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FINDINGS OF FACT AND DECISION
Case Number: 233132
Student’s Name: REDACTED
Date of Birth: REDACTED
District: REDACTED
Hearing Requested By: Parent
Date of Hearing: November 23, 2022
December 23, 2022
January 23, 2023
February 23, 2023
March 23, 2023
April 4, 2023
May 10, 2023
Actual Record Closed Date: June 22, 2023
Hearing Officer: Judith Schneider, Esq.
An Impartial Hearing for the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of REDACTED (“the student”) was conducted by (remotely via videoconference.).
Procedural History
The proceeding was initiated at the request of the parent by correspondence dated September 6, 2022. (Ex. A) I was appointed Impartial Hearing Officer on September 27, 2022. A prehearing conference was conducted on October 19, 2022. An Interim Order on Pendency was issued by me on November 23, 2022 which provided: SETSS 4 periods per week Direct Group; Counseling 2x30 min per week (1:1)
Parties moved to extend the compliance date on various occasions for settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript and closing statements and issuance of the decision. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the requests for extensions of the compliance dates were granted.
The current compliance date is July 18, 2023. The record closed on June 22, 2023.
Positions of the Parties
The parent asserts that the district failed to conduct an evaluation for the 2022-2023 school year, that the student continues to require the services provided pursuant to the September 9, 2020 IESP and that the district failed to provide SETSS for the 2022-2023 SY. The parent unilaterally contracted with REDACTED(“Agency”) for the provision of those services and seeks district funding for those services with SETSS to be provided a market rate. (T51-52) The parent did not submit a closing statement and did not articulate the legal basis for the claim of entitlement.
The district has not contested the student’s need for the services requested and is not asserting that the district provided a FAPE. However, the district contends that the parent failed to request the services by June 1 and therefore the request should be denied. Further, the district claims that pursuant to a Burlington/Carter analysis the parent has the burden of demonstrating that the program provided was appropriate and that burden has not been met, that the fee charged by the agency is not reasonable and the parent’s obligation to pay and entitlement to direct funding has not been established. (Ex. I; T104-105)
Cases Presented
The district presented no evidence, testimonial or documentary.
The parent submitted documents for admission into evidence (a list of documents in the record is appended) and presented the testimony of: the student’s mother (“the parent”); the Agency’s Educational Supervisor for this student (“supervisor”); and an Agency Financial Administrator (“administrator”).
Findings of Fact and Conclusions of Law
1. District Claim Based Upon Parent Failure to Request Services by June 1
The district asserts that pursuant to Education Law section 3602-c, the parent was required to request the services by June 1, 2022. The district failed to assert that claim during the impartial hearing. It was raised for the first time in the district’s closing brief. (Ex. I) I conclude in the circumstances of this case that the district is impermissibly seeking an expansion of the issues without the consent of the parent and decline to consider it. Further, I note with regard to this issue that district conduct, policies and/or practices may constitute a waiver of the request. Appeal No. 23-036
2. District Payment for Unilaterally Selected Services
Under New York State Education Law Sec. 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. 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. Sec. 1412(a)(1)(A); Educ. Law Sec. 4402(2)(a), (b)(2). The school district must develop an appropriate program for the student in the environment in which the student will receive his/her education (i.e. the nonpublic school). Section 3602(2) explicitly states that a school district of location’s CSE “shall develop an [IESP] based upon the student’s individual needs in the same manner and in the same manner and with the same contents as an [IEP]. Educ. Law Sec. 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.
The legal standard applicable to a request for reimbursement for educational services is well established. Appeal No. 21-028; Appeal No. 21-068. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2); and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and Prong 3 and the parent bears the burden of proof with regard to Prong 2 when payment for a unilateral placement is sought. Educ. Law 4404[1][c] Prospective payment may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education, and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at 806, n.7 (N.D. N.Y. 1998)
The district has acknowledged that it has not met the requirements of Prong 1.
With regard to Prong 2 and the district’s claim that the parent’s evidence was insufficient to establish benefit, I agree that the evidence was extremely skimpy and solely testimonial. However, I note that: Credible testimony may be sufficient support for a conclusion in an impartial hearing and I find credible the testimony of the supervisor; The services provided were precisely those recommended by the CSE, namely instruction by special education teachers to support classroom instruction, and the supervisor, a certified special education teacher, testified as to her involvement in implementing the program provided including communications with providers and teachers, observations of the student in school, review of the student’s progress and oversight regarding provision of the services. (T95-114) Further, with regard to progress I note that progress is only one factor to be considered in determining whether a parentally provided program and in this matter, I find credible the testimony of the supervisor as to that issue. (T109-114) With regard to claims that parental obligation to pay in the event of a failure to prevail in this proceeding has not been established, I note that a contract has been presented and I decline to conclude that it is legally unenforceable notwithstanding its failure to include specification of the rate to be charged. (Ex. D) The parent’s testimony as to her understanding as to her obligations has not been rebutted. I conclude that the parent’s burden has been met.
With regard to Prong 3, I find as follows: The district has the burden with regard to equitable considerations. The supervisor testified as to various expenses that the Agency claims support the reasonableness of the fee charged ($195 per hour), that the district has been paying that rate in its resolution of cases and has paid that rate to the Agency and as to his understanding that the rate charged was the market rate for those services. (T128-170) That testimony has not been rebutted by the district. Further, I note that the district has not proposed a rate that it considers reasonable in the circumstances here. With regard to cooperation with the district, I note that the parent testified that the contract was signed on July 1, 2022, no documentary evidence of parent attempts to locate a provider at the district approved rate has been presented and the parent’s testimony as to when the efforts occurred was inconsistent and I conclude unreliable. (T56-63) However, I find no basis for concluding that the parent had an obligation to communicate to the district about her difficulties and note that no district communication has been claimed. Further, the district was provided with a timely 10-day notice and there is no evidence or claim that the district responded. In the foregoing circumstances I find no basis for denying or limiting district funding. However, the parent’s claim of inability to pay is not supported by documentary or detailed information and the claim of inability “afford” in these circumstances is, I conclude, insufficient to support the direct payment sought by the parent.
ORDER
It is hereby ordered that:
The student is entitled to the following for the 2022-2023 SY:
SETSS, Direct Group, 4 periods per week at the rate of up to $195 per hour from a qualified provider of the parent’s choice. The district may require satisfactory evidence of delivery of those services and of parental payment.
OT, 2x30 minutes per week (1:1) by issuance of RSAs.
Dated: July 7, 2023
_________/s/_____________
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
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.
EXHIBITS
District
NONE
Parent
A Impartial Hearing Request, 9/6/22, 6 pgs.
B CSE IESP, 9/9/20, 9 pgs.
C Ten Day Notice, 8/19/22, 1 pgs.
D Parent Agreement, 7/1/22, 3 pgs.
Impartial Hearing Officer
I District Closing Statement