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CASE NUMBER: 580538 - NYC: 232475
AMENDED FINDINGS OF FACT AND DECISION
Case Number: 232475
Student’s Name: REDACTED (“Student”)
Date of Birth: REDACTED
School District: New York City Department of Education (“District”)
Hearing Requested by: REDACTED (“Parent”)
Request Date/Date
Complaint Filed: 09/06/2022
Date(s) of Hearing: 11/04/2022
Actual Record Close Date: 11/18/2022
Date of Decision: 11/30/2022
Date of Distribution: 11/30/2022
Impartial Hearing Officer: Teresa R. Nuccio, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON:
For the Student:
Ricki Parks, Esq., Attorney for Petitioner
REDACTED (“Parent”)
REDACTED, Educational Director of REDACTED (“Director”)
For the New York City Department of Education:
Michelle Barrow, Esq., Attorney for Respondent (“District”)
NEW YORK CITY OFFICE OF ADMINISTRATIVE
TRIALS AND HEARINGS (O.A.T.H.)
SPECIAL EDUCATION HEARINGS DIVISION
REDACTED,
Petitioner,
-against-
NEW YORK CITY DEPARTMENT OF EDUCATION,
Respondent.
AMENDED
FINDINGS OF FACT
AND DECISION
Teresa R. Nuccio, Esq.
Impartial Hearing Officer
INTRODUCTION AND PROCEDURAL HISTORY
Petitioner, the student’s parent, filed a Due Process Complaint (“DPC”) on 09/06/2022 against respondent/district.[1]
The DPC alleges procedural and substantive violations of the Individuals with Disabilities Act (“IDEA”) 20 U.S.C. § 1400, et seq., 34 C.F.R. § 300.130 to § 300.147, 8 N.Y.C.R.R. § 200.5, et seq. and New York State Education Law § 3602-c, collectively resulting in a denial of a free appropriate public education (“FAPE”). It is alleged that the Committee on Special Education (“CSE”) convened a review meeting on 03/31/2022 but failed to: (a) fully and timely evaluate the student in all areas of suspected disability; (b) develop an Individualized Education Service Program (“IESP”) for the 2022/2023 school year to provide special education services on an equitable basis to the student who is parentally placed in a nonpublic school in the same manner as compared to other students with disabilities attending public or nonpublic school; (c) afford the parent the right to meaningfully participate in the development of the student’s IESP; (d) recognize the student’s need for an enhanced, comprehensive, clinically support, individualized, bilingual, special education instructional program; and (e) provide an adequate program of services to meet the student’s [unique] needs.[2] The DPC also requested an order of pendency based on the student’s most recent IESP dated 07/14/2021.[3]
I was appointed as the Impartial Hearing Officer (“IHO”) in this case on 09/20/2022. A pre-hearing conference was held on 10/07/2022, via WebEx. All parties were represented by counsel. The pre-hearing conference order scheduled the pendency hearing for 10/24/2022 and the due process hearing for 11/04/2022. On the date of the pendency hearing, the district did not contest the request for pendency an order dated 10/24/2022 was issued by this IHO.
The due process hearing was conducted on 11/04/2022. All parent and district disclosure and exhibits were stipulated into evidence without objection.[4] The district, defended the IESP dated 03/31/2022 in its opening statement on three grounds and requested denial of the relief demanded in the DPC. First, the parent did not make a timely written request on or before 06/01/2022 to the CSE for services.[5] Second, the service provider, Yes I Can (“agency”), is inappropriate to meet the unique educational needs of the student.[6] Third, the agency’s requested rate of $197 per hour for SETSS services is egregious.[7] The only evidence submitted by the district on its case in chief was the IESP dated 03/31/2022.[8] It is noted that the district did not offer evidence of a Prior Written Notice (“PWN”) or a response to the DPC.
