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CASE NUMBER: 581816 - NYC: 233649
FINDINGS OF FACT AND DECISION
- and -
Decision on Motion to Dismiss
Decision on the Issue of Pendency
Case Number: [REDACTED]
Student’s Name: [REDACTED]
School District: [REDACTED]
Impartial Hearing Officer: Richard J. Zeitler, Jr.
Date of Filing: [REDACTED]
Hearing Requested by: Parent
Date of Hearing: [REDACTED]
Record Close Date: 12/07/2022
Date of Decision: 12/21/2022
Names and Titles of Persons Who Appeared November 29, 2022
For the Student
[REDACTED], Esq.
[REDACTED], Provider Director For the New York City Department of Education
[REDACTED], Consultant Impartial Hearing Representative
Background
On September 6, 2022, the Parent, by and through the Parent’s Attorney, filed a due process complaint (DPC) against the New York City Department of Education (DOE or Department),[1] on behalf of the Student, pursuant to the Individuals with Disabilities Education Act (IDEA or the Act),[2] and the New York State Education Law.[3] The DPC asserts that the Student has been denied a free and appropriate public education (FAPE) and equitable services in that, for the 2022-2023 school year, the Department has failed to provide the Student with five sessions per week of special education itinerant teacher (SEIT).[4] The DPC further alleges that the Parent attempted but was unable to find a qualified SEIT provider that could provide the services mandated in the Student’s Individualized Education Program (IEP) at the standard rate paid by the DOE, and that the Parent now requests that the Department fund the cost of SEIT for the 2022-2023 school year at an enhanced rate.[5] The Parent also requests that I issue an order regarding the issue of pendency placement and services from the date the DPC was filed.[6]
Procedural History
I was appointed the impartial hearing officer (IHO) over this matter on October 3, 2022. On October 31, 2022, a settlement conference was held, immediately followed by a scheduling of the hearing for this matter. On November 24, 2022, I issued an Order of Extension.[7] The merits hearing was held before me on [Redacted],[8] wherein all of the Parent’s exhibits were admitted into evidence.[9] The Department presented no exhibits or witnesses, while the Parent’s offered the testimony of the SEIT Provider’s Director. The Department also moved to dismiss the matter on the issue of mootness, for which I accepted briefs from both Parties.[10] This decision now follows, covering pendency, the Motion to Dismiss and, finally, the merits of my Findings of Fact and Decision.
I. Pendency The issue of pendency is straightforward in this matter, as there is no dispute as to the placement and services.
A child is entitled to remain in his or her placement at public expense during the pendency of a dispute over an individualized education program (IEP) or individualized education service plan (IESP), regardless of the merits of the dispute or the outcome of the relevant proceedings.[11] 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.”[12] The New York State Education Law includes a similar provision.[13]
The pendency inquiry focuses on identifying what specific services and placement are required to maintain the student’s "then current educational placement” because the district must continue to finance those services and placement until the dispute is resolved.[14] The phrase “then current educational placement” is not defined in the IDEA or New York statute, but it has been found to mean “the last agreed upon placement at the moment when the due process proceeding is commenced,”[15] including: “(1) 'the placement described in the child's most recently implemented IEP'; (2) 'the operative placement actually functioning at the time when the stay put provision of the IDEA was invoked'; or (3) 'the placement at the time of the previously implemented IEP.'"[16]
Here, the Parent alleged that the April 29, 2021 IEP was the last-agreed to program for the Student,[17] and requested that the program found in that IEP, including 5 hours of one-to-one (1:1) SEIT per week, and group Parent Counseling and Training (PCAT) for 30 minutes per quarter, for the ten-month school year, continue during the pendency of this matter.[18] When asked for the Department’s position as to pendency, the Department Representative stated only that the “Department takes no position as to pendency at this time, pending the outcome of the motion to dismiss.” I do not find this statement to condition the Department’s position on pendency, as the Motion to Dismiss was offered with respect to the merits of the Parent’s claims and has no effect on the right to pendency. Therefore, given the lack of a dispute,[19] plus the fact that the April 29, 2021 IEP contains the last agreed upon program, and that there is no other program described in the record, I find no reason not to find it “the then current placement” of the Student,[20] and I shall order the services found in the April 29, 2021 IEP to be implemented during the pendency of this proceeding.
