New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 580616 - NYC: 232553

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: September 6, 2022

Date(s) of Hearing: October 20, 2022

November 16, 2022

December 7, 2022

January 18, 2023

January 23, 2023

February 16, 2023

Actual Record Closed Date: February 21, 2023

Date of Decision: February 27, 2023

Date of Distribution if Different than Decision Date: N/A

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

October 20, 2022

For the Student:

REDACTED REDACTED, Legal Assistant

For the Department of Education:

REDACTED REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

November 16, 2022

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

REDACTED REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

December 7, 2023

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

REDACTED REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

January 18, 2023

For the Student:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent Student

REDACTED REDACTED, REDACTED

For the Department of Education:

REDACTED REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

January 23, 2023

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

REDACTED REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

February 16, 2023

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

REDACTED REDACTED, Esq.

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 6, 2022. Ex. A.^[1] On September 14, 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 mandated by an Individualized Special Education Services Plan (“IESP”) for REDACTED for the 2022-2023 and seeks funding for SETSS and related services for REDACTED at the provider’s “prevailing rate.” Ex. A.

I conducted a prehearing conference on October 20, 2022, after the conclusion of the resolution period. An advocate for REDACTED’s parents appeared; counsel appeared on behalf of the Department. At the prehearing conference, the advocate for REDACTED’s parents clarified the relief requested in the DPC and requested “pendency,” and counsel for the Department indicated that the Department was interested in resolving this matter through settlement and was “not contesting pendency,” which counsel explained as meaning that the Department agreed that REDACTED’s pendency consisted of the services Parent set forth as REDACTED’s pendency entitlements but was not committing to implementing those pendency services. Tr. 3-4, 13-14, 16-17. An Order on Pendency was issued on October 30. The hearing was scheduled for November 16.

On November 16, counsel for REDACTED’s parents and the Department appeared. Parent’s counsel reported that the Department had forwarded a “resolution offer” for REDACTED’s parents’ consideration and represented that REDACTED’s parents would likely not accept the offer and that they wished to proceed to hearing. Tr. 25-27. At Parent’s counsel’s request the hearing was rescheduled; procedural and evidentiary matters relating to the hearing were also discussed. Tr. 27-31.

The hearing was to proceed on December 7. REDACTED’s parents were unavailable on that date for medical reasons and requested a continuance. Tr. 35-36. Counsel for the Department reported that the Department had forwarded an “updated resolution offer” to Parent’s counsel; Parent’s counsel responded that REDACTED’s parents “wanted to go to hearing.” Tr. 37. The hearing was rescheduled for January 18, 2023.

On January 18, counsel for the Department and counsel for REDACTED’s parents presented opening statements. The Department did not present the testimony of witnesses or offer documents in evidence; the Department rested its case. Tr. 47-48. Parent’s Exhibits A, and B through I were admitted in evidence. REDACTED’s parent testified, as did a supervisor employed by REDACTED. Counsel for both parties presented closing statements. Briefing of First Amendment issues was discussed. Tr. 96-102.

On January 23, counsel for both parties appeared to address counsels’ questions concerning the scope of their briefs. Tr. 107-108, 112-114. Briefing, both relating to scheduling and the topics to be address in the briefs, were discussed. The Department also requested that I issue an injunction barring payments under pendency for religious instruction. I informed counsel that I would not issue such an injunction. Tr. 108, 111; see also 127-128, 137-138.

The Department timely submitted its Closing Statement on January 30, 2023. IHO Ex. I. A brief was not submitted on behalf of REDACTED’s parents. See Tr. 134-136.

On February 10, I received an email from Parent’s counsel reporting that the case was “resolved and authorized” and requesting that the case be withdrawn without prejudice. IHO Ex. II. Counsel for the Department was not copied on this email. I forwarded this email to Department’s counsel. In a subsequent email, I informed the parties that I was planning to issue an Order of Termination with prejudice because the case had been fully litigated and that the parties could, if they wished, promptly comment on my planned action. Counsel for the Department responded that the Department had “voided” the resolution agreement and requested that I issue a Findings of Fact and Decision in this case. Parent’s counsel did not respond. IHO Ex. II.

