New York City Department of Education, Impartial Hearing Decision

FINDING OF FACT AND DECISION

Case Number: 233467

Student’s Name: REDACTED

(hereinafter referred to as “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: REDACTED

(hereinafter referred to as “Parent”)

Date of Hearings: October 28, 2022 & November 10, 2022

Closing Date: November 24, 2022

Hearing Officer: Alena Weiserbs

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 28, 2022 & NOVEMBER 10, 2022

For the Student:

REDACTED, Esq.

For the Department of Education:

REDACTED, Esq. and Consultant

INTRODUCTION

On September 7, 2022, the Parent of the Student filed a due process complaint (the “DPC”) under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the REDACTED (the “DOE”) (Parent Ex. A). I was appointed as Impartial Officer (“IHO”) on September 30, 2022. The Parent was represented by REDACTED, Esq. of REDACTED, LLC, and the DOE was represented by REDACTED, Consultant Attorney. A Pendency Hearing occurred on October 28, 2022. The Due Process Hearing went forward in this case on November 10, 2022.

Lists of documentary evidence in this proceeding are appended to this Order. Although only portions of the evidence are referenced herein, the testimony and documents were reviewed in full.

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is a REDACTED -year-old male who is classified as a student with a Learning Disability. (Parent Ex. B-1). His classification as a disabled student is not in dispute. The within proceeding pertains to the Parent’s request for the DOE to continue and to pay for the special education teacher support services (“SETSS”) and related services that the Student has been receiving at REDACTED (“Private School”) for the 2022 to 2023 school year pursuant to his last Individualized Education Service Program (“IESP”) dated March 19, 2021. Said IESP recommended three periods of SETSS per week in a group setting and individual speech therapy twice per week for 30 minute sessions. (Parent Ex. B-8).

The Parent alleges that the DOE failed to offer the Student a free appropriate public education (“FAPE”) for the 2022 to 2023 school year by failing to “supply providers for services it recommended for the Student and fail[ing] to inform the Parent how the services would be implemented” (Parent Ex. A-1). Specifically, the Parent maintains that the DOE failed to provide three periods of group SETSS as per the March 2021 IESP, which was the last created and also the last agreed upon program (Id.; T 4). Parent was unable to find SETSS providers at the DOE rate (Parent Ex. C). Numerous SETSS providers on the DOE’s provider list were contacted and none were available (Id.; T.4). The Parent found Special Edge (a “Provider”) willing to provide SETSS at rate of $195.00 per hour (Parent Ex. D & E; T 4-6). Parent now seeks that the DOE directly pay the SETSS Provider at the rate of $195.00 per hour (Parent Ex. D & E).

The Parent presented documentary evidence at the hearing. The DOE effectively conceded a denial of FAPE by not presenting evidence or testimony, nor did it contest the Parent’s factual allegations or legal conclusions at the hearing. In fact, the DOE agreed that they should be providing the services on the March 2021 IESP. The DOE only objected to the hourly rate of $195 per hour sought by the Parent and was willing to resolve at the rate of $185 per hour for the provider (T 6).

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000). School districts are obligated to provide the services listed in a Student’s IEP.

This case involves a parentally placed student in a non-public school who has a disability. Under the provisions of section 3602-c, students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an Individualized Educational Service Plan (“IESP”) from the public school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them (See also 34 CFR 300.130 and 300.145-147). The IESP must be developed in the same manner and with the same contents as an IEP is developed. School districts are required to provide special education services pursuant to the IESP. Such services must be provided on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.

Per a New York State Education Department guidance document:

The term "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. The new State legislation is intended to maintain the level of services provided to NYS nonpublic students with disabilities through IEPs... Accordingly, parentally placed nonpublic students must be provided services based on need 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. 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 student... 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

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in a parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.

In light of the DOE’s not presenting a case thereby not meeting its burden, the Student is entitled to the requested related services and the services of a duly licensed special education teacher mandated on the Student’s last IESP. In absence of any DOE showing at all, the family’s allegations and evidence must be deemed to be true. Thomson v. Wooster, 5 S. Ct. 788, 791-792 (1985); Comynes v. Corbin, 908 F.2nd 1142, 1149 (1990). Here, the DOE did not present evidence or testimony to show what constitutes the market rate. Mere conclusory statements that a fair market rate is $185 per hour without supporting evidence lacks weight because the basis of the rate was not explained or affirmed by a person with knowledge (T 6-7). As such, I find that the DOE did not provide a FAPE for from the beginning of the 2022 to 2023 school year to the present and must fund the SETSS at the reasonable market rate of $195.00 per hour for the 2022-2023 school year along with the related services.

PENDENCY

The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4], 4410[7][c]; 34 CFR §300.518[a]; 8 NYCRR §200.5[m]; see, Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. Jan. 18, 2005]; Application of a Student with a Disability, Appeal No. 14-024; Application of the Dep't of Educ., Appeal No. 08-061).

Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; see, Wagner v. Bd. of Educ., 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and “strip schools of the unilateral authority they had traditionally employed to exclude disabled students... from school” (Honig v. Doe, 484 U.S. 305, 323 [1987]; Evans v. Bd. of Educ., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing, Bd. of Educ. v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]). The school district should not wait for a formal order from a hearing officer before implementing the student’s pendency placement (See Letter to Goldstein, 60 IDELR 200 [OSEP 2012]).

Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Mackey v. Bd. of Educ., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase “then current placement” has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced (Murphy v. Bd. of Educ., 86 F. Supp. 2d 354, 359 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2002]; Application of a Student with a Disability, Appeal No. 14-024). The U.S. Department of Education has opined that a student’s then-current placement would “generally be taken to mean current special education and related services provided in accordance with a child's most recent individualized education plan” (Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]). However, if there is an agreement between the parties on placement during the proceedings, it need not be reduced to a new IEP, and it can supersede the prior unchallenged IEP as the then-current placement (Evans, 921 F. Supp. at 1189 n.3; see, Bd. of Educ. v. Schutz, 137 F. Supp. 2d 83 [N.D.N.Y. 2001], aff'd, 290 F.3d 476, 484 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]).

Moreover, a prior unappealed impartial hearing officer’s decision may establish a student’s current educational placement for purposes of pendency (Student X, 2008 WL 4890440 at *23; Letter to Hampden, 49 IDELR 197 [OSEP 2007]; Application of a Student with a Disability, Appeal No. 08-107; Application of a Student with a Disability, Appeal No. 08-050; Application of the Dep't of Educ., Appeal No. 08-009; Application of the Dep't of Educ., Appeal No. 07-140; Application of the Dep't of Educ., Appeal No. 07-134). In addition, if “a State review official in an administrative appeal agrees with the child’s parents that a change of placement is appropriate, that placement must be treated as an agreement between the State and the parents” for purposes of establishing the student’s current educational placement (34 C.F.R. § 300.518[d]; see 8 NYCRR § 200.5[m][2]; Schutz, 290 F.3d at 482).

In the present case, the Parent and the DOE agree that pendency is based on the last issued IESP dated March 19, 2021. The DOE, in violation of established pendency regulations under the IDEA, NYS Education Law and caselaw, has begun a policy whereby even though there is no dispute over what constitutes the pendency placement, the DOE will not implement pendency unless the Parent signs a resolution agreement after a DPC has been filed (T. 5-10). Here, the DOE agrees that the Student is entitled to the services in the last IESP dated March 19. 2021, but failed to implement this placement. The DOE’s actions in this case delayed the Student’s access to services, thereby denying the Student’s access to education. This policy has a probable effect of delaying a Student’s pendency placement until a pendency hearing is held and order issued, or the resolution agreement is signed by the parties. In cases like the SETSS case before me, the underlying reason the Parent filed the DPC is that the DOE has not implemented the SETSS or related services in the Student’s last agreed upon IESP. The DOE by refusing to implement pendency created the dispute, requiring intervention.

The DOE’s policy undermines the principles of pendency and is impermissible.^[1] The pendency provision is in effect an “automatic preliminary injunction” to maintain a disabled student’s educational status quo,^[2] and it is triggered immediately after a parent or guardian files a due process complaint on behalf of the student^[3]. The DOE should not wait for a formal order from a hearing officer before implementing the student’s pendency placement.

In the present case, the Parent and the DOE agree that the Student’s pendency placement is based on the March 19, 2021 IESP. I therefore find that the DOE must fund this placement retroactive to the date of the filing of the DPC.

ORDER

IT IS HEREBY ORDERED, based on the facts and evidence presented, as follows that:

• • The DOE must provide and directly fund the Provider at its reasonable market rate of $195.00 per hour for three periods per week of group SETSS, for the entire 2022 to 2023 school year pursuant to the program mandated by the March 19, 2021 IESP and retroactive to the filing of the Due Process Complaint on September 7, 2022;
• • All invoices submitted to the DOE by the Provider shall be paid directly to the Provider by the DOE within fifteen days for services rendered;
• • The DOE shall provide Related Service Authorizations to the Parent for speech language therapy twice per week for thirty-minute sessions if they have not already done so; and
• • The DOE shall provide and/or fund speech-language therapy twice per week for thirty-minute sessions pursuant to the March 19, 2022 IESP, for the entire 2022 to 2023 school year pursuant to the program mandated in the March 19, 2021 IESP and retroactive to the filing of the Due Process Complaint on September 7, 2022.

Dated: December 5, 2022

____________________

Alena Weiserbs

Impartial Hearing Officer

PARENT EXHIBITS

Exhibit

Document

Date

Pages

A Impartial Hearing Request 09/06/2022 6

B CSE IESP 03/19/2021 11

C Call Log 08/30/2022 1

D Parent Agreement 07/01/2022 3

E Affidavit of Services 11/3/2022 1

APPEAL RIGHTS

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.

Footnotes

[1] See Letter to Goldstein, 60 IDELR 200 (OSEP 2012).

[2] Zvi D. v. Ambach, 694 F.2d 904, 554 IDELR 226 (2d Cir. 1982).

[3] See Letter to Winston, 213 IDELR 102 (OSEP 1987).