New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

March 20, 2023

For the Student:

[REDACTED], Esq., with the Law Office of [REDACTED]

For the Department of Education:

[REDACTED], Esq., District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on or about September 8, 2022 (P-Ex. A) ^[1]. The DPC alleges that the DOE failed provide Student with a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by failing to provide the Student with appropriate services during the 2022-2023 school year. (P-Ex. A).

Parent, on behalf of Student, is seeking the following:

1. A finding that the failure of the DOE to convene and recommend placement or services is a denial of FAPE;

2. Absent an up-to-date program, an Order that the DOE continue to fund the program outlined in the FOFD dated 07/12/2021 at the provider’s prevailing rate;

3. Payment of Parent’s Attorney’s fees and expenses associated with representation in this matter; and

4. Any further relief that the hearing officer may deem just and proper to ensure that the student receives a FAPE;

5. All other claims were withdrawn on the record.

PROCEDURAL HISTORY

A prehearing conference was held on November 7, 2022, and a prehearing conference Order was issued subsequent to that conference. Thereafter, several status conferences were held and several applications to extend the compliance date were granted.

On March 20, 2023, an impartial hearing commenced. The DOE appeared and was represented by a counsel. The DOE did not submit any documents into the record as exhibits nor did they call any witnesses or cross examine Parent’s witnesses. Parent was also represented by counsel and submitted numerous documents into the record and further submitted an affidavit in lieu of testimony of the Provider and also of the Parent. Both witnesses were available for cross examination and/or questions by the DOE and/or your undersigned IHO.

FINDINGS OF FACT

Student is an [REDACTED]-year-old that presently resides with his Parent in New York City (P-Ex. A). Student has struggled both socially and academically and he requires much assistance. Parent believes that without this assistance, Student would be unable to maintain his mainstream placement (P-Ex. H).

Student was mandated in an IESP (P-Ex. D), and also a subsequent FOFD (P-Ex. B), to weekly SETSS, Direct, Group, Yiddish, for five (5) periods per week in a separate location, Speech-Language Therapy, Individual, Yiddish, 2 times per week for 30 minutes in a separate location flexible, and counseling services, individual, in Yiddish, 1 time per week for 30 minutes in a separate location flexible. Parent was unable to locate a provider for said services despite making multiple phone calls to SETSS providers published on the DOE website. (P-Ex. H). Parent testified that the DOE also did not make a SETSS provider available to her (P-Ex. H).

Because Parent was unable to find a SETSS provider through the DOE, they submitted a ten-day notice informing the DOE that they intended to implement the program on their own (P-Ex. H, C) and after receiving no response, they contacted the Private Agency (P-Ex. H).

The Private Agency is providing five (5) hours per week of SETSS for the duration of the 2022-2023 school year, pursuant to a duly executed contract for these services, signed by Parent (P-Exs. E, H). Said contract makes Parent liable to pay for the services provided should they not prevail in the within decision (P-Ex. E)

Parent testified that paying for the services would pose an extreme financial burden and they would not be able to do so without the support of friends and family (P-Ex. H).

A Representative from the Provider testified, by way of affidavit, the agency charges $195.00 per hour of SETSS (P-Ex. I). The representative testified that this rate includes one-on-one supervision, educational resources and support, professional development and materials, employment taxes, administrative costs and overhead costs, in addition to professional development training to its providers. (P-Ex. I).

The representative further testified that the Agency provides 5 hours per week of SETSS to Student for the 2022-2023 school year (P-Ex. I) and that the specific SETSS provider is certified by NYS to teach Students with disabilities and is a bilingual Yiddish provider. (P-Ex. I).

Aside from providing direct, 1:1 service to Student, the SETSS provider also prepares for sessions, creates goals, writes progress reports, and meets with teachers and parents. Services are provided to Student on a pull-out basis and 1:1 in a separate location (P-Ex. I). Each session involves specialized instruction for Student (P-Ex. I).

Student has already shown signs of progress with his SETSS provider, but his academic and social delays warrant the need for continued services on a 1:1 basis, 5 periods per week for the 2022-2023 school year (P-Ex. I).

CONCLUSIONS OF LAW:

The Individuals with Disability Education Act (“IDEA”) is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See: 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits.” See: Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student’s recommended program must also be provided in the least restrictive environment with non-disabled peers. See: Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998). Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE 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) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See: Walczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress must be meaningful; i.e., more than mere trivial advancement. See: Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA.” In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”

Under New York State Education Law Section 3602-c, students with disabilities who are placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an 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. The CSE of the district of location must develop an IESP in the same manner and with the same contents as an IEP. See: Memorandum from James P. DeLorenzo, re: Chapter 378 of the Laws of 2007, New York State Education Department, Sept 2007. A parent who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location. See: Id. at 5.

