NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 236526
Student’s Name: REDACTED
School District: REDACTED
Impartial Hearing Officer: Ronald Abraham
Date of Filing: September 8, 2022
Date of Hearing: December 12, 2022
Date of Decision: January 19, 2023
Names and Titles of Persons Who Appeared December 12, 2022
For the Student
REDACTED, Parent’s Attorney/Representative
REDACTED, Parent For the New York City Department of Education
No one appeared at the hearing on behalf of the DOE.
BACKGROUND
Student is a REDACTED-year-old child who is classified by the New York City Department of Education’s (DOE or District) Committee on Special Education (CSE) as a child with an Other Health Impairment.[1] The Student’s classification is not in dispute.
Parent alleges that the DOE failed to provide Student with a Free and Appropriate Public Education (FAPE) for the 2022-2023 school year and requests the following findings: 1) the DOE fund twelve (12) hours per week of special education itinerant services (SEIT) for the 2022-2023 school year, totaling four hundred eighty (480) hours, at a rate of $175.00 per hour; and 2) the DOE fund fourteen hundred (1400) hours of 1:1 paraprofessional services for the 2022-2023 school year, at a rate of $60.00 per hour.[2]
PROCEDURAL HISTORY
On September 8, 2022, Parent filed a due process complaint (DPC) against the DOE, on behalf of Student, under Case No. 236526, pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”), see 20 U.S.C. § 1415(f), and New York State Education Law §§ 4404(1). On November 21, 2022, I was appointed impartial hearing officer (“IHO”) for this case to determine the claims in the DPC and conduct an impartial hearing pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1). On November 28, 2022, a settlement conference was held. Subsequently, on December 12, 2022, the hearing on the merits was held.
At the hearing, Parent’s attorney submitted ten (10) exhibits, all of which were admitted into evidence. Parent’s attorney also presented two (2) witnesses via affidavit: 1) Educational Director (ED); and 2) Parent. The DOE did not appear at the hearing. A list of the documentary evidence in this proceeding is appended to this Order.
JURISDICTION
A decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200.
LEGAL FRAMEWORK
The IDEA directs that, in general, an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 NYCRR § 200.5(j)(4)(ii).
The 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 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 FAPE is further defined as “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 Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). Two purposes of the IDEA 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).
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).
However, under NY State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]) (emphasis added). This is commonly known in New York as the "dual enrollment" statute. "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]) (emphasis added). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602c[2][b][1]) (emphasis added). 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.). Thus, under State law, an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district for the purpose of receiving special education programming under Education Law § 3602-c, services for which a public school district may be held accountable through an impartial hearing.
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369- 70 [1985]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). Generally, a remedy for a deficiency in equitable services under State law should be similar to a remedy for deficient services under the IDEA.
FINDINGS OF FACT AND DECISION
I. FAPE
The IDEA provides that children with disabilities are entitled to a FAPE,[3] which consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive, written IEP.[4] The DOE offers a student a FAPE when: (a) it complies with the procedural requirements set forth in the IDEA; and (b) develops an IEP that is reasonably calculated to enable the student to receive educational benefits.[5] To meet its substantive FAPE obligations, the DOE 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.”[6]
As the DOE did not appear at the hearing, it failed to address or sustain its burden under the Education Law and failed to demonstrate it provided Student with a FAPE for the 2022-2023 school year. Accordingly, Parent is entitled to a presumption as to the truth of the asserted facts underlying Parent’s claims that are contained in the documentary evidence and testimony to the extent they are credible and are not contradicted by the hearing record. Based on that presumption, and the DOE’s failure to sustain its burden under the Education Law, I find the record establishes that the DOE failed to provide Student with a FAPE for the 2022-2023 school year.
II. SEIT
The hearing record establishes that Student is entitled to receive twelve (12) hours per week of SEIT and fourteen hundred (1400) hours of 1:1 paraprofessional services for the 2022-2023 school year. The testimony of Parent and ED, coupled with the documentary evidence, support this finding.