II. Motion to Dismiss The Department filed a Motion to Dismiss, contending that the matter is moot because the Parent revoked consent to special education services before the 2022-2023 school year began. In support, the Department attached exhibits to show that the Student had been receiving special education services pursuant to an IEP developed on April 28, 2020,[21] and on March 23, 2021, when the Department proposed a new IEP meeting,[22] the Parent “notified the DOE in writing that she revoked consent for special education services for the [S]tudent.”[23] The next day, the Department issued a “Parent Revocation – Notice of Termination” (Notice of Termination) stating, in part, that “the school district will stop providing all special education services specified in [the Student’s IEP] effective 04/15/2021.”[24] It goes on to state, in part, “[i]f you believe your child still needs special education services, but disagree with the recommendations on your child’s IEP, you have the right to ask for an IEP meeting to review your child’s IEP....”[25] In addition, the Notice of Termination states that withdrawing consent for services “means that the school district... will not have an IEP meeting or develop an IEP for your child for the further provision of special education and related services”[26] and, under the words “No records exist” for a “Program” and for “Related Services[,]” the document states “your child will no longer receive special education services as indicated above.”[27] The Department’s evidence also demonstrates that the DOE and the Parent held a new IEP meeting on April 29, 2021, notwithstanding the Notice of Termination, wherein the Department recommended 1:1 SEIT for five hours per week (two 30 minutes sessions per day), and group PCAT (once per quarter, for 30 minutes), beginning May 3, 2021.[28] Almost a year later, on March 11, 2022, the Department sent a second Notice of Termination, which informed the Parent that services would cease as of March 28, 2022.[29] The document states again that special education services were being stopped “because you have notified the school district in writing that you are withdrawing your consent for the provision of special education services[,]”[30] but the Department offered nothing to show that there was another revocation subsequent to the Parent’s March 23, 2021 emails. The Department also argues that dismissal is proper even where an IEP meeting was convened after the Notice of Termination because the Commissioner’s Regulations do not prohibit an IEP meeting, and therefore the Notices of Termination rendered the matter moot, without a case or controversy, and subject to dismissal.
The Parent submitted a brief in opposition, which contends the following. The Notices of Termination were procedurally flawed, in that there is no indication the Parent was served with them, and because the Department knew that the Parent’s native language was REDACTED, as indicated in the IEPs.[31] Consent was not properly obtained from the Parent because she was not fully informed of the ramifications of revoking services, in her native language or otherwise. Finally, the Department’s decision to hold an IEP meeting on April 29, 2021, after it told the Parent there would no longer be an IEP, “reactivated and made [the Student] eligible for services”[32] and there was no revocation of consent for services thereafter,[33] meaning that the IEP was still in effect and can properly be deemed the last agreed upon IEP for the services at issue.
I agree with the Parent that the Department failed to follow its own procedures in providing notice that services were terminated. Pursuant to the Commissioner’s Regulations, once consent for services has been obtained from a parent, they may “revoke[] consent in writing for the continued provision of special education programs and services[.]”[34] There is no “consent,” however, unless “the parent has been fully informed, in his or her native language or other mode of communication, of all information relevant to the activity for which consent is sought[.]”[35] I find that the same communication requirements for consent apply to revocation of that consent, and revocation therefore is not truly voluntary unless it is obtained upon information provided in the parent’s native language. Once the Parent wrote “I don’t think she needs [an] IEP” to the Department, and the Department sought her clarification regarding whether this meant she was revoking consent, it was incumbent upon the DOE to make that request in her native language as well. This is would have been the only way to ensure that her statement of revocation was made knowingly and voluntarily.
I also agree with the Parent that the Notice of Termination sent to the Parent on March 24, 2021[36] was required to be provided in REDACTED. When a parent indicates that they wish to revoke consent for special education services, the Department “must provide prior written notice... before ceasing the provision of special education programs and services[.]”[37] That “prior written notice must be... provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.” The Department offered no argument or evidence to suggest that it could not have provided the Notice of Termination in REDACTED. The Notice of Termination thus likewise denied the Parent sufficient knowledge of what was occurring, and was procedurally flawed.
As to service of the Notice of Termination, I do not find that it was improper. When a parent claims that they did not receive a mandatory notice, such as a School Location Letter, the Department has a burden to demonstrate that service was effectuated, through either an affidavit of service or evidence of routine practice that raises a presumption of service.”[38] Here, there is no claim or evidence that the Parent did not receive the Notice of Termination, only that there was no indication of service in the Department’s evidence. The burden to prove service was thus not raised.