The parent set forth in her opening statement that the CSE, without explanation, discontinued Physical Therapy, and Special Education Itinerant Teacher (“SEIT”) services without recommending Special Education Teacher Services (“SETSS”) in its place for kindergarten.[9] Further, the CSE did not evaluate the student in any area of disability before the 03/31/2022 meeting.[10]
The parent did not submit her own affidavit testimony or testify at the hearing. The parent submitted the affidavit testimony of the educational director of the agency.[11] The director was sworn in as a witness, but the district did not conduct a cross-examination.[12] This IHO clarified the director’s affidavit testimony and neither party asked follow-up questions.[13] Both parties rested without presenting rebuttal evidence and then presented their closing arguments.[14]
JURISDICTION
This due process hearing was held, and a decision in this matter is being rendered according to the IDEA and the New York State Education Law, together with their implementing regulations.[15]
The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer and meets all the qualifications and requirements outlined in both federal and state statutes which grant the IHO the authority to adjudicate this hearing.
BACKGROUND
As of the date of filing of the due process complaint, the student was REDACTED years old and classified as a “Preschool Student with a Disability” in need of bilingual services.[16] The 07/14/2021 IESP provided five (5) hours of bilingual SEIT services per week, Physical Therapy three (3) times per week for 30 minutes on a 1:1 basis (3x30, 1:1), and Occupational Therapy two (2) times per week for 30 minutes on a 1:1 basis (2x30, 1:1).[17]
The CSE meeting for the 2022/2023 school year was convened on 03/31/2022.[18] According to the 03/31/2022 IEP, the CSE relied upon the social history update and educational, related services and psychoeducational evaluations conducted on 09/06/2020 and 10/21/2020.[19] At that time, it was observed that the student exhibited significant gross motor delays.[20] The psychoeducational evaluation determined that the student was in the Average range in the categories of Full-Scale IQ, Verbal Comprehension, Receptive Language, Information, Block Design, Object Assembly, and Picture Memory;[21] and Low Average in Working Memory and Zoo Locations.[22] Although SEIT services and physical therapy were previously recommended following these 2020 evaluations, the 03/31/2022 IEP only recommended Occupational Therapy 2x30, 1:1.[23] The parent expressed disagreement with the recommendations and served notice to the district that she was placing the student with the agency to obtain special education services.[24]
ISSUES
The parent argued that the student still demonstrates extreme delays in the areas of receptive and expressive language, early literacy skills, processing skills, and social development, and is easily distracted with difficulty remaining on task.[25] Therefore, based upon her continuing unique circumstances, she still requires five (5) hours per week of SETSS, in addition to Occupational and Physical Therapy. [26] Without explanation, the district discontinued the student’s SETSS services and disputed the rate enhanced charged by the agency for Occupational Therapy ($225 per hour).[27] Since the district, did not implement any services for the student, the parent had no choice but to unilaterally place the student with the agency to receive services.
Accordingly, the parent is seeking an award of 5 hours per week of SETSS at the agency’s enhanced rate of $197 per hour; Occupational Therapy at the agency’s enhanced rate of $225 per hour, and (3) Physical Therapy three (3) times per week for 30 minutes on a 1:1 basis (3x30, 1:1), together with a Related Service Authorization to fund same, as the contract with the agency does include this related service.[28]
The district argued that (a) the educational director’s testimony did not establish that based upon the student’s unique needs, she needed SETSS; (b) the parent’s letter dated “6/2022”[29] is insufficient to establish that notice in compliance with Section 3602-c of the Education Law was provided on or before 06/01/2022 as it has no specific date, (c) the parent did not offer into evidence proof the notice was received by the district, [30] and (d) the agency is inappropriate to meet the student’s unique needs and their requested rates were egregious. [31]
FINDINGS OF FACT
After a full review of the record developed at the hearing and the written submissions, I make the following findings of fact. a) Preliminary Finding
I find that it is uncontested that the student resides within the City of New York and is parentally placed in a private school located in Brooklyn, New York for the 2022/2023 school year.[32] She is currently receiving special education services as set forth in the IESP dated 07/14/2022 pursuant to the pendency order dated 10/24/2022.[33] b) Notice
- • I find that the district did not offer evidence by affidavit or direct testimony from a witness with personal knowledge of the district’s procedures in the regular course of business for acknowledgment of receipt of such notices. Such testimony was necessary to establish through admissible evidence that the DOE did not receive notice on or before 06/01/2022. Therefore, the unsworn assertions by the district’s attorney in the opening statement and closing statements,[34] as well as in response to the IHO’s clarifying questions,[35] constitute hearsay without evidentiary support in the record. This hearsay is given no credible weight and disregarded by this IHO. It is also noted that the district did not call the parent as a witness on its direct case to establish when the notice was filed, and any acknowledgment received in response thereto.