I scheduled a telephone conference for February 23 in order for counsel to clarify both the status of this case and their requests. Counsel for both parties appeared on February 23. As to the background of the request to withdraw the case: on or about February 3, Parent’s counsel’s office had forwarded the previously-rejected resolution agreement, executed by REDACTED’s parent, to the Department’s CSE. The executed resolution was not forwarded to the Department’s counsel of record in this proceeding, nor was the Department’s counsel of record copied on emails relating the resolution agreement. Tr. 124-125, 129, 131. CSE personnel counter-signed the resolution agreement forwarded to them by Parent’s counsel. Tr. 129. On February 10, when the Department’s counsel of record learned that Parent’s counsel had made “an attempt around the litigator to resurrect a dead offer,” the Department voided the resolution agreement. Tr. 128-130.

The Department argued that I should issue a Findings of Fact and Decision, rather than an Order of Termination, because the case had been fully litigated with “great expenditure of DOE resources” on preparing for and litigating the case, preparing the closing brief, and investigating Parent’s counsel’s “attempt to resurrect an offer that they rejected.” Tr. 127, 136-137. Parent’s counsel argued that I should issue an Order of Termination with Prejudice on the grounds that (1) the case would “never be coming up again” and (2) while expenditure of judicial resources in this case is “frustrating,” it does not “correspond[] to the need for a substantive finding of fact and decision.” Tr. 131-132, 139.

The parties requested extensions of the compliance date, and written Orders of Extension were issued on November 16 and December 7, 2022, and January 8 and January 23, 2023. The reasons for granting the extensions are set forth in the Orders.

The record was closed on February 21, 2023, upon the Hearing Officer’s receipt and review of the transcript of the final day of the hearing.

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 and related services for REDACTED, who is parentally-placed in a non-public school. 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:

1. Should this matter be concluded with an Order of Termination with prejudice or a Findings of Fact and Decision?

2. What services is the Department responsible for providing to REDACTED as per the Department’s IESP?

3. Did the Department provide such services?

4. Should the Department be required to fund the services that REDACTED’s parents secured for REDACTED?

a. Are the SETSS provided by REDACTED appropriate for REDACTED?

b. Does the First Amendment bar the Department from funding a portion of REDACTED’s SETSS?

5. Does the balance of the equities favor REDACTED’s parents?

a. Do REDACTED’s parents have a legal obligation to pay REDACTED for services it provides to REDACTED?

b. Are REDACTED’s parents unable to pay REDACTED for services it provides to REDACTED?

FINDINGS OF FACT

1. REDACTED is a REDACTED year-old boy whose disability, for the purposes of the IDEA, is classified as speech and language impairment. Ex. D at 1. He attends REDACTED (“REDACTED”), a general education religious school. Tr. 59; Ex. G.

2. REDACTED experiences significant delays in receptive and expressive language and challenges with focusing, comprehension, processing directions, fine motor skills, anxiety, and academics. Exs. D at 1-4, G, H. REDACTED needs support in the mainstream educational environment in order to learn in such a setting. Exs. D, E, H.

3. The Department convened an IESP meeting for REDACTED on May 4, 2018. Ex. D.^[2] REDACTED’s parent participated in this meeting by telephone. Ex. D at 11.

4. The CSE recommended that REDACTED receive ten periods per week of SETSS (as a direct, individual service in REDACTED in the general education classroom), speech-language therapy (two 30-minute sessions per week, individually in REDACTED) and occupational therapy (two 30-minute sessions per week, individually in English). Ex. D at 8.

5. The Department did not provide REDACTED with SETSS, speech or occupational therapy providers for the 2022-2023 school year. Ex. E at ⁋ 5.

6. On August 15, 2023, REDACTED’s parent signed a document labelled “Agreement” with an agency, REDACTED Support Services (“REDACTED”). Ex. I; Tr. 64. In the Agreement, REDACTED’s parent: (a) “acknowledge[d] that REDACTED, will provide Intensive 1:1 Special Services” to REDACTED for the 2022-2023 school year; (b) agrees to seek payment for REDACTED from the Department; (c) and agrees to be responsible for paying for any REDACTED for which the Department does not pay. Ex. I.

7. The Agreement does not define “Intensive 1:1 Special Services” nor specifically reference SETSS or speech-language or occupational therapies. Ex. I.

