New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 585030 - NYC: 236602

FINDINGS OF FACT AND DECISION

Case Number: 236602

Student’s Name: Redacted (“Student”)

Date of Birth: Redacted

School District: NYC DOE

Hearing Requested by: Redacted (“Parent”)

Request Date/Date Complaint Filed: 9/8/2022

Date(s) of Hearing: 1/26/2023

Actual Record Closed Date: 2/14/2023

Date of Decision: 2/15/2023

Hearing Officer: Daniel M. Hochbaum

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”) and the New York Education Law. The Parent filed this case on 9/8/2022. Ex. A:1.

Parent alleges that the Department of Education (“DOE”): (1) failed to offer appropriate special education services for the Student for the 2022-2023 school year when it failed to recommend 1:1 special educations services for the Student, and (2) failed to implement the related services in the Student’s Individualized Education Services Plan (“IESP”). Id. The Parent seeks a compensatory education award.

As discussed below, I find that the DOE failed to provide for 12-Month/Extended School Year (“ESY”) services and failed to develop an appropriate IESP for the Student, thereby denying the Student a free appropriate public education (“FAPE”) under the IDEA and equitable services under Section 3602-c of the New York Education Law for the 2022-2023 school year, and that the relief Parent seeks is appropriate compensatory relief. As a result of a partial settlement discussed more fully below, I need not address the issue of the failure to implement the related services in the Student’s IESP.

PROCEDURAL HISTORY

On 10/30/2022, the DOE appointed me to hear this case. On 1/26/2023, both parties appeared virtually for a hearing. The Parties explained that they resolved the Parent’s request for related services and, as a result, the Parent withdrew that claim. Tr. 11. At the hearing, the DOE delivered an opening statement, introduced 12 exhibits (Exhibits 1-12), did not call any witness on direct examination, and delivered a closing statement. Tr. 9, 14-15, 18, 71-72. The Parent delivered an opening statement, submitted Exhibits A-K, called three witnesses via testimony by affidavit (the Parent, the Director of Fiscal Special Services from the Service Agency, and the Administrative Supervisor from the Service Agency), and delivered a closing statement. Tr. 10-12, 15-17, 72-75. The DOE cross-examined the Director of Fiscal Special Services and the Administrative Supervisor. Tr. 26-46, 60-69. The Parent further requested that I issue an Order on Pendency, and the Parties made brief oral arguments on this issue. Tr. 12-14.

FINDINGS OF FACT

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

It is uncontested that the Student and Parent reside in New York City and the Student attends the Private School during the 2022-2023 school year. Ex. A. Furthermore, it is uncontested that the Private School is located within the geographic boundaries of the DOE.

The Student is redacted-year-old bilingual Yiddish-English speaking student. Ex. E:1. The Student has a variety of disability-based needs including cognitive weaknesses, difficulties with academics, social/emotional/behavioral challenges, and expressive language deficits. Ex I:1; E:1-3. On 3/15/2022, the Student’s Committee on Special Education (“CSE”) team met and classified him as a Student with a Speech or Language Impairment. Ex. 4:1.

During the 2021-2022 school year, the Student was a pre-school student with a disability who received 5 hours per week of Special Education Itinerant Teacher (“SEIT”) Services in a group of 2 pursuant to a 2020 IESP. Ex. B:16.

Prior to the 3/15/2022 CSE meeting, on 12/15/2021, the Student’s Provider (“the Provider”) developed a progress report about the Student’s then current functioning. Ex. 7:1. In the report, the Provider explained that the Student made progress including that he was “now able to summarize a story and repeat a story that was read to him in sequential order,” could identify opposites “such as cold/hot, tall/short, near/far,” and had the ability to follow 2-3 step instructions given 1:1 support. Ex. 7:1. Regarding math skills, the report stated that the Student could locate big and little objects and arrange them in order of size and learned to count orally until 5 with 1:1 correspondence. Id. In reading, the report stated that the Student was beginning to recognize some letters, could repeat words that rhyme, segment two syllable words into two, predict what an ending to a story may be, retell a simple story that was read many times to him, and name actions when looking at a picture. Id.