- • c) Appropriate Services and Enhanced Rate I find that the district failed to offer evidence in the form of updated evaluations to justify not recommending SETSS in place of SEIT services on its direct case or in rebuttal to the director’s testimony. As to the related service of physical therapy, I find that the district failed to present an argument or evidence to support discontinuing physical therapy.
Next, I find credible the director’s testimony that the agency’s team provides uniquely tailored instruction to the student based upon observations in conjunction with a review of her IESP, with adjustments to instruction and services where needed.[36] Additionally, the director credibly testified as to the student’s present levels of performance as supported by the student’s progress as measured through quarterly assessments and meetings with providers and support staff.[37] She testified that “[the student] presents with extreme delays of receptive and expressive language, early literacy skills, and social development. She has poor processing skills and is easily distracted. She has difficulty staying focused on a given task. She requires the use of visual graphic organizers, high-interest materials, and multisensory manipulatives to engage in learning and maintain the information.”[38] The director further testified that, based upon a review of progress reports and session notes, the student has shown signs of progress with her current SEIT services and occupational therapy providers since the beginning of the 2022/2023 school year, but continues to need five (5) hours of SETSS services per week and one (1) hour per week of occupational therapy in a 1:1 setting for the 2022/2023 school year in light of her continuing academic and social delays.[39]
Concerning the appropriateness of the rate charged for services by the agency, I find that the district also failed to come forward with evidence as to the current market rate for either SETSS services or occupational therapy. The educational director credibly testified that the hourly rate for SETSS services is $197[40] and $225 for occupational therapy,[41] inclusive of one-on-one supervision, educational resources and support, professional development and materials [for the staff and providers[42]], employment taxes, and administrative and overhead costs for the agency.[43] The agency also provides a consulting team consisting of an occupational therapist, physical therapy consultant, academic consultant, psychologists, and two Board Certified Behavioral Analysts.[44] The educational supervisors employed by the agency hold Master’s degrees in Special Education.[45] The SETSS provider is New York State certified to teach students with disabilities[46] and earns $100 per hour, with the remaining $97 apportioned to the foregoing administrative and professional costs. Similarly, the licensed occupational therapist[47] earns $160 per hour, with the remaining $65 apportioned to the same administrative and professional costs.[48]
Accordingly, I not only find that the agency is appropriate to meet the student’s unique needs, but I also find the requested enhanced hourly rates to be reasonable and appropriate.
