DOE does not assert that the Parent failed to cooperate or interfered in any manner with its obligation to provide the Student with a FAPE on an equitable basis for the 2022-2023 school year.
Here, the Parent requests $197 per hour[31]; however, they offered no admissible evidence at the hearing to substantiate that rate, nor any evidence whatsoever, such as a signed contract with a SETSS provider, invoices, or an accounting of services rendered and owing.[32] The only evidence in the record pertaining to an enhanced rate stems from the prior IHO’s order in FOFD authorizing $135 per hour. However, the undersigned IHO recognizes that the order pertained to the 2019-2020 school year and is not binding in any event.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
- DOE shall fund the Student’s SETSS, provided bilingually in Yiddish, in five weekly group periods, for the 2022-2023, 10-month school year.
- DOE shall issue payment for the Student’s SETSS directly to the provider of the Parent’s choosing, at the lowest hourly rate accepted by the service provider from DOE for the same or similar services within the last 12 months of this Order, within 30 days of receipt of invoices for services rendered.
- DOE shall provide or fund the Student’s occupational therapy, administered in twice weekly, 30-minute, individual sessions, for the 2022-2023 10-month school year, at its standard rate, within 30 days of receipt of invoices for services rendered.
- DOE shall provide or fund the Student’s speech and language therapy, provided bilingually in Yiddish, administered in twice weekly, 30-minute, individual sessions, for the 2022-2023 10-month school year, at its standard rate, within 30 days of receipt of invoices for services rendered to the Student.
SO ORDERED.
November 16, 2022
/s/ Roberta Wolf, Esq.
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.
DISTRICT EVIDENCE
Exhibit | Title | Date | Pages |
1. | None. |
PARENT EVIDENCE
Exhibit | Title | Date | Pages |
A. | Request for Impartial Hearing | 9/6/2022 | 4 |
B. | Individualized Education Services Program | 5/23/2018 | 9 |
C. | Findings of Fact and Decision | 4/11/2020 | 6 |
Footnotes
[1] Ex. A.
[2] Tr. 32 1-7.
[3] Prehearing transcript pp. 16-20.
[4] Ex. A-C.
[5] Email titled, “Re: 232077 – [REDACTED] – Proposed Amended DPC for Filing and Processing,” dated November 2, 2022, at 1:00 p.m.
[6] Tr. 5 11-25, 6 1-2.
[7] 8 NYCRR 200.5(i)(7)(i) (A party may amend its due process complaint notice only if:
[8] 8 NYCRR 200.5j(3)(xii); Tr. 6 18-25, 7 1-2, 9 5-13.
[9] Ex. B-6.
[10] Ex. B-1.
[11] Ex. B-6.
[12] Ex. C-1.
[13] Ex. C-1 (“The parent . . . is seeking SETSS services at an enhanced rate . . .”); Ex. C-3 (“DOE does not dispute it did not offer a SETSS provider for the student The sole issue to be addressed is the rate of compensation.”)
[14] 20 U.S.C. § 1415(j); Educ. Law §§ 4404(4), 4410(7)(c); 34 CFR 300.518(a); 8 NYCRR 200.5(m); see, Student X
[15] Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982); see Wagner v. Bd. of Educ., 335 F.3d 297, 301 (4th Cir.
[16] Mackey v. Bd. of Educ., 386 F.3d 158, 163 (2d Cir. 2004), citing Zvi D., 694 F.2d at 906).
[17] Dervishi v. Stamford Bd. of Educ., 653 Fed. App’x 55, 57-58 (2d Cir. June 27, 2016), quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 (holding that the pendency provision “requires a school district to continue funding whatever educational placement was last agreed upon for the child”); see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 (2d Cir. 2015) (holding that a student’s entitlement to stay-put arises when a due process complaint notice is filed); Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 (3d Cir. 1996); Letter to Baugh, 211 IDELR 481 (OSEP 1987).
[18] 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 Dep’t of Educ., Appeal No. 08-009; Application of the Dep't of Educ., Appeal No. 07-140; Application of the Dep’t of Educ., Appeal No. 07-134).
[19] 20 U.S.C. § 1400 (d)(1)(A).
[20] 20 U.S.C. § 1401(9).
[21] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[22] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[23] 20 U.S.C. § 1412(a)(l)(A); Educ. Law § 4402(2)(a), (b)(2).
[24] See 34 CFR 300.137(a).
[25] Educ. Law § 3602-c(2).
[26] Educ. Law § 3602-c(2)(b)(l).
[27] Educ. Law § 3602-c(2)(a).
[28] Educ. Law § 3602-c(2)(a), (b)(l).
[29] Educ. Law § 3602-c(2)(b)(1).
[30] Educ. Law § 4404(1)(c); see R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014).
[31] Tr. 42 14-16.
[32] Tr. 6 25, 7 1-2, 34 16-21.