The report also detailed many continuing concerns. Regarding cognitive skills, the report stated that the Student was “lacking some of the cognitive skills necessary for him to function well in his class” and had difficulty following two step unrelated directions in the classroom. Ex. 7:2 The Provider also wrote that the Student struggled with learning categories. Id. Discussing math, the Provider stated that the Student was “unable to count with 1:1 correspondence past Six.” Id. Additionally, regarding reading, the Provider stated that the student displayed deficits in his reading skills including that he could only identify a few letters, that it was difficult for him to say the sound that a given letter makes, that he could not identify ending sounds of words, and that he was having difficulty retelling a story in the proper sequence. Id.

The report discussed various other learning needs related to other domains such as language skills, pragmatic skills, problem solving skills, and social development. Id at 2-3. The report “strongly recommended” that the Student continue to receive 1:1 SEIT services. Id. at 3-4.

As noted above, the CSE met on 3/15/2022 and developed an IESP for the 2022-2023 school year that did not include any special education services and instead, only included related services. Ex. 4:4-5. The Parent disagreed with two decisions of the CSE: (1) the decision not to provide any special education services (either in the form of SEIT or Special Education Teacher Support Services (“SETTS”)), and (2) the decision not to provide the Student with 12-month/ESY services. Ex. A:2.

The 3/15/2022 IESP does not explain the DOE’s decision to end the SETSS services for the Student. Ex. 4. On 4/8/2022, the DOE generated a Prior Written Notice (“PWN”). Ex. 5. The PWN stated that the CSE considered a 3/06/2020 Educational Evaluation Report” and 3/15/2022 Parent Interview in making its decision. Ex. 5:1. The PWN contains a section called “Explanation of Why the Action is Proposed or Refused” which states the following:

At the CSE meeting held on 03/15/2022, to which you were invited, the assessments and materials identified below were reviewed and discussed and it was determined that your child continues to meet the eligibility criteria for an educational disability as defined in Part 200 of the regulations of the New York State Commissioner of Education. You indicated that you were placing your child in a non-public school, at your own expense, and are seeking equitable services from the New York City Department of Education. Therefore an Individualized Education Services Program was developed recommending the special education services your child will receive.

Ex. 5:1. The PWN further states that the team considered one other program option for the Student, namely general education, but rejected that option because the parent stated that she was placing the Student in a non-public school and was seeking equitable services from the DOE. Id. at 2.

CONCLUSIONS OF LAW AND ANALYSIS

In this case, the Parent is seeking equitable services under Section 3602-c of the NY Education Law and 12-month services under the IDEA and state law. Because the standards differ slightly, I will address each separately.

Burden

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); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014).

FAPE

The IDEA provides that children with disabilities are entitled to a 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”). 20 U.S.C. § 1401(9). 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). In order 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, 137 S.Ct. 988, 999 (2017).

Dual Enrollment

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)(l)(A); Educ. Law § 4402(2)(a), (b)(2)). 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 C.F.R. § 300.137(a)). Under state law, however, parents who have privately enrolled their child in a nonpublic school may 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. Educ. Law § 3602-c(2). 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].” Educ. Law § 3602-c(2)(b)(l).

Here, the DOE has not carried its burden of showing that it complied with the procedural requirements of the IDEA or that it provided substantively equitable services.

• • Procedural Issues In the Due Process Complaint (“DPC”), the Parent alleges that that the DOE violated the procedural requirements by conducting a CSE meeting without the proper participants and by failing to consider the appropriate evaluative data when making decisions about the Student. I agree with the Parent on both issues.

The IDEA’s regulations state that “in matters alleging a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies— impeded the child’s right to a FAPE; significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent’s child; or caused a deprivation of educational benefit.” 34 C.F.R. § 300.513(a)(2)(i)-(iii). According to case law in this circuit, “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” R.E. v. N.Y.C. Dept of Educ., 694 F.3d 167, 190-91 (2d Cir. 2012). Here, there were not only multiple procedural violations, but they had a detrimental impact of the development of the Student’s services.