CONCLUSIONS OF LAW
a) The IDEA (20 U.S.C. §1400-§1482) and New York State Education Law § 4404 The IDEA provides that children with disabilities are entitled to a FAPE, consisting of specialized education and related services designed to meet a student’s unique needs,[49] provided in conformity with a comprehensive written IEP.[50]
The mandates of the IDEA are intended to prepare a student for further education, employment, and independent living and ensure that the rights of students with disabilities and parents of such students are protected with respect to the IEP’s creation and implementation.[51] When an IEP is developed within the State of New York, the district must comply with both the procedural requirements mandated by the IDEA and the Education Law of the State of New York, [52] i.e., that its recommended placement and program are reasonably calculated to enable the student to receive educational benefits.[53] This requires that the IEP be comprehensive, consisting of specialized education and related services designed to meet a student’s unique needs.[54] b) New York State Education Law § 3602-c, et seq. (“The Dual Enrollment Statute”) and § 4404
If a student is parentally enrolled in a nonpublic school, the IDEA does not confer the same entitlement to special education programs and/or related services as if they were enrolled in a public school.[55] In that instance, the IDEA mandates that the school districts must participate in a consultation process to make special education services available to parentally-placed private school children,[56] and authorizes the allocation of “a proportional share of federal IDEA funds to provide special education and related services” to these children with disabilities.[57] These services are commonly referred to as “equitable participation,” and are distinct from the FAPE requirement.[58] In New York, the district is statutorily mandated to offer suitable education opportunities on an equitable basis based on the individual needs of the nonpublic school student[59] as follows,
Boards of education of all school districts of the state shall furnish services to students [with disabilities] who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent or person in parental relation of any such student”…[60] 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.[61]
Offering services on “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... and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program.”[62] The purpose of the statute is “to allow private school students with disabilities equal access to the full array of specialized public school programs”.[63] As such, a “nonpublic student may not be denied services that a public school student would receive based solely upon his or her status as a nonpublic [school] student.”[64] Therefore, once such a request is received, it must “be reviewed by the committee on special education of the school district of location, which shall develop an individualized education service program [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an individualized education program.”[65]
If a dispute arises between a parent and a school district over the provision of services under an IESP, a “[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil” via an impartial due process hearing.[66] Where it is determined that IESP services were not appropriately provided, the New York State Education Law permits an IHO to redress the violation under the same broad authority available for violations of the IDEA.[67] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act,”[68] and damage awards are not available under the IDEA.[69] Thus, the tribunal “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[70] The foregoing criteria are essential in fulfilling the legislative intent of the IDEA that through “personalized instruction with sufficient support services,” the student will derive an educational benefit from that instruction so as “to achieve passing marks and advance grade to grade,”[71] and “enable the [student] to be involved in and make progress in the general education curriculum.”[72] This personalized instruction “must be appropriately ambitious in light of [the student’s] circumstances.”[73] An IESP must also open the door of public education to a disabled child in a meaningful way such that it is like produce progress, “not regression,” or only “trivial advancement.”[74] c) Enhanced Rates for Related Services
Here, the parent seeks to continue SETSS[75] and occupational therapy at an enhanced rate. However, the IDEA did not contemplate or address such disputes arising from the request for an “enhanced rate” for service providers. As a result, neither the IDEA nor New York State Education Law provides a legal framework within the due process system to afford an equitable remedy to students and parents to resolve enhanced rate disputes.[76] Adding to this unaddressed anomaly in the statute is the fact that here, the enhanced rate for related services is being determined within the context of an IESP, the terms of which are a question of New York State law, not federal law.[77] Accordingly, the process to challenge an IESP is governed by Education Law § 3602-c [2][b][1] which provides that a review of an IESP may only be sought under Education Law § 4404.[78] There is also little, if any, judicial case law on the issue of enhanced rates for services.
As a result, the New York State Review Office (“SRO”) has addressed this question on numerous occasions by looking to the Burlington/Carter tuition reimbursement approach for guidance.[79] Nevertheless, the SRO held that the burden of proof and persuasion remains with the district because to hold otherwise [in the absence of statutory authority or appellate case law], would result in impermissibly shifting to the parent the district’s burden to provide and fund the statutorily mandated services.[80] There is no provision or exception in Education Law § 4404 that shifts the burden to the parent in enhanced rate disputes.[81] The only exception that applies is when a parent seeking tuition reimbursement for a unilateral placement in a private school.[82] Therefore, an IHO and SRO are bound by the plain language of Education Law § 4404 [5] which defines tuition as “instructional services” as defined by the commissioner. This definition does not include the term “related services.” The commissioner has specifically defined related services as “developmental, corrective, and other supportive services as are required to assist a student with a disability,”[83] without reference to “instructional services” or the like.