8. The agreement does not specify costs of services. Ex. I; Tr. 64.

9. When REDACTED’s parent signed the agreement, she did not know what REDACTED would charge her for SETSS provided to REDACTED but she did know that she was responsible for paying REDACTED. Tr. 68.

10. REDACTED’s parent, through counsel, submitted a ten-day notice letter to the Department on August 29, 2022. Ex. C. In the letter, REDACTED’s parent stated that she was unable to secure SETSS and related services providers for REDACTED “at the DOE’s standard rate” and had “no choice but to implement the IESP on [her] own” and seek payment from the Department. Ex. C.

11. REDACTED provides for a supervisor for the SETSS providers. She is the “owner and educational director at REDACTED,” a New York State certified special education teacher, and works daily out of therapy rooms at REDACTED. Tr. 75, 78-79; Exs. F at ⁋⁋ 2-4.

12. During the 2022-2023 school year, REDACTED has been providing ten hours per week of SETSS to REDACTED at REDACTED. Tr. 59-60, 67, 75, 87. These hours are usually provided for two hours per day, five days per week, typically scheduled for one hour in the morning and one hour in the afternoon. SETSS is provided on both a pull-out and push-in basis. Tr. 87-88, 90-91.

13. There appears to be no set schedule for SETSS delivery to REDACTED; although the total SETSS per week is ten hours, with one hour provided during the morning and one hour provided during the afternoon. Tr. 65.

14. REDACTED’s REDACTED curriculum includes religious classes, such as Talmud, which is read in REDACTED; his curriculum also includes REDACTED, which was identified by the REDACTED supervisor as a religious subject. Tr. 60, 79.

15. Religious studies are conducted in the morning. Tr. 80.

16. REDACTED is also able to speak and read REDACTED; some classes at REDACTED are in REDACTED. Tr. 61-62.

17. REDACTED also has classes at REDACTED in secular subjects, which are conducted in English. These subjects include reading, math, writing and science. Tr. 61, 66, 79; Ex. G.

18. Secular subjects are taught in the afternoon. Tr. 80, 85.

19. REDACTED providers utilize REDACTED to support students in their secular subjects. While the secular subjects are taught in English, students need the support of a bilingual REDACTED provider “to be able to help them because they are REDACTED-speaking.” Tr. 84; see also Tr. 85; Ex. D [IESP].

20. REDACTED’ providers assist students with both religious and secular studies. Tr. 85-86.

21. During REDACTED’s morning SETSS session, he is working with the SETSS provider during religious instruction for approximately one-half hour out of the classroom (pull out) and one-half hour in the classroom (push in). Tr. 91.

22. The SETSS provider employed by REDACTED prepared a “2022-2023 Progress Report” for REDACTED. This report is dated September 8, 2022. Ex. G.

23. The report, which is dated as of the first week of school, states that REDACTED “has made nice progress this year.” Ex. G at 1. The report discusses progress in addition and subtraction using his fingers, addition and subtraction word problems involving numbers up to 20 and second-grade vocabulary, if the problem is presented to him orally. REDACTED understood minutes and hours and could tell time on a digital clock, and was working on measurement and identifying coins. REDACTED’s reading skills in English were on a preschool level; he “knows most of his ABC’s and the sounds they make, but does [not] attempt to combine them to sound out words yet.” A reading goal for this school year is to “begin to sound out beginning reader words.” Ex. G. It is unclear to which time periods the progress described in this report relate. It is clear, however, that REDACTED is below grade level in all academic areas.

24. The record includes a special education teaching certificate for the SETSS provider and licenses for a speech therapist and an occupational therapist. Ex. H.

25. In their direct testimony affidavits, REDACTED’s parent and the SETSS supervisor assert that REDACTED is providing both speech-language therapy and occupational therapy to REDACTED for the 2022-2023 school year. Exs. E at ⁋ 7, F at ⁋ 13.

26. A REDACTED speech therapist reviews Talmud, religious studies and secular studies with students, including REDACTED, to assist with comprehension. Tr. 81,87. This individual is Chana Halberstam. Tr. 82.

27. REDACTED’s parents have not paid REDACTED for any of the services that it has provided to REDACTED to date. Tr. 67.

28. REDACTED’s parent, in her testimony at the hearing, was unable to testify as to the rate that REDACTED charges for SETSS. Tr. 67.