While the statutory scheme of Education Law § 3602-c places the responsibility of selecting and placing the student in a nonpublic school on the parent, the implementation of the services called for by a student’s IESP falls on the district insofar as “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]). See: Application of Student with a Disability, SRO Appeal 16-008. 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. Additionally, unlike the provisions of the IDEA, section 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404. Id. Except for in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing (Educ. Law § 4404[1][c]; See: R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]). While it may very well be permissible for a district to include the parent in the identification of a particular provider, especially if the parent is willing and able to do so, it does not follow that the responsibility to redress a parents’ inability to locate a provider is shifted permanently to the parent. See: Application of Student with a Disability, SRO Appeal 17-034. A district cannot be absolved of its statutory obligation to implement SETSS for the student simply by asserting that the parents did not engage the services of the SETSS providers of whom the district referred them. Id. The district has the obligation to provide services in conformity with the IESP. See: Educ. Law § 3602-c(2)(a), (b)(1); 20 U.S.C. § 1401(9)(D); 34 CFR 300.17(d); see also 20 U.S.C. § 1414(d); 34 CFR 300.320.

ANALYSIS:

I. Denial of a Free Appropriate Public Education: The DOE was represented at the hearing but there was no opening, no direct examination of any witnesses, no cross-examination of any witnesses, no closing and no documentary evidence put forth to defend the position that the DOE offered Student a FAPE. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances,” Endrew F. v. Douglas County School District, 137 S.Ct. at 1002 (2017). Here, the District provided no defense of FAPE at all and neither party disputed the appropriateness of Student’s IESP.

Based upon the lack of evidence above, I find that the DOE failed to meet their burden and thus I must find the DOE did not provide the Student with a FAPE for 2022-2023 school year.

II. Unilaterally Obtained – SETSS

Having already found that the DOE failed to meet its burden to show that the IESP was appropriate, it is now necessary to discuss the appropriateness of Parent’s requested relief.

State Education Law places the responsibility for implementation of the services set forth in an IESP on the DOE. However, since the DOE conceded FAPE and did not put forth a case, there was no point during the impartial hearing where the DOE offered any evidence that it attempted to select or assign a SETSS provider to deliver the services required by Student’s IESP. There was also no explanation from the DOE as to why it did not just schedule the services, at which time Parent would have had the responsibility to produce Student for such services. This left Parent with no other option than to locate a provider on Parent’s own.

This failure on the part of the DOE to meet its obligation to find a SETSS provider to implement the SETSS at an acceptable rate is unacceptable as that it is the DOE’s nondelegable responsibility to ensure that services are delivered, whether in accordance with an IESP, an IEP, or pursuant to the stay put rule, and cost is not a permissible reason to defer or avoid the obligation to implement a student's services (see Application of a Student with a Disability, Appeal No. 20-087; Educ. Law § 3602- c[2][a]; [7][a]-[b] [providing that "[b]oards 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" and that the cost for services is recoverable from the district of residence, either directly with the consent of the parent for a district of location to share information or through the Commissioner of Education and the State Comptroller]).

While districts cannot deliver special education services called for by their educational programming in an unauthorized manner, due at least in part to the requirements that school officials and employees remain accountable under the statutory and regulatory mechanisms put in place by state and federal authorities, districts can be made to pay for a privately obtained parental placement, a process that is essentially the same as the federal process under IDEA. "Parents who are dissatisfied with their child's education can unilaterally change their child's placement during the pendency of review proceedings and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted], cert. denied sub nom., Paulino v. NYC Dep't of Educ., 2021 WL 78218 [U.S. Jan. 11, 2021], reh'g denied sub nom., De Paulino v. NYC Dep't of Educ., 2021 WL 850719 [U.S. Mar. 8, 2021]; see Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] ["Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).

Therefore, a dispute such as the instant matter should be examined using a Burlington/Carter unilateral placement framework because the administrative due process system was not designed to set rate-making policies for what has grown into a completely unregulated cottage industry of independent special education teachers that parents within the New York City Department of Education are increasingly reliant upon, an industry that is not authorized by the State in the first place. (See: Application of a Student with a Disability, Appeal No. 21-101.

Accordingly, Parent's request for DOE’s funding of SETSS for the 2022-2023 school year must be assessed under this framework; namely, having found that the DOE failed to offer or provide appropriate equitable services, the issue is whether the periods of SETSS obtained by Parent from the provider constituted an appropriate unilateral placement of Student such that the cost of the SETSS is reimbursable to Parent or, alternatively, should be directly paid by the DOE to the provider upon proof that the Parent has paid for the services or is legally obligated to pay and does not have the means to do so. “Parents are required to cooperate with the provision of services by producing a child for services properly arranged for by the district. The State Education Department only permits local educational agencies to contract for the use of teachers and personnel in private settings that have been approved by the Commissioner of Education, and upon such approval the State's rate setting unit routinely addresses the issue of establishing local rates that districts may pay such private entities (see http://www.oms.nysed.gov/rsu/).” See: Application of a Student with a Disability Appeal No. 21-101.