Finally, I do not agree with the Department’s substantive argument that because the Regulations do not prohibit a subsequent IEP meeting, revocation was preserved even after the development of the April 29, 2021, IEP. It is true that when a parent revokes consent for special education services, the Department “is not required to convene a meeting of the committee on special education or develop an IEP[.]”[39] The Regulations do, however, mandate that the “district... shall not continue to provide any special education programs and services to the student[.]”[40] Thus, even if the Department’s actions with respect to the revocation request and the Notice of Termination had been free of any procedural fatal flaws, I would still find that the Department’s voluntary acts of convening an IEP meeting after it sent the Notice of Termination, conducting that IEP meeting (with the Parent’s participation), and then recommending services it obligated itself to provide, all had the effect of rescinding the Parent’s revocation of consent for special education services.[41]
For the foregoing reasons, the Motion to Dismiss is denied.
III. Findings of Fact and Decision
Findings of Fact
At the hearing, the following was not in dispute. The Student is six years old and attends the 1st Grade at the Private School for the 2022-2023 school year.[42] The Student was classified by the Committee on Special Education as a “Preschool Student with a Disability,”[43] and in the Individualized Educational Program (IEP) in evidence, the CSE recommended “Special Education Itinerant Teacher Services... 1:1 Direct... 5 hours... 30 minute sessions – 2 sessions per day[.]”[44] The Department did not offer the Parent a specific SEIT provider, and the Parent was unable to find a provider at the Department’s standard rate, but did find a provider who can administer the services at an enhanced rate.[45]
The Provider’s report from the previous school year describes how the Student “displays some difficulties in focusing on activities” and “gets easily distracted” which requires “redirection along with motivation to stay on task and increase attention span.”[46] The SEIT Instructor who works with the Student has held New York State teaching certificates in “Students with Disabilities (Birth – Grade 2)” since August 13, 2020, and in “Early Childhood Education (Birth – Grade 2)” since April 24, 2021.[47]
The Parent produced the SEIT Provider’s Director, who testified as follows. The Student has been receiving SEIT[48] for the 2022-2023 school year, beginning on September 10, 2022.[49] He could not recall, or did not believe, that the Provider administers to the Student ten 30-minute sessions per week, as opposed to five one-hour sessions per week.[50] The Provider charges $110 per hour for the Student’s SEIT services.[51] The Provider did enter into a contract with the Parent, but the Director could not recall the specific provisions of the contract.[52]
In closing, the Department argued that the SEIT Provider Agency was not appropriate because it did not provide services as delineated in the IEP. The Parent contended in closing that the services were appropriate, whether they were provided in ten 30-minute sessions per week, or five one-hour sessions per week.
With respect to credibility, I find as follows. The evidence submitted by the Parent, including the witness testimony and the exhibits, was detailed, comprehensive, and sufficiently consistent with the allegations in the due process complaint. Moreover, the Department offered no evidence to rebut or otherwise challenge the Parent’s evidence, or the veracity of the witness. I therefore find all the Parent’s evidence credible, and the weight afforded to each cited piece of evidence will be reflected in the analysis.
Legal Framework The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[53] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP or IESP.[54] When the program is developed in New York City, a FAPE requires the DOE to both comply with the procedural requirements set forth in the IDEA, and recommend a placement and a program that are reasonably calculated to enable the student to receive educational benefits.[55]
If a procedural violation is alleged, courts and IHOs may find that a student did not receive a FAPE if the procedural inadequacies: (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits.[56] In general, however, the decision should be determined on substantive FAPE grounds,[57] that is, whether the school district “provid[ed] personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”[58]
Substantively, school districts must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs.[59] The IDEA, however, confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools.[60] Under State law, parents who have privately enrolled their child in a nonpublic school may nonetheless seek educational "services" for their child with a disability by filing a request in the district 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.[61] Then, the district of location's CSE must review the request 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]."[62] This has become known as “dual enrollment.”[63]
If a dispute arises between a parent and a school district over the provision of services under an IEP or IESP, “[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, as called for by the IDEA.[64] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act,”[65] and that damage awards are not available under the IDEA.[66] An IHO “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[67] I am mindful that, regardless of any deficiencies in the Parent’s justification for the rate paid to the Provider, the Department is nevertheless obligated to provide and pay for SEIT; holding otherwise would countenance the denial of FAPE.