First, the Parent alleges that the 3/15/2022 CSE was “invalidly constituted” because “no one from the CSE had ever worked with the student” and they had “no independent basis of knowledge of the student’s needs or deficits.” Ex. A:1. The IDEA states, that among others, the IEP team must include “[n]ot less than one special education teacher of the child, or where appropriate, not less than one special education provider of the child.” 34 C.F.R. § 300.321 (emphasis added). According to the DOE’s evidence in this case, the CSE team included a Related Service Provider/Special Education Teacher, a District Representative, and School Psychologist (who was the same person as the District Representative). Ex. 4:9. The DOE did not present any information to suggest that the Related Service Provider/Special Education Teacher was a teacher of the child, and according to the name on the document, was not the Provider from the service agency who completed the 12/15/2022 progress report. Id. Additionally, the DOE did not present any evidence that it invited the Provider to the meeting and that she did not attend.

The DOE’s failure to include the Provider was significant because the Provider recommended that the Student continue to receive special education services, and by not including her in the meeting, the other team members could not ask the Provider questions about the Student’s learning and the basis for the recommendation. Additionally, although the Parent alleged that no one from the CSE had ever worked with the Student, the DOE did not present any evidence to rebut that allegation. It is unreasonable for a school district to plan out an entire year’s education for a Student without consulting a single person with firsthand knowledge of the Student and experience teaching the Student, which is why the IDEA requires a teacher “of the child” to be present. 34 C.F.R. § 300.321.

Second, the Parent alleges that the 3/15/2022 CSE team “failed to consider the appropriate evaluative data” when making the decision to not provide special education services to the Student. Ex. A:1. The DOE’s own PWN shows that it did not consult any evaluation since the 2020 testing. Ex. 5:1. Likewise, the DOE did not present any evidence that the CSE team considered the Provider’s 12/15/2021 progress report. In fact, the PWN says that the DOE considered two documents – the 2020 evaluation and a 2022 Parent interview – but did not consider the 12/15/2021 progress report. Id. The DOE cannot simply ignore the most recent data about the Student’s needs and progress when making decisions about services, especially when the report containing the data explicitly recommends continuation of a service. As a result, the DOE’s failure to consider the Provider’s progress report was a significant procedural violation that both impeded the Student’s right to a FAPE and significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of equitable services to the Student.

Although the Parent only alleged the above two procedural violations, the DOE’s own evidence suggested that it committed a third procedural violation when it only considered general education for the Student and did not consider SEIT or SETSS. As noted above, the PWN explicitly stated that it considered only one option – general education – for the Student. Ex. 5:2. By refusing to consider other options, the DOE impeded the Student’s right to equitable services and deprived him of the educational benefit that either SEIT or SETSS might have provided.

• • Substantive Issues The DOE also denied the Student equitable services under Section 3602-c by failing to provide the Student with 5 hours of SETSS services. At hearing, the DOE argued that the CSE team determined that the Student had made sufficient progress such that he could receive equitable services with only related services and without any special education services either via SEIT or SETSS. Tr. 9. However, the DOE did not carry its burden on this issue, and the information in the record suggested that the Student continued to need 5 hours of SEIT or SETSS to progress.

The DOE failed to carry its burden when it did not present any evidence that the Student had made sufficient progress such that he no longer required SEIT or SETSS services. To be sure, the evidence showed that the Student had made progress with the SEIT intervention. As discussed above, the Provider’s progress report stated that the Student had made progress and was, for example, now able to summarize a story and repeat a story that was read to him in sequential order, could identify opposites “such as cold/hot, tall/short, near/far,” and had the ability to follow 2-3 step instructions given 1:1 support. Ex. 7:1. The report also detailed various other math and reading skills that the Student had developed. Id. However, the DOE did not present any evidence that contextualized this progress. In other words, without evidence, I have no information to determine that this was “sufficient” progress such that the Student no longer needed SEIT or SETSS. Likewise, the DOE did not present any evidence that the Student could continue to progress without SEIT or SETSS. As such, the DOE did not carry its burden.

At hearing, the DOE argued that a Student under Section 3602-c has no right to the continuation of services from year to year which is true but does not help it meet its burden. Tr. 9, 71-72 No student, whether under the IDEA or Section 3602-c, has an automatic right to keep the same services as the year before (except under the pendency/stay put provisions which the Parent may invoke when filing a Due Process hearing). Indeed, the IDEA requires the DOE to review a student’s needs annually and develop a new IEP (34 C.F.R. § 300.324(b)(1)(i)), and the NY Education Law requires the same when the Parent indicates that they plan to place the Student in a nonpublic school (NY Educ. Law 3602-c(b)(1)). In this case, the DOE did not present a single piece of information to suggest that the Student no longer needed SEIT or SETSS, let alone any information about how many hours the Student needed in order to continue to progress. While it is true that the Student did not have a right to simply continue receiving 5 hours per week of SEIT, the Student did have a right to an individualized determination about the services he would receive for the 2022-2023 school year as well as a right to services that would enable him to progress. Id. (“the committee on special education of the school district of location…shall develop an individualized education service program for the student based on the student’s individual needs in the same manner and with the same contents as an individualized education program”). The DOE did not prove that it made an individualized determination or that its offer of zero hours of SEIT or SETSS was appropriate.

By contrast, the evidence in the record suggested that the Student did in fact continue to need SEIT or SETSS. As discussed above, the Provider’s progress report detailed many cognitive, math, and reading skills that the Student was struggling to learn. Ex. 7. Additionally, the report explicitly recommended 1:1 special education support for the Student, and the DOE failed to rebut this with any documentary evidence or witness testimony. Ex. 7:3-4.

At hearing, the DOE also argued that the Parent’s requested relief should be denied because the Student was receiving SEIT services but then turned five years old, and SEIT services are no longer available after a Student turns five years old. First, the Parent’s DPC did not request SEIT services. Instead, it stated that “the parent requests the continuation of bilingual Yiddish 1:1 special education services (5x60).” Ex. A:2 (emphasis added). Second, the DOE suggested that there is a distinction between SEIT and SETSS (beyond age) but did not present any evidence regarding the difference and did not elicit any testimony from the Parent’s witnesses about what the difference is.^[1] As such, the DOE did not carry its burden of showing that the Parent’s request should be denied.

For the reasons discussed above, I find that the DOE did not carry its burden of showing that it provided the Student with equitable services for the 2022-2023 school year.

12-Month Services/ESY The Parent also alleged that the DOE denied the Student a FAPE when it failed to provide the Student with 12-month services/ESY services, and I find that the DOE violated IDEA’s procedures and failed to carry its burden on whether the Student needed these services to receive a substantive FAPE. Ex. A:2.

According to the IDEA’s regulations, ESY services are:

special education and related services that –

(1) Are provided to a child with a disability –

(i) Beyond the normal school year of the public agency; (ii) In accordance with the child’s IEP; and

(iii) At no cost to the parents of the child; and

(2) Meet the standards of the SEA.

34 C.F.R. § 300.106. ESY services must be provided “only if a child’s IEP Team determines, on an individual basis, in accordance with §§ 300.320 through 300.324, that the services are necessary for the provision of FAPE to the child.” Id.

While students who attend nonpublic schools are not entitled to services during the summer via an IESP pursuant to Section 3602-c, there is nothing that relieves the DOE of the obligation to create an IEP for a student for the summer if the student requires ESY to receive a FAPE. According to guidance from the New York State Education Department, Section 3602-c does not require services to be provided to students with disabilities during the summer. See 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 (Sept. 2007) available at https://p12.nysed.gov/specialed/publications/policy/documents/chapter-378-laws-2007-guidance-on-nonpublic-placements.pdf. According to this guidance, “[t]he definition of ‘services’ in section 3602-c(1)(a) of the Education Law is limited to services provided in programs operated during the course of the regular school year and does not apply to services provided in summer programs.” Id. However, section 3602-c is a state law that provides supplemental rights to a specific set of students and does not take away the rights they have under federal law. If a student may be in need of ESY services, the DOE should make an individualized determination about that need and, if “necessary to provide FAPE,” offer an IEP to the student in a public setting for the summer. 34 C.F.R. § 300.106. A parent can then choose to have their child participate in the ESY services or not.

In this case, the DOE violated the IDEA’s procedures when it did not consider ESY services. There is no evidence in the record that the DOE considered whether the Student required ESY services during the summer of 2022. At hearing, the DOE did not present any evidence that it convened an IEP meeting for the student to consider the issue, nor did the 4/8/2022 PWN discuss whether the Student needed ESY services let alone whether the team even considered the issue. Ex. 5:1. The DOE was not relieved of its obligation to consider whether the Student needed ESY services just because the Parent “indicated that [she was] placing [her] child in a non-public school…and [] seeking equitable services” for the 10-month school year. Ex. 5:1. The DOE’s actions were a procedural violation in that they significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE. 34 C.F.R. § 300.513(a)(2). The DOE’s actions also caused a deprivation of the educational benefit the Student might have received had he received ESY. Id.

The DOE also failed to carry its burden on the question of whether the Student needed ESY to receive a substantive FAPE. In New York, “[g]enerally, a student is eligible for a 12-month school year service or program ‘when the period of review or reteaching required to recoup the skill or knowledge level attained by the end of the prior school year is beyond the time ordinarily reserved for that purpose at the beginning of the school year.’” Application of a Student with a Disability, Appeal No. 22-112 (citing “Extended School Year Programs and Services Questions and Answers,” VESID Mem. (Feb. 2006), available at http://www.p12.nysed.gov/specialed/applications/ESY/2014-QA.pdf). Again, the DOE did not introduce any evidence that the Student would not face these regression and recoupment issues. By not introducing any evidence on the issue, the DOE did not carry its burden.

Compensatory Relief The remedy for a school district’s failure to provide a FAPE under the IDEA or appropriate equitable services under Education Law § 3602-c is compensatory services. See Application of a Student with a Disability, Appeal No. 20-023, citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 (D.Conn. 2017). Under the IDEA, courts can “grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA (see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002)), “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme, 790 F.3d at 454.

A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time, and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. Id. Compensatory education can serve as a “replacement of educational services the child should have received in the first place", and any award “should aim to place disabled children in the same position they would have occupied but for the school district’s violations of IDEA[.]” Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that “[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act”).

Compensatory education awards may include payment for out-of-pocket educational expenses incurred by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate remedy. Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-79 (7th Cir. 2015). Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers. Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 (D. Minn. 2022), citing Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2019).

The DOE is required under the due process procedures set forth in New York state law to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the Student in the position that he would have been but for the denial of a FAPE. The DOE had an opportunity during the impartial hearing to set forth its position regarding the appropriate compensatory education remedy. The DOE argued that the Student was not entitled to any relief in this case.

In light of the violations in this case, a compensatory award covering the entire 12-month school year is appropriate. Considering a 46-week school year, the Student should have received 230 hours of SETSS (5 sessions, one hour in length, for 46 weeks). The Director of Fiscal Special Services testified that the Agency’s rate for SETSS services is $195 per hour. Ex. J:1. Although the DOE cross-examined this witness regarding the basis for the rate, the DOE did not ultimately argue that I should order a reduced hourly rate. Tr. 71-72. The Director of Fiscal Special Services’ testimony indicated that a majority of the $195 is spent on overhead (including payroll taxes). Tr. 65-69. However, without any other evidence to contextualize whether this agency’s ratio of overhead to provider salary is out of line with the industry, I find that an hourly rate of $195 is appropriate and award that rate for the compensatory services outlined below.

PENDENCY

I must also address Pendency/“Stay-Put” because the Parent raised the matter in their DPC, but the DOE did not implement the Student’s Pendency/Stay Put services immediately upon the filing of the DPC. As a result, the Parent’s counsel sought an order at the hearing on the merits. Tr. 11-12. The Parent asserts that pendency rests in the 4/6/2020 IESP. Ex. A