29. REDACTED’s parent also asserts that “[p]aying for these services up front would pose extreme financial hardship or me. I would not be able to pay for these services without outside financial support from friends and family.” Ex. E at ⁋ 9. These statements were not substantiated with documentation or other details about the family’s financial circumstances. ^[3]

30. REDACTED charges $175.00 per hour for SETSS and $195.00 per hour for both speech and occupational therapies. Ex. F at ⁋ 8.

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. Joseph 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).

Given the particular procedural posture of, and the relief requested in, this case, there are a number of issues to be addressed. Should this matter be concluded with an Order of Termination with prejudice or a Findings of Fact and Decision?

This is the obvious first question. An impartial hearing may be withdrawn by the party requesting the hearing. 8 N.Y.C.R.R. § 200.6(j)(6). When a party seeks to withdraw a hearing request after the first date of the impartial hearing, as in the instant case, that party “must immediately notify the IHO and the other party, and the IHO ‘shall issue an order of termination.’” Application of a Student with a Disability, Appeal No. 18-143 at pp. 9-10 (emphasis added); see also 8 N.Y.C.R.R. § 200.6(j)(6)(ii).

At the hearing, Parents were set on resolving this matter via litigation rather than settlement. Then, after the hearing had concluded, and the Department had filed its post-hearing brief, Parents’ counsel circumvented the Department’s counsel of record to seek the Department’s execution of a resolution agreement that had been previously rejected by Parents. Then, when Parent’s counsel subsequently requested that the hearing be withdrawn without prejudice, they did not copy counsel for the Department, in violation of the Commissioner’s Regulations. See 8 N.Y.C.R.R. § 200.6(j)(6)(ii).

It is significant that the previously rejected resolution agreement, now signed by Parents, was not forwarded to the Department’s counsel of record in this proceeding and that the Department’s counsel of record was not copied on emails relating the resolution agreement and to the request to withdraw this case. Therefore, under these circumstances, I deny the request to withdraw this case.

Moreover, the Department argued that I should issue a Findings of Fact and Decision, rather than an Order of Termination, because the case had been fully litigated. This case was fully litigated precisely because Parents had rejected the resolution agreement offered by the Department and clearly stated, through counsel and on the record, their preference to litigate this case. Parents’ counsel did not interpose a cogent argument in support of the issuance of an Order of Termination. Thus, I am entering this Findings of Fact and Decision rather than an Order of Termination. What services is the Department responsible for providing to REDACTED as per the Department’s IESP, and has the Department provided such services?

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 duallyenrolled students).

It is undisputed in this proceeding that the Department did not provide REDACTED with the IESP’s mandated complement of SETSS or related services during the 2022-2023 school year. Since the Department was required by Education Law § 3602-c to provide such services, and failed to do so, I must consider whether the Department should be required, at this time, to provide funding for SETSS and any related services that REDACTED’s parents secured through REDACTED. Should the Department be required to fund the services that REDACTED’s parents secured for REDACTED?

As discussed in numerous decisions issued by State Review Officers, a Burlington/Carter analysis is both an appropriate and a practical manner in which to approach and consider this case. See Florence County School District v. Carter, 510 U.S. 7 (1993); School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985); see, e.g., Application of a Student with a Disability, Appeal No. 22-088 at pp. 10-18; Application of a Student with a Disability, Appeal No. 22-046 at pp. 8-11; Application of a Student with a Disability, Appeal No. 21-245 at pp. 10-13. Under such an analysis, a board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). Since the Department failed to provide the IESP-mandated services for REDACTED, and REDACTED’s parents were left to their own devices to find providers for such services, the Department should be required to pay for the services that it was otherwise required, yet failed, to provide to REDACTED—so long as the services secured by REDACTED’s parents were appropriate for REDACTED.

SETSS

As to the appropriateness of the SETSS, there is no dispute that REDACTED needs the instruction and supports that a SETSS teacher provides. However, REDACTED’s parents have the burden of proof regarding the appropriateness of the SETTS that they secured for REDACTED. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85. The standard of proof is a preponderance of the evidence.

To meet the above burden, REDACTED’s parents must show that the educational services they secured for REDACTED address his identified special education needs. See C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of a Child with a Disability, Appeal No. 22-046 at pp. 9-10. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs . . . . To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.”

Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29 (2d Cir. 2020) (Summary Order). Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3.

This record contains limited information pertaining REDACTED’s needs other than what is described in an outdated IESP, a progress report, and the supervisor’s testimony. These documents and this testimony was not controverted by the Department. These documents and this testimony do demonstrate that REDACTED’s challenges in the general education setting are significant, that he needs support in such a setting in order to learn, that he needs the support of a bilingual REDACTED SETSS teacher (as provided by REDACTED), and that with the support of and instruction from a bilingual REDACTED SETTS teacher he has made, over time, slow yet steady progress. I find that this evidence meets (just barely) the Second Circuit’s “totality of the circumstances”/instruction “specially designed to meet the [child’s] unique needs” standards by the preponderance of the evidence. See Application of a Student with a Disability, Appeal No. 22-144 at p. 13; Application of a Student with a Disability, Appeal No. 21-245 at pp. 15-17.

Related Services

The evidence compels a different conclusion with respect to speech-language therapy and occupational therapy. The record evidence as to these services does not meet the Second Circuit’s “totality of the circumstances”/instruction “specially designed to meet the [child’s] unique needs” standards by the preponderance of the evidence. As in Appeal No. 22-046 (at pp. 13-14), the evidence does not explain what REDACTED therapists did to specifically address REDACTED’s unique needs and how the services provided by these therapists specifically benefitted REDACTED—other than the supervisor asserting generally that the speech therapist reviewed Talmud, religious studies and secular studies with students to assist with comprehension. This testimony did not describe how the work of the speech therapist was linked to REDACTED’s unique needs, and thus has little weight in this case.^[4] As a result, REDACTED’s parents do not meet their burden as to the appropriateness of the related services they secured for REDACTED. SETSS and Religious Instruction

The Department argues that it is barred from paying for five of REDACTED’s ten weekly hours of SETSS because these five hours were provided during the morning hours of religious instruction and were “used to advance [REDACTED’s] religious instruction.” IHO Ex. I at p. 6.

The Supreme Court in Zobrest v. Catalina Foothills S.D., 509 U.S. 1, 9-10 (1993), held that the Establishment Clause does not bar a school district from providing one-to-one support personnel to accompany a student enrolled in a religious school. In Agostini v. Felton,521 U.S. 203 (1997), the Supreme Court held that sending teachers funded by Title I into private religious schools to teach secular subjects did not violate the Establishment Clause because such a practice: does not run afoul of any of three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion: It does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement. We therefore hold that a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishment Clause when such instruction is given on the premises of sectarian schools by government employees pursuant to a program containing safeguards such as those present here.

Id. at 234–35 (emphasis added). The objection posed by the Department to the five hours of SETSS provided during the morning hours of religious instruction involves complex analysis of the facts and law. Neither party did justice to these issues at hearing; the Department did not do justice to these issues in its brief. However, it is clear that the Establishment Clause does not bar the Department from funding support to REDACTED that he needs during instruction, even religious instruction, in a general education setting. See Zobrest. On the other hand, the Establishment Clause bars the Department from paying for religious instruction. See Agostini. So I must determine whether or not the SETSS teacher is providing religious instruction to REDACTED during the morning SETSS session or is supporting his ability to learn (from the classroom teacher) in the general education setting.

The record as not as detailed as it should be. The record does establish that REDACTED is working with the SETSS provider during morning religious instruction; for approximately onehalf hour, he is working with the SETSS provider out of the classroom (pull out), and approximately one-half hour, he is working with the SETSS provider in the classroom (push in). See ⁋ 21 above. There is no dispute that REDACTED needs support in order to learn in the general education environment; Zobrest teaches that the Establishment Clause does not bar public funding of 1:1 supportive educational services to a student during religious instruction in school. Thus, I conclude that the 2.5 hours per week the SETSS provider spends supporting REDACTED in his classroom during religious instruction may be funded by the Department. However, with respect to the pull-out portion: the burden of proof here is on REDACTED’s parents; in the absence of evidence to the contrary, and given the testimony of the supervisor that the morning is for religious instruction, I am compelled to conclude that when REDACTED is pulled out of his classroom in the morning, he is instructed by the SETSS teacher (in the absence of the classroom teacher) and that instruction has religious content. Therefore, I find that the Department should not pay for the 2.5 hours per week of pull-out SETSS. Does the balance of the equities favor REDACTED’s parents?

Under a Burlington/Carter analysis, services which are determined as reimbursable or fundable are fully reimbursed or funded by the school district “unless, as a matter of equitable considerations, the costs sought to be reimbursed are excessive or otherwise should be reduced, or, in the case of direct funding, the parent has not demonstrated a legal obligation to pay the cost and an inability to do so.” Application of a Student with a Disability, No. 21-245 at p. 17 (emphasis added). In short, for direct funding, as requested in this case, there must be proof of both the parents’ legal obligation to pay for services provided to their child and their inability to pay for those services. Id. at pp. 17-18. See also, e.g., D.A. v. New York City Dept. of Educ., 769 F Supp. 2d 403, 430 (S.D.N.Y. 2011); Application of a Student with a Disability, No. 22-88 at pp. 11-12.

In the instant matter, the agreement that REDACTED’s parent entered into with REDACTED obligated her to pay for services that REDACTED provided to REDACTED. The agreement is poorly worded (such as its reference to “Intensive 1:1 Special Services”) and is missing important terms (such as the cost of the services and the number of hours of services). But one thing the agreement is clear on: that REDACTED’s parents are responsible to pay REDACTED for all services it provides to REDACTED for which the Department does not pay.

The proof of “inability” to pay is scant (tax returns would be preferable), but I find REDACTED’s parent’s testimony on this issue credible. It is concerning that REDACTED’s parents have not paid anything to date for services from REDACTED and that REDACTED’s parent was unable to testify as to REDACTED hourly rates. However, REDACTED’s parents meet the requirements of D.A, 769 F Supp. 2d 403, for direct funding of 7.5 hours per week of SETSS provided by REDACTED.

Given the testimony and the documentary evidence in the record, 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. Furthermore, since the CSE has not developed an IESP for REDACTED since May 2018, the CSE should, if it has not already done so during the past twelve months, convene a meeting to review REDACTED’s IESP.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered that:

1. The Department of Education shall fund SETSS (7.5 periods per week as a direct, individual service in REDACTED), for REDACTED, for the 2022-2023 10-month, 36-week school year.

2. The Department of Education shall pay reasonable market rates, as determined by the Department’s Implementation Unit, for the aforementioned SETSS; and, in any event, that rate shall be capped by the lowest amount paid by the Department to REDACTED for SETSS during the 2022-2023 school year.

3. The request for funding of related services secured by REDACTED’s parents is denied.

4. The Department’s CSE shall, if it has not already done so during the past twelve months, convene a meeting to review REDACTED’s IESP.

SO ORDERED.

DATED: February 27, 2023

Jean Marie Brescia, 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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT’S EXHIBITS

A. Numbe r of Letter Date Name of Document DPC 9/6/2022 7 pages

C. TDN 8/29/2022 2 pages

D. IESP 5/4/2018 11 pages

E. Affidavit of Parent 11/29/2022 2 pages

F. Affidavit of REDACTED 12/1/2022 4 pages

G. Progress Report 9/8/2022 4 pages

I. H Provider Credentials 3 Contract 8/15/2022 1 page

IHO EXHIBITS

I. 1/30/23 Department’s Closing Brief 8 pages IHO

II. 2/1023-2/13/23 Emails from and to Counsel 3 pages IHO

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.”

[2] The parties do not dispute that this was the last IESP for REDACTED. Since it is almost five years old, I will be ordering the Department to convene a meeting to review this IESP and, if appropriate, prepare a new IESP for REDACTED.

[3] Parent was represented by counsel; and while a hearing officer may “ask questions of counsel or witnesses for the purpose of clarification or completeness of the record,” my duty to maintain my impartiality prohibits me from turning my duty to develop the record into advocacy on behalf of one of the parties. See, e.g., 8 N.Y.C.R.R. §§ 200.1(x), 200.5(j)(3)(vii); see also New York State Manual for Administrative Law Judges and Hearing Officers (2002) at pp. 28-29, 35. I determined that, in the circumstances of this case, including REDACTED’s parent’s representation by counsel, my requesting evidence such as tax returns or other financial documentation (or specifics of the appropriateness of the related services purportedly provided by REDACTED), would cause me to be acting as an advocate for one party rather than as an impartial hearing officer.

[4] Please see footnote 3, above.