Analysis
Under the IDEA and the NY State Education Law, school districts have the burden of proof that a FAPE has been provided to the student, except that where tuition reimbursement is sought, the parent has the burden of proof with respect to the appropriateness of the parent’s chosen educational placement.[68] I must, therefore, determine whether the Department met its burden to demonstrate that its offered program was reasonably calculated and implemented to provide this Student with educational benefits.
The IEP in evidence recommended “Special Education Itinerant Teacher Services... 1:1 Direct... 5 hours... 30 minute sessions – 2 sessions per day[.]”[69] The Department offered no evidence that it assigned or otherwise offered the Parent a SEIT provider for the 2022-2023 school year, instead leaving it to the Parent to find a provider.
The Department is responsible for implementing the programs it recommends in IEPs and IESPs, and it has been held that the Department may not effectively compel the Parent to resort to self-help in obtaining a provider.[70] Such a “de facto delegation from the district to the parent of the obligation to find a... provider... at an acceptable rate is manifestly unreasonable,”[71] and a violation of State law.[72] The DOE thus failed to implement the IEP, which constitutes a denial of FAPE.[73]
As to the remedy, however, the inquiry has not ended. Although the Department chose to not present a case, “an outright default judgment awarding any and all of the relief requested without question is a disfavored outcome.”[74] This is so “even where the district’s conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious.”[75] Moreover, the State Review Office (SRO) has held that when the parent has not already paid the provider, and seeks direct funding rather than reimbursement, the “matter is in a subset of more complicated cases in which the financial injury to the parent and the appropriate remedy are less clear.[76] Because the Parent had to find the provider on her own and because “caselaw supports reimbursement and direct remedies in a unilateral placement case,” the SRO has determined that the question of whether a provider should be directly paid is somewhat similar to the Burlington/Carter framework, which “forecloses any complete disavowal of the parent’s burden of production and persuasion related to the private, unilateral services obtained by the parent.”[77] Thus, in a case such as this, where the central issue is whether a third-party provider selected by a parent should be remunerated with an enhanced rate over what the Department normally pays, the Parent’s evidence must be scrutinized, consistent with my obligation and equitable authority to ensure that the remedy “be appropriate in light of the purpose of the Act.”[78] The evidence therefore must show that the providers’ rates are reasonable and appropriate under the circumstances.
The factors that have been found relevant to the reasonableness of a provider’s services rate include: the Provider’s explanation of the rate, including its costs and the qualifications of its instructors[79]; the value that specialized certification, such as a bilingual extension, adds to instruction[80]; the Parent’s efforts to locate a DOE-approved provider from a list provided by the Department to the Parent[81]; and whether the Parent directly paid the Provider or is contractually obligated to pay the Provider in the event the Department is not ordered to fund the services at the requested rate.[82] I will therefore determine, in light of these factors, whether the requested rate is unreasonable.[83] Finally I will consider when the Parent notified the Department of the enhanced rate claim, because this establishes the first date the DOE would have had an opportunity to modify its offered rate for SEIT in light of the Parent’s claims.[84]
Here, the Parent offered evidence that the Student is in 1st Grade and that the SEIT instructor is certified by the State to provide special education teaching services for students up to the 2nd grade.[85] The instructor was therefore sufficiently qualified. The SEIT Provider’s Director explained that the Agency charges $110 per hour,[86] which is lower than what they charge for Special Education Teacher Support Services (SETSS).[87] It was undisputed that the Parent had attempted to find other providers without success.[88] In addition, notice to the Department was sufficient because the DPC was filed on September 6, 2022, which is four days before the services began.[89] Finally, there was a contract with the Parent, although nothing was offered to demonstrate that the Parent is liable for the cost of SEIT if the Department were to prevail.[90]
On this record, I find that the above factors tend to support and justify the Provider’s rate for SEIT, except for the lack of a contract in the record or other evidence to prove the Parent’s liability for the costs. I find this deficiency, however, is counterbalanced by the fact that the SEIT Provider’s rate is markedly lower than what is normally charged for special education teaching services.[91] I therefore find that the rate of $110 is not unreasonable and that it should be applied under the circumstances of this case.