The SRO has held that to meet its burden of proof in an enhanced rate dispute, the district must establish that 1) it did not violate the procedural requirements of the IDEA;[84] and 2) that the rates for the services as per an IESP are excessive or otherwise should be reduced,[85] by proffering evidence as to what it believes is an appropriate market rate.[86] Then borrowing from Burlington/Carter, the SRO has held that although the burdens of proof and persuasion do not shift to the parent under this scenario, the parent is not “disavowed” of the need to come forward with some evidence and establish that the rate requested is reasonable and appropriate in light of the provider’s certification, experience and education. [87] It has also been determined that it is not unreasonable for the parent to demonstrate a contractual obligation to pay the difference between the scheduled rate for the services and the rate being charged.[88] The contract need not be in writing, but the parent must establish the elements of the oral contract for the services to prevail,[89] and establish that the requested rate was the actual rate charged by an agency [emphasis added][90] as well as verify the number of service hours.[91]
It would be against public policy to either reimburse a parent without proof of payment or directly fund the services when the parent has no obligation to pay for the services. This would be tantamount to unjust enrichment not only in favor of the parent, but also the provider who may be charging an excessive rate that they would not otherwise be qualified to charge. Although the judicial case law is silent on this issue, the State Review Office has denied direct funding and/or reimbursement absent sufficient proof by parents.[92] However, this does not relieve the district from its initial burden of proof.
In the absence of clear guidance, this IHO looks to traditional contract law for further guidance. The district, to prevail on defending an enhanced rate claim, needs to establish that the parent or agency was enriched at the district’s expense and that the reimbursement or payment would be against “equity and good conscience” to grant the requested enhanced rate.[93]
In the alternative, the district may also prevail if it initially establishes that the parent failed to request services on or before the first day of June preceding the start of the school year for which services are being requested.[94]
ANALYSIS
a) IDEA and New York State Education Law
There is no dispute that the student is entitled to services under Education Law §3602-c. However, the district did not comply with the procedural and substantive requirements of the IDEA and New York State Education Law § 3602-c and § 4404 by failing to (a) conduct updated observations, and evaluations in all areas of disability before holding the CSE meeting and formulating the 03/31/2022 IESP; (b) afford the parent and the student’s teachers and service providers the opportunity to meaningfully participate in the creation of the IESP; (c) provide Prior Written Notice or a response to the due process complaint with an explanation for the termination of SEIT/SETSS services and physical therapy; (d) offer evidence that the parent’s June 2022 notice was not timely received by the district; and (e) implement occupational therapy per its recommendation in the 03/31/2022 IESP, or the terms of the 07/14/2021 IESP in violation of the “stay put” provisions of the IDEA, [95] necessitating an order of pendency. By failing to do so, the district did not provide services to the student on an equitable basis for the 2022/2023 school year. [96] b) Appropriate Services and Rate
I hold as a matter of law, that the district did not come forward with sufficient admissible evidence to meet its burdens on the following: (a) that the district without justification terminated the student’s SETSS services and physical therapy; (b) the parent allegedly failed to comply with the 06/01/2022 deadline to request services, and (c) the enhanced hourly rate charged by the agency to provide SETSS and occupational therapy is egregious or excessive.
It was the district’s burden to establish that the termination of SEIT/SETSS services and physical therapy was justified; the request for services was untimely, and the requested enhanced rates were either excessive or not the current market rates for services for SETSS and Occupational Therapy but failed to do so on all accounts. The parent did not have the obligation to come forward with evidence to the contrary.[97] Again, this would impermissibly shift the burden of proof to the parent. Therefore, I hold that pursuant to Education Law §§ 3602-c and § 4404 the student is entitled to 5 hours per week of SETTS and two (2) sessions per week for 30 minutes each on a 1:1 basis of occupational therapy (2x30, 1:1) at the enhanced rates, and physical therapy three (3) times per week for 30 minutes on a 1:1 basis (3x30, 1:1) through a Related Service Authorization.[98] c) Equities
