New York City Department of Education, Impartial Hearing Decision

CASE NUMBER NYC: 233075

FINDINGS OF FACT AND DECISION

Case Number: 233075

Student’s Name1: [REDACTED](“Student”) Date of Birth: [REDACTED]

School District: NYC

Hearing Requested by: [REDACTED] (“Parent(s)”) Request Date/Date Complaint Filed: 9/6/2022 Date(s) of Hearing: 11/14/2022

Actual Record Closed Date: 11/18/2022 Date of Decision: 11/18/2022

Hearing Officer: Teril Holston, Esq.

1 Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 11/14/2022

For the Student:

[REDACTED], Esq.

For the Department of Education: [REDACTED]

INTRODUCTION

This matter comes before the undersigned Hearing Officer at the request of Petitioner, the parent of the student, a [REDACTED] school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”); New York State Education Law; and the New York State regulations.

On September 6, 2022, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) alleging that the District failed to provide the student with a Free and Appropriate Public Education (“FAPE”) for the 2022-2023 school year, in that the District failed to implement the recommendations of the student’s August 2, 2022 IESP (P-A)2. The Petitioner is seeking direct payment to the providers at their prevailing rate (Id.). The Petitioner is also seeking pendency as of the date of filing.

In light of the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its burden that it offered the student FAPE for the 2022-2023 school year, b) the offer the student with specially designed instruction sufficient to meet student’s needs, and c) the equities support the Parents.

PROCEDURAL HISTORY

On September 27, 2022, the undersigned was appointed to conduct an impartial hearing. A prehearing conference was held on October 24, 2022.

On November 14, 2022, the virtual pendency and impartial hearing on the merits of the DPC commenced and concluded. It was a closed hearing and the record closed on November 14, 2022.

At the hearing, the District’s representative presented no documentary evidence and did not call any witnesses. The District waived an opening statement and presented a brief closing argument only arguing that the parent attended an IEP meeting in September 2021.

The Parent, through their representative, submitted to documents (Ex. P-A though P-F),3 and the testimony of the parent and the student’s BCBA-D, in support of the Parent’s case. All of the documents were admitted into evidence without objection from the District. The Parent rested and the DOE advised that it had no further statement to make or testimony or documents to offer.

2 Exhibits shall be referred to as follows: “P” for Parent Exhibit; “DOE” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.

3 A more detailed list of exhibits is attached.

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.

FINDINGS OF FACT

After a full review of the record generated at hearing, I make the following findings of fact and determinations:

The student is a [REDACTED], classified by the CSE as a student with a Speech and Language Impairment who has been privately placed by his parents at Private School (P-B). The most recent IESP, dated August 2, 2022, the student was recommended to receive group Special Education Teacher Support Services (“SETSS”) 3x1 period, in Yiddish; Speech Language therapy 2x30:1 in Yiddish; occupational therapy 2x30:1, and group counseling services 1x30 in Yiddish (P-B). At no time did the District make any providers available to the parent. The parent then made efforts to locate independent providers at the DOE published rate to no avail.

On September 4, 2022, through counsel, the parent provided Ten-Day Notice to the District of her intention to seek reimbursement of privately retained services (P-C). The parent did not receive a response to the Ten-Day Notice.

The parent sought out the Agency to implement the student’s IESP and signed a contract obligating her to pay. The agency has been providing the student with 3 hours of SETSS, 2x30 minutes of Speech0Language Therapy, and 2x30 minutes of Occupational Therapy each week for the 2022-2023 school year (P-D). The Agency charges $175 per hour for SETSS, and contracts with related service providers for $195 (Id.).

PENDENCY

The Parents requested an interim order on pendency seeking enforcement of the Student’s “stay-put” rights during the pendency of the case (P-A).

Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement. Application for Review of a Determination, Appeal No. 10-112, citing Mackey v. Bed. of Educ., 386 F. 3d 158 (2d Cir. 2004). The student’s then-current educational placement “refers to the child’s last agreed-upon educational program before the parent requested a due process hearing to challenge the child’s IEP” (Ventura de Paulino v. New York City Dept. of Educ., 959 F.3d 519, 532 (2d Cir. 2020)).

Here, the Parents presented an IESP dated August 2, 2022 (P-B), where the student was recommended for Special Education Teacher Support Services (SETSS), three periods per week, direct group services in Yiddish; Individual Speech—Language Therapy, 2 x 30 in Yiddish; Occupational Therapy 2 x 30 1:1; and Counseling 1 x 30 group.

The parent alleges this was the last agreed upon program. The District Representative did not contest that the IESP dated August 2, 2022 was the then-current placement but opposed the Parents’ request for a pendency order without a legal basis. While the District representative indicated there was no dispute as to the student’s last agreed upon program, the District has not provided the parent with a signed agreement on pendency. The District failed to present any documentary evidence or call any witnesses to defend its position. Therefore, I find that the student is entitled to pendency as of the date on the due process complaint.