Parent
Parent testified, in relevant part, to the following: 1) Student has been diagnosed with Down Syndrome and presents with significant academic delays, as well as delays in many areas of development, including receptive, expressive, and pragmatic language, sensory processing, and oral motor weakness; 2) Student has physical difficulties including gross motor and fine motor difficulties, poor balance, a tendency to fall, and awkward gait; 3) Student experiences PICA, often putting objects into Student’s mouth and eating objects that are not considered food; 4) on January 24, 2022, Parent attended a meeting with the CSE to discuss an educational plan for Student; 5) at the January 24, 2022 meeting, the CSE recommended that Student receive SEIT (12 hours, 1:1, Yiddish), speech therapy (5x30 1:1, Yiddish), occupational therapy (4x30 1:1), physical therapy (5x30 1:1), as well as the services of a 1:1 health paraprofessional, all of which Parent agreed with; 6) two months later, on March 23, 2022, the CSE held a “Turning 5” meeting in order to review Student’s educational program for the 2022-2023 school year; 7) at the March 23, 2022 meeting, the CSE created an IESP for Student and recommended special education teacher support services (SETSS) as follows – (6 periods, group, Yiddish), occupational therapy (4x30 1:1), physical therapy (5x30 1:1), speech therapy (5x30 1:1, Yiddish), and a group health paraprofessional; 8) the March 2022 IEP is insufficient and inappropriate to meet the full spectrum of Student’s needs; 9) prior to the March 2022 “Turning 5” meeting, the District failed to evaluate Student in all areas of suspected disability and failed to conduct updated assessments of Student’s academic, cognitive, speech/language, social/emotional, behavioral, and sensory/motor needs; 10) the CSE also failed to conduct a social history update or a classroom observation; 11) the CSE has provided no justification or evaluations for the fifty percent reduction in services or the change from providing Student with a 1:1 paraprofessional to a group paraprofessional; 12) at the start of the 2022-2023 school year, Student was struggling academically as well as with Student’s language, sensory processing, and behavior and health needs; and 13) to help address Student’s needs, Parent arranged for Student to receive the originally recommended amount of SEIT and a 1:1 paraprofessional from Provider.[7]
ED
ED testified, in relevant part, to the following: 1) ED is employed as the Educational Director with Provider; 2) Provider provides students with SEIT and SETSS services; 3) ED is familiar with Student as Student receives twelve (12) hours of SEIT per week from Provider for the 2022-2023 school year; 4) Provider began providing Student with SEIT in September 2022 and will continue to do so throughout the 2022-2023 school year ending on June 30, 2023; 5) as a result of Student’s unique needs, Student requires a high level of individualized support; 6) Student has been responding to the interventions provided but requires continuous intervention for further success and retention; 7) despite Student’s improvements, Student continues to require twelve (12) hours per week of SEIT services to appropriately address Student’s academic and social/emotional needs, and to allow Student to make progress; 8) Student also requires a 1:1 paraprofessional throughout the school day due to Student’s significant academic, behavioral, and physical needs for Student’s safety and well-being; 9) a group paraprofessional, as recommended in Student’s March 2022 IEP would not be able to address Student’s needs appropriately and provide the 1:1 attention Student requires; and 10) the rate charged for Student’s SEIT services is $175.00 per hour and the rate for para services is $60.00.
The hearing record establishes that Student was not provided a FAPE for the 2022-2023 school year. Furthermore, the uncontroverted testimony of Parent and ED, and the documentary evidence, support a finding that Student was entitled to receive the services requested. Although SEIT services are "for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities" (8 NYCRR 200.16[i][3][ii] [emphasis added]), where SEIT services are at issue for a school-aged student, the substance of the services is, in essence, the provision to the student of educational services by a special education teacher who assists the student in addition to the classroom program.[8] Accordingly, for the purpose of ensuring Student receives a FAPE for the 2022-2023 school year, the services recommended in the January 2022 IEP shall, for purposes of implementation, be deemed the provision of 1:1 special education teacher support for Student.
ORDER
Based on the above Findings, it is hereby:
ORDERED, the DOE failed to provide Student with a FAPE for the 2022-2023 school year;
ORDERED, the DOE shall fund twelve (12) hours per week of special education teacher support services (SETSS) for the 2022-2023 school year, totaling four hundred eighty (480) hours, at a rate of $175.00 per hour; and
ORDERED, the DOE shall fund fourteen hundred (1400) hours of 1:1 paraprofessional services for the 2022-2023 school year, at a rate of $60.00 per hour.
So Ordered.
Ronald Abraham Dated: January19, 2023
Ronald Abraham (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.
PARENT’S EVIDENCE
Exhibit
Title
Date
Pages
A Impartial Hearing Request 09/08/2022 3
B Individual Education Program 01/24/2022 29
C Pendency Form 09/08/2022 2
D SETSS Log September 2022 3
E Enhanced Services Contract 06/28/2022 3
F Paraprofessional Log 12/05/2022 2
G Affidavit of Rate 12/05/2022 1
H Testimony of Parent 12/05/2022 2
I Progress Report 12/01/2022 2
J Affidavit of Educational Director 12/06/2022 3 APPENDIX Redacted Information
Term Used In FOFD
REDACTED
Student
REDACTED
Parent/Guardian
REDACTED
Parent’s Attorney
REDACTED
Educational Director
REDACTED
SEIT/SETSS Provider
REDACTED
School District
Footnotes
[1] Ex. A at 1.
[2] See Transcript at 12.
[3] U.S.C. § 1400 (d)(1)(A).
[4] C.F.R. § 300.13.
[5] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[6] 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).
[7] See Exs. E, G, and H.
[8] Application of a Student with a Disability, Appeal No. 20-163