Even though the burden does not shift, the parent demonstrated through the testimony of the educational director, demonstrated that an award of an enhanced rate would not unjustly enrich either the parent or the agency. The parent offered into evidence the contract with the agency evidencing an unconditional obligation to pay for the services in the event an award by the IHO was denied[99] and a breakdown of the charges which account for the services provided and the agency’s administrative costs associated with doing business as a special education service provider. The district failed to offer rebuttal evidence to defeat the parent’s good faith showing of the reasonableness of the enhanced rates. The district further failed to demonstrate that the parent acted unreasonably or failed to cooperate with the CSE. Accordingly, the equities favor an award of an enhanced rate for SETSS and occupational therapy to the parent and the agency.[100]
ORDER
NOW, it is hereby
ORDERED, that the relief demanded in the DPC dated 09/08/2022 is GRANTED; and it is further
ORDERED, that the respondent shall issue Related Service Authorizations and directly fund three (3) sessions of physical therapy per week, 30 minutes each on a 1:1 basis (3x30, 1:1) for the 2022/2023 school year; and it is further
ORDERED, that the respondent shall implement five (5) hours per week of SETSS services and two (2) sessions per week, 30 minutes each on a 1:1 basis of occupational therapy (2x30, 1:1); and it is further
ORDERED, that the respondent, New York City Department of Education, shall directly fund and pay the agency for the SETSS Services administered to date for the 2022/2023 school year starting from 09/08/ 2022 and that will be administered to the student during the 10-month 2022/2023 school year ending on 06/30/2023, less any amounts paid under pendency, for services provided to date at the enhanced rate of $197 per hour for a total amount of $39,400.00, with such payment to be made within thirty (30) days of the agency’s submission to the respondent of any invoices for such services; and it is further
ORDERED, that the respondent, New York City Department of Education, shall directly fund and pay the agency for Occupational Therapy administered to date for the 2022/2023 school year starting from 09/08/ 2022 and that will be administered to the student during the 10-month 2022/2023 school year ending on 06/30/2023, less any amounts paid under pendency, for services provided to date at the enhanced rate of $225 per hour for a total amount of $9,000.00, with such payment to be made within thirty (30) days of the agency’s submission to the respondent of any invoices for such services; and it is further
ORDERED, that the SETSS services and related services shall be provided by a bilingual service provider in Yiddish; and it is further
ORDERED, that the respondent shall implement the terms of this Order within 30 days of the date hereof.
Amended Date: 11/30/2022 SO ORDERED,
Teresa R. Nuccio, Esq.
Impartial Hearing Officer
(Digitally Signed)
___________________________________
Teresa R. Nuccio, 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 proceedings 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
REDACTED
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT’s EXHIBITS
Exhibits
Title
Date
Pages
A Due Process Complaint 09/06/2022 7
B Individualized Education Program [Pre-School] 07/14/2021 15
C Letter to Chairperson June, 2022 1
D Parent Contract 09/02/2022 4
E Occupational Therapist Certificate 03/31/2022 2
F Teacher Certificate Undated 2
G Affidavit in Lieu of Direct Testimony REDACTED 10/27/2022 5 DOE’s EXHIBITS
Exhibits
Title
Date
Pages
1
Individualized Education Service Program
03/31/2022
10
IHO’s EXHIBITS
Exhibits
Title
Date
Pages
NONE
Footnotes
[1] P-A (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.)
[2] P-A2-A3
[3] P-A3, Proposed Solution #2
[4] T-4:11-25, 5:1-5 (The transcript shall be referred to as “T” followed by lines and page numbers.)
[5] Education Law § 3602-c
[6] T:5:18-23, and see 12:3-10
[7] T-5:8-23 (As discussed infra [see Analysis], the district presented no argument or evidence with respect to the $225 hourly rate for occupational therapy.)
[8] DOE-1
[9] T-6:5-11
[10] Id.
[11] P-G
[12] T-13:2-16
[13] T-13:17-25, pp.14-15
[14] T:15-19
[15] U.S.C. § 1400 et seq. and 34 C.F.R. § 300 et seq.; New York State Education Law § 3602-c and § 4404 et seq., and 8 NYCRR § 200.5 et seq.
[16] P-B1 (IESP dated 07/14/2021) (It is noted that the IEP dated 03/31/2022 [DOE-1] does not list a classification.)
[17] P-A2 and B1
[18] DOE-1
[19] DOE-1:1-4
[20] DOE-1:3
[21] DOE-1:1
[22] Id.
[23] DOE-1:7
[24] P-C1
[25] T-16:18-25
[26] Id.; 17:1-15
[27] Id.