CONCLUSIONS OF LAW

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 (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

However, under NY State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the district of location 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 (Educ. Law § 3602-c[2]). This is commonly known in New York as the "dual enrollment" statute. "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" (Educ. Law § 3602-c[2][a]). In such circumstances, the CSE of the district where the nonpublic school is located must review the request for services 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]" (Educ. Law § 3602c[2][b][1]). 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 (id.).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her 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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369- 70 [1985]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir.

2012]; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). Generally, a remedy for a deficiency in equitable services under State law should be similar to a remedy for deficient services under the IDEA.

ANALYSIS

Here, the District erroneously argued that the burden of proof lied with the parents because “this is not a FAPE case” and “this is an equities case.” The District’s representative could not offer any legal authority to support this assertion indicating that “it is understood.” The burden of proof is on the school district during 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 (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). Therefore, I find that the District has the burden of proof to demonstrate it offered the student a FAPE.

Accordingly, in this case, the DOE failed to meet its burden. The District presented no evidence or witnesses to document that it offered the student a FAPE in providing the recommended services. While the parent submitted August 2, 2022 IESP into the record, a review of same offers no explanation as to how the services would be provided to the student. Per the parent’s affidavit testimony, the District did not provide a special education teacher, a speech language therapist, or occupational therapist (P-D). In short, the District declined to “offer a cogent and responsive explanation for their decisions” in implementing that IESP, and it is “through the IE[S]P that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”. Endrew F., 137 S.Ct. at 1002. Therefore, I find that the DOE failed to offer the Student FAPE for the 2022-2023 school year.

Here, the parent testified, via affidavit, that she sought out special education services from a private provider after the District abdicated its obligation to provide the services (P-D). The parent provided notice of her concerns at the start of the 2022-2023 school year (P-C). The Educational Director testified, via affidavit, that the providers providing SETSS, Speech-Language Therapy, and Occupational Therapy are licensed by the New York State (P-E). While the District Representative argued that the credentials submitted by the parents were expired, the licenses were all valid at the filing of the instant DPC. Further, the Educational Director and Owner of the agency credibly testified that the providers have submitted updated credentials to the agency, but they were inadvertently not submitted to the parent’s counsel. According to the hearing record, the SETSS provider holds an active NYS Certification teaching student with disabilities (birth through Grade 2) and an application for a Certificate in teaching students with disabilities (grades 1-6), at the time the certification was printed on January 26, 2021 (P-F-1). According to the Educational Director, the SETSS provider has since received that certification. Therefore, the providers found by the parent hold New York State Certificates to teach and provider the IESP recommended services to students with disabilities (P-E; P- F). Further, the parent testified that she signed a contract and is financially responsible for the cost of those services if the parent is unsuccessful in this due process hearing (P-D). The Educational Director testified, via affidavit, that the provider charges $175 per hour for SETSS services and $195 for Speech-Language Therapy and Occupational Therapy, which I find to reasonable (P-E). Of note, the District failed to offer any persuasive arguments concerning the appropriateness of provider. Further, the District had the opportunity to cross-examine parent’s witnesses or object to any evidence entered into the record. Under these circumstances, I find that the parent’s witnesses are credible.

Other than the relief set out in my Order below, I find that no basis and/or evidence in the record supports any additional relief.

ORDER

Based upon the above Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED, effective September 6, 2022, the date of filing, and during the pendency of these due process proceedings, the District shall continue to provide the student with:

• • Special Education Teacher Support Services (SETSS), three periods per week, direct group services, in Yiddish
• • Speech—Language Therapy, 2 x 30 1:1 in Yiddish
• • Occupational Therapy 2 x 30 1:1
• • Counseling 1 x 30 in Group IT IS HEREBY ORDERED, the DOE failed to provide Student a FAPE for the 2022-2023 school year.

IT IS HEREBY ORDERED, the New York City Department of Education is directed to fund the following special education services for the Student, by issuing payment directly to the providers within thirty (30) days of the submission of copies of the invoices for such services rendered:

• • Special Education Teacher Support Services (“SETSS”) in a group, 3 periods, in Yiddish; at a rate not to exceed $175 per hour;
• • Speech Language therapy 2x30:1 in Yiddish; at reasonable market rates consistent with rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office for comparable services within the six (6) month period prior to the date of this Order;
• • Occupational therapy 2x30:1, at reasonable market rates consistent with rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office for comparable services within the six (6) month period prior to the date of this Order.

DATED: SO, ORDERED

11/18/2022 /s/ T eril Holston

Teril Holston, Esq., IHO

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

APPENDIX A – REDACTION IDENTIFICATION PAGE

Student’s Name:[REDACTED]

Date of Birth: [REDACTED] School District: NYC

Parent’s Name: [REDACTED] Agency: [REDACTED]

Educational Director: [REDACTED]

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Exhibit

Document

Date

Pages

A

DPC

9/6/2022

6

B

IESP

8/2/2022

13

C

TDN

9/4/2022

D

Affidavit of Parent

11/13/2022

E

Affidavit of [REDACTED]

11/11/2022

F

Provider Credentials

3

DOE’S EXHIBITS IHO’S EXHIBITS