As a result, the question of rate is somewhat beside the point as the cost of the SETSS, under the Burlington-Carter test, must be fully reimbursed or directly funded by the DOE 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 costs and an inability to do so.” (See: Application of a Student with a Disability, Appeal No. 21-101.

Here, the appropriateness of the SETSS delivered to the student by the Provider is not in dispute in this matter as it is the same service recommended on the IESP in Parent Exhibit D as well as the FOFD in Parent’s Exhibit B.

Therefore, it is now necessary to determine equitable considerations. This is a necessary requirement under the “…IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see: Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]).” (See: Application of a Student with a Disability, Appeal No. 21-101.

“Among the factors that may warrant a reduction in tuition under equitable considerations is whether the frequency of the services or the rate for the services were excessive a (see: E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]). The IHO may consider evidence regarding whether the rate charged by the private agency was unreasonable or regarding any segregable costs charged by the private agency that exceed the level that the student required to receive a FAPE (see: L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100 [2d Cir. Jan. 19, 2017]).” (See: Application of a Student with a Disability, Appeal No. 21-101. The Provider in this matter testified by affidavit that the rate charged for a SETSS provider is $195 per hour. He further testified that This rate includes one-on-one supervision, educational resources and support, professional development and materials, employment taxes, administrative costs, and overhead costs (P-Ex. I).

Parent testified by affidavit that they signed a contract with the agency which obligates them to pay for the services in the event they do not prevail in the within decision. They further testified that paying for the services up front would pose an extreme financial hardship for them and they would be unable to pay for the services without the outside support of family and friends (P-Ex. H).

Here, the DOE did not argue that the requested hours were excessive or even inappropriate or that the rate requested is excessive or inappropriate to the facts of this case and particular student. Accordingly, there is no basis for your undersigned IHO to find either to be inappropriate or excessive. As previously noted, the services delivered by the provider were the exact same services mandated in the FOFD dated 07/12/2021 (P-Ex. B).

In the instant matter, the DOE recommended a program and subsequently an Impartial Hearing Officer Ordered the same program and the DOE did not locate providers, leaving Parent with no other option than to file a Due Process Complaint to seek services that have not only been recommended, but also previously Ordered in a previous school year. The DOE did not dispute this request, and thus is Ordered to provide and/or fund all recommended services.

ORDER:

Based upon the Findings of Fact and Conclusions of Law, it is hereby Ordered:

1. The New York City Department of Education has failed to provide a Free Appropriate Public Education for the 2022-2023 school year.

2. The New York City Department of Education is Ordered to provide and/or fund the services Ordered in the Findings of Fact and Decision dated 07/12/2021 (Special Education Teacher Support Services, Direct, Group, Yiddish, 5 periods per week in a separate location and Speech-Language Therapy, Individual, Yiddish, 2 times per week for 30 minutes in a separate location, flexible and Counseling services, Yiddish, individual, 1 time per week for 30 minutes in a separate location, flexible), at current market rates (informed by the experience (if any) of the district’s Implementation Unit), either by Related Services Authorization agreement with the provider directly, or by other direct payment to the provider, or by reimbursement of documented out-of-pocket payment by or on behalf of the family. Such rates to be capped by the lowest amount paid by this district to the same agency or provider for substantially comparable services during 2022-2023 unless the district has agreed to pay the same provider a higher amount for services to this specific

Student at any time during the past twelve months, and to take into account countervailing current market circumstances from March 16, 2020, forward.

3. ORDER: All other claims are dismissed for lack of evidence in the hearing record.

Jennifer Mazzei, Esq.

Impartial Hearing Officer

SO ORDERED

DATED: March 29, 2023

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 – PERSONALLY IDENTIFIABLE INFORMATION

REDACTED, a minor, by and through his parent, REDACTED v. New York City DOE, CSE

Region [REDACTED]

Student REDACTED

Parent REDACTED

Provider REDACTED

APPENDIX B – ADMITTED EXHIBITS

None

A. PARENT EVIDENCE: Number Letter Date Name of Document of Pages DPC 9/2/2022 6 pages

B. FOFD 7/12/2021 11 pages

C. TDN 9/2/2022 2 pages

D. IESP 3/11/2021 8 pages

E. Contract 7/12/2022 1 page

F. Progress Report 2/6/2023 4 pages

G. Provider Credentials 1/26/2023 1 page

H. Affidavit of Parent 3/16/2023 3 pages

I. Affidavit of REDACTED IHO EVIDENCE: NONE 3/20/2023 3 pages

Footnotes

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