[28] Id.
[29] P-C1
[30] T-15:12-25; 16:1-4
[31] T-5:8-23 (As discussed infra [see Analysis], the district presented no argument or evidence with respect to the $225 hourly rate for occupational therapy.)
[32] P-A
[33] Id.
[34] T-5:6-23, 15:12:25, 16:1-4
[35] T-5:8-23 and pp.9-12
[36] P-G3:¶19
[37] P-G5-6:¶37 & 38
[38] P-G4:¶34
[39] P-G5:¶39
[40] P-G2:¶14. The educational director testified that since the student is now eligible for kindergarten, she would be receiving SETSS rather than SEIT services (T-13:8-25, 14:1-5).
[41] P-G2:¶28
[42] P-G4:¶31
[43] P-G2:¶16
[44] P-G2:¶17
[45] P-G3:¶18
[46] P-G3:¶25, P-F1
[47] P-E
[48] P-G3:¶28 & 29
[49] U.S.C. § 1400 [d][1][A]
[50] U.S.C. § 1401[9]
[51] U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]
[52] See 20 U.S.C. § 1412 [a][1][A] and Education Law §§ 4402 [2] [a], [b][2]
[53] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-207 [1982]
[54] C.F.R. § 300.13.
[55] See 34 C.F.R. § 300.137 (a)
[56] See 34 C.F.R. § 300.134.
[57] E.T. and D.T. ex rel. E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at 10 (S.D.N.Y. 2012) (citing J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 665 [S.D.N.Y. 2011] [internal quotation marks omitted]); see also 20 U.S.C. § 1412 [a] [10] [A] [i]-[ii]; 34 C.F.R. §§ 300.131 – 300.133
[58] E.T. and D.T. ex rel. E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., supra., at 11 [internal quotations and citations omitted]; Matter of Board of Educ. Of Bay Shore Union Free School Dist. V. Thomas K., 14 N.Y.3d 289, 292-293 [2010]. See also, Application of a Student with a Disability, Appeal No. 20-115 [Sept. 3, 2020]
[59] Matter of Board of Educ. Of Bay Shore Union Free School Dist. V. Thomas K., 14 N.Y.3d 293
[60] N.Y. Educ. Law § 3602-c [2] [a]
[61] N.Y. Educ. Law § 3602-c [2] [b] [1] [emphasis added]
[62] 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]
[63] Matter of Board of Educ. Of Bay Shore Union Free School Dist. V. Thomas K., 14 N.Y.3d 293, citing Board of Educ. of Monroe-Woodbury Cent. School Dist. v Wieder, 72 N.Y.2d 174, 184 [1988] [internal citations omitted]
[64] Id.
[65] Education Law § 3602-c (2) (b) (1); Matter of Board of Educ. Of Bay Shore Union Free School Dist. V. Thomas K., 14 N.Y.3d 293
[66] Education Law § 3602-c [2] [b] [1]; 20 U.S.C. §§ 1221e-3, 1415 [e] & [f]; Education Law § 4404 [1]; 34 CFR §§ 300.151- 300.152; 8 NYCRR §§ 200.5 [h]-[l]
[67] See Application of a Student with a Disability, Appeal No. 20-023 (citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 [D. Conn. 2017]); See also, Matter of Board of Educ. Of Bay Shore Union Free School Dist. V. Thomas K., 14 N.Y.3d 294
[68] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (internal citation omitted).
[69] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 [2d Cir.2002]
[70] See Doe v. East Lyme, 790 F.3d at 454
[71] Id. at p.203
[72] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 988, 100 [2017]; and See 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR § 200.4[d][2][iii]
[73] Id.
[74] See, P. v. Newington Bd. Of Edu., 546 F.3d 111, 119 [2d Cir. 2008]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005]; and Walczak, 142 F.3d 119, 130 [2d Cir. 1998] [citations omitted]
[75] It is undisputed that now that the student has aged out of preschool and is in now in Kindergarten (T-6:9-14), she is eligible for SETSS services in place of SEIT services.
[76] Application of a Student with a Disability, Appeal No. 20-115, p9., fn.12, supra
[77] Matter of Board of Educ. Of Bay Shore Union Free School Dist. V. Thomas K., 14 N.Y.3d 292; Bay Shore Union Free Sch. Dist. V. Kain, 485 F.3d 730, 736 [2d Cir. 2007]; and see Gabel ex rel. L.G. v. Bd. Of Educ., 368 F. Supp. 2d 313, 333 [S.D.N.Y. 2005] (“What the Commissioner's Decision 12,530 makes clear is that no court, including this Court, has jurisdiction over an appeal relating to this issue [reimbursement for related services]. IDEA confers no jurisdiction on this Court because it confers no right of due process review on this issue. State law -- the only law that gives [a student] the right to any due process review of a decision denying related services to a private school student -- provides that an administrative determination after impartial hearing concerning related services is reviewable only by the Commissioner. § 3602-c[2].”
[78] R.G. v. New York City Dep’t of Educ., 585 F.Supp3d 524, 530 [S.D.N.Y. 2022]
[79] Application of a Student with a Disability, Appeal No. 20-115, p9., fn.12, supra
[80] Id. and Application of a Student with a Disability, Appeal No. 21-245; and see Educ. Law § 4404[1][c]; 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]
[81] See Education Law §4404[1][c], “The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing, except that a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement” [emphasis added]. Education Law § 4401 [5] defines “tuition” as “the per pupil cost of all instructional services, supplies and equipment, the operation of instructional facilities and allocable debt service for the instructional facilities, as determined by the commissioner” [emphasis added].
[82] Id.
[83] N.Y.C.R.R. §200.5 [qq]
[84] See, Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 206-07 [1982]
[85] Application of a Student with a Disability, Appeal #21-138 [08/11/21], p.9
[86] Application of a Student with a Disability, Appeal #21-183 [10/29/21], p.19
[87] Application of a Student with a Disability, Appeal #20-140 [09/23/20], p.14
[88] Application of a Student with a Disability, Appeal #20-140 [09/23/20], p.14
[89] Application of a Student with a Disability, Appeal #20-115 [09/23/20], p.10
[90] Application of a Student with a Disability, Appeal #20-140 [09/23/20], p.14
[91] Application of a Student with a Disability, Appeal #21-245 [02/04/22], p.9
[92] Id., and Application of a Student with a Disability, Appeal #21-068 [04/21/21], p.12
[93] See, Shaya Eidelman v. Sun Prods. Corp., 2022 U.S. App. LEXIS 15480, 2022 *6, WL 1929250 [2d Cir. 2022]
[94] Education Law § 3602-c [2][a] and Decision No. 15.195 [2005] [Office of Counsel [nysed.gov])
[95] A child is entitled to remain in his or her placement at public expense during the pendency of a dispute over an IESP, The “pendency” provision of the IDEA requires a school district “to continue funding whatever educational placement was last agreed upon for the child until the relevant administrative and judicial proceedings are complete.” {See, 20 U.S.C. § 1415[j] and Education Law 4404 [4][a]. See also, Mackey ex rel. Thomas M. v. Bd. of Educ. for the Arlington Cent. Sch. Dist., 386 F.3d 158, 160 [2d Cir. 2004], and Ventura de Paulino v. New York City Dep’t of Educ., 76 IDELR 173 [2d Cir. 2020], citing Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 83 [3d Cir. 1996].
[96] E.T. and D.T. ex rel. E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., supra.; Matter of Board of Educ. Of Bay Shore Union Free School Dist. V. Thomas K., supra.; and Application of a Student with a Disability, Appeal No. 20-115.
[97] Education Law §4404 [1] [c]
[98] Notably, the district’s case was silent as to the hourly rate of $225 for occupational therapy, as well as the student’s need for physical therapy. Therefore, the district has conceded that the occupational therapy rate is appropriate and reasonable, and the student is in continuing need of physical therapy.
[99] P-D3:¶7
[100] Shaya Eidelman v. Sun Prods. Corp., supra.