Decision and Order
It is hereby ordered, that the New York City Department of Education shall provide, pursuant to the Order of Pendency contained in this decision, five (5) hours of one-to-one (1:1) SEIT per week, and group Parent Counseling and Training (PCAT) at 30 minutes per quarter, for the ten-month school year, dating back to September 6, 2022, the filing of the DPC, and to continue through the pendency of this matter; and it is further, Ordered, that the DOE shall pay the SEIT Provider for the administration of SEIT services, at no more than a total of five hours per week, for the ten-month 2022-2023 school year, less any amounts paid under pendency, at a rate of $110 per hour, with such payment to be made within thirty (30) days of a submission to the DOE of any invoices for such services, together with an affidavit attached to each invoice attesting to the provision of the SEIT services administered to the Student for the period covered by each invoice, up to the end of the ten-month 2022-2023 school year.
So Ordered.
Dated:12/21/2022
Richard J. Zeitler, Jr. (signed electronically)
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.
DISTRICT EVIDENCE
Exhibit Title Date Pages N/A
N/A[92]
N/A
N/A
PARENT EVIDENCE
Exhibit
Title
Date
Pages
A Impartial Hearing Request 09/06/2022 6
B Individualized Education Program 04/29/2021 13
C Quarterly Progress Report 06/01/2022 4
D Teacher’s Certificates 04/24/2022 08/13/2022 2
E Affidavit of Director of SEIT Provider 11/25/2022 1 IHO EVIDENCE Exhibit
Title
Date
Pages
I.
Order of Extension
11/24/2022
1
II.
Department Motion to Dismiss
09/12/2022
1
III.
Department MtD first exhibit (IEP)
01/03/2019
18
IV.
Department MtD second exhibit (IEP)
04/28/2020
14
V.
Department MtD third exhibit (emails, Parent and Dept.)
03/23/2021
2
VI.
Department MtD fourth exhibit (Notice of Termination)
03/24/2021
4
VII.
Department MtD fifth exhibit (IEP)
04/29/2021
13
VIII.
Department MtD sixth exhibit (Notice of Termination)
03/11/2022
4
IX.
Impartial Hearing Request
09/06/2022
6
X.
Parent Response Brief to MtD, with exhibit
12/06/2022
9
Footnotes
[1] See Ex. A-1.
[2] See 20 U.S.C. § 1415(f).
[3] See Educ. Law § 4404(1) et seq., and specifically, § 3602-c.
[4] See A-1. The DPC also requests Parent Counseling and Training, as well as related services authorizations; however, these requests were withdrawn at the hearing, see Tr. at pp. 19-20, leaving only the issue of SEIT payment.
[5] See id. at A-2.
[6] See id.
[7] See IHO Ex. I.
[8] The transcript from the September 12, 2022 hearing is denoted “Tr.”
[9] See Exs. A through D, and Exs. F through I. The Parent withdrew proposed Ex. E, and I admitted Exs. B and C over the Department’s objection.
[10] See IHO Exs. II through X.
[11] See Mackey ex rel. Thomas M. v. Bd. of Educ. for the Arlington Cent. Sch. Dist., 386 F.3d 158, 160 (2d Cir. 2004) (citing 20 U.S.C. § 1415[j]); see also 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]).
[12] Ventura de Paulino, supra. (quoting T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151 [2d Cir. 2014] [itself citing Mackey, supra., 386 F.3d at 163]).
[13] See Educ. Law § 4404(4)(a).
[14] Zvi D. v. Ambach, 694 F.2d 904 (2d Cir. 1982).
[15] Arlington Cent Sch. Dist. v. L.P., 421 F.Supp. 2d 692. 696 (S.D.N.Y. 2006) (citing Murphy v. Arlington Cent. Bd. of Educ., 86 F.Supp. 2d 354, 359 [S.D.N.Y. 2000], aff’d 297 F.3d 195 [2002]).
[16] DOE v. East Lyme Bd. of Educ. et al, 790 F.3d 440, 452 (quoting Mackey ex rel. Thomas M. v. Bd. of Educ. for the Arlington Cent. Sch. Dist., 386 F.3d 158, 160 [2d Cir. 2004]).
[17] See Ex. A-1.
[18] See id. at A-2 to A-3; see also Ex. B-9.
[19] I do not find the Department’s representative’s statement that pendency is not disputed “pending the outcome of the motion to dismiss” to condition the Department’s position on pendency, as the Motion to Dismiss was offered with respect to the merits of the Parent’s claims and has no effect on the right to pendency.
[20] DOE v. East Lyme Bd. of Educ. supra.
[21] See IHO Ex. IV.
[22] See IHO Ex. V.
[23] Motion to Dismiss at pg. 1. The “writing” is a March 23, 2023 email exchange between the Parent and a DOE official with a Department email address where in the Parent first wrote, “I don’t think she needs IEP” and, after the official asked for a statement “that you no longer want services[,]” the Parent wrote, “Next school year I don’t want services for [the Student] [date of birth].” IHO Ex. V.
[24] IHO Ex. VI (4-1).
[25] Id.
[26] Id. (4-1 to 4-2).
[27] Id. (4-2 to 4-3) (emphasis in original).
[28] IHO Ex. VII (5-9); see also Ex. B-9.
[29] IHO Ex. VII (6-1).
[30] Id.
[31] IHO Exs. III (1-1) and VII (5-1).
[32] Parent’s Opposition to Motion to Dismiss at pg. 2.
[33] The Parent also claims that the March 11, 2022 Notice of Termination should be considered a nullity because on January 31, 2022, a different IHO had imposed a pendency order retroactive under a different Case No. to September 1, 2021. See id. at pp. 2 to 3, and “Exhibit A” attached to the Parent’s Opposition to Motion to Dismiss. I do not need to reach a decision on this claim, for two reasons. First, the existence of a pendency order in January of 2022 does not mean that the Parent could not have consent to revoke services thereafter. More importantly, however, there is no evidence that the Parent actually did revoke consent in 2022, which leaves the March 23, 2021 email as the only evidence of revocation. This revocation clearly precedes the April 29, 2021 IEP and the services described therein that were subsequently ordered in the other IHO’s pendency order. I therefore find that the March 11, 2011 Notice of Termination does not by itself prove any revocation of consent for services.
[34] NYCRR § 200.5(b)(5).
[35] Id. at § 200.1(l)(1) (emphasis added).
[36] For the reasons stated in footnote 33, supra., I find the March 11, 2022 Notice of Termination irrelevant to the question before me.
[37] NYCRR § 200.5(b)(5)(i).
[38] See V.A. v. City of N.Y., No. 20-CV-0989(EK)(RML), 2022 U.S. Dist. LEXIS 84556 (E.D.N.Y. May 10, 2022).
[39] NYCRR § 200.5(b)(5)(iv).
[40] Id. at § 200.5(b)(5)(i).
[41] I note that the act of convening the IEP meeting contravened the Notice of Termination, which states that the Department will not have an IEP meeting or develop an IEP. IHO Ex. II (4-1 to 4-2). Moreover, the Notice of Termination states that a described list of services was being terminated, and then it failed to list any services. This is not sufficient notice. Finally, I note find it unlikely that the Parent would have wanted to attend the IEP meeting if she had fully understood what the Department had asked her clarify with respect to a revocation just a month earlier.
[42] See Ex. A-1; see also Tr. at pg. 33.
[43] See Ex. D-1.
[44] Ex. B-9.
[45] See Ex. A-1.
[46] Ex. C-1.
[47] Exs. D-1 to D-2.
[48] The Director’s affidavit describes SETSS but he clarified during live testimony that the Provider only offers SEIT to the Student. See Tr. at pp. 33 and 35.
[49] See Ex. E-1.
[50] See Tr. at pp. 25 to 32.
[51] See id. at pp. 37 and 39. The Director’s affidavit states that the Provider charges $150 per hour, but this is for Special Education Teacher Support Services. See Ex. E-1.
[52] See Tr. at pp. 37 to 38.
[53] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a) and (b)(2).
[54] C.F.R. § 300.13.
[55] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[56] U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
[57] U.S.C. § 1415(f)(3)(E)i).
[58] Rowley, 458 U.S. at 203.
[59] See 20 U.S.C. § 1412(a)(l)(A); Educ. Law§ 4402(2)(a), (b)(2).
[60] See 34 CFR 300.137(a).
[61] Educ. Law § 3602-c(2).
[62] Educ. Law § 3602-c(2)(b)(l).
[63] See, e.g., Application of a Student with a Disability, Appeal No. 22-024.
[64] U.S.C. §§ 1221e-3, 1415(e)-(f); see also Education Law § 4404(1); 34 CFR §§ 300.151- 300.152; 8 NYCRR §§ 200.5(h)-(l).
[65] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[66] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[67] See East Lyme Bd. of Educ., 790 F.3d at 454.
[68] Education Law § 4404(1)(c); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012). As explained more fully below, SETSS cases have been treated as a hybrid between unilateral placement theory cases, see, e.g., Application of a Student with a Disability, Appeal No. 20-115, and pure compensatory education cases. See, e.g., Foster v. Bd. of Educ. Of the City of Chicago, 611 Fed. App.’x 874, 878-79 (7th Cir. 2015) (compensatory education includes reimbursement for out-out-pocket educational expenses). I apply this standard to the related service of SEIT.
[69] Ex. B-9.
[70] See, e.g., Application of a Student with a Disability, Appeal No. 21-068.
[71] Id.
[72] See Application of a Student with a Disability, Appeal No. 20-115 (“core instruction provided by a school district must be performed either by teachers who are employees of the district or pursuant to a contract for special education services that a district is specifically authorized by law to enter into,” id.) (internal citation omitted, emphasis added); see also Application of a Student with a Disability, Appeal No. 20-087; and Application of a Student with a Disability, Appeal No. 20-140. In other words, if the DOE is not directly performing core instruction, it should not then be passing the obligation to contract out that instruction onto the Parent.
[73] See Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
[74] See Application of a Student with a Disability, Appeal No. 22-054 (June 22, 2022) at pg. 3 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]).
[75] Application of a Student with a Disability, Appeal No. 22-004.
[76] Application of a Student with a Disability, Appeal No. 20-115 (citing E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 [2d Cir. 2014] [holding that equitable considerations allow for direct payment for tuition where the parents were legally obligated to make payments but had not done so due to a lack of financial resources]).
[77] Application of a Student with a Disability, Appeal No. 20-115 (finding, inter alia, the analysis "unworkable to the extent that the SETSS services can be construed as a state-approved option”).
[78] East Lyme Bd. of Educ., 790 F.3d at 454 (citation omitted).
[79] Application of a Student with a Disability, Appeal No. 20-140 (while “[g]enerally, teachers at a unilateral placement need not be State-certified... there must be objective evidence of special education instruction or supports that are specially designed by... providers... who have reasonable qualifications that are specifically related to the student’s deficits”).
[80] Application of a Student with a Disability, Appeal No. 21-183, at pp. 20-21 (Oct. 29, 2021) (approving compensatory SETSS by a bilingual reading specialist at a rate not to exceed $200 per hour).
[81] See, e.g., Application of a Student with a Disability, Appeal No. 21-096 (May 26, 2021).
[82] See Application of a Student with a Disability, Appeal No. 21-068 (holding that “it is not appropriate equitable relief... to require the district to either reimburse the parent for the costs of SETSS or to directly fund SETSS” where “there is inadequate proof that the parent has expended any funds to pay for SETSS... or is legally obligated to do so”).
[83] See, e.g., Application of a Student with a Disability, Appeal No. 21-138 at pp. 12-13 (Aug. 11, 2021) (determining that “there is no basis for a finding that the rate of $175 was unreasonable”).
[84] See id. (finding further that despite the per se reasonableness of the rate, a reduction in rate that had been imposed by the IHO was justified where the parent did not provide a ten-day notice (TDN), per 20 U.S.C. § 1412[a][10][C][iii] and 34 CFR § 300.148[d][1]). I will contrast this decision, however, to the extent that I do not find a TDN necessary where the parent files a DPC at the beginning of the school year, which provides the same notice and opportunity for the DOE to address how it provides SEIT to the Student as would a TDN.
[85] See Ex. D-1.
[86] See Tr. at pp. 37 and 39.
[87] See Ex. E-1.
[88] See Ex. A-1.
[89] See Ex. E-1.
[90] See Tr. at pp. 37 to 38.
[91] For the related and sometimes lower service of SETSS, tates have been upheld on appeal at $175 per hour, see Application of a Student with a Disability, Appeal No. 21-138, and $200 per hour. See Application of a Student with a Disability, Appeal No. 21-183, at pp. 20-21 (Oct. 29, 2021) (for a bilingual reading specialist).
[92] The Department attached exhibits to its Motion to Dismiss, which were made part of the administrative record but were not admitted or considered with respect to the merits of this Findings of Fact and Decision. I therefore list them as IHO Exhibits only to the extent that I considered them with respect to the Motion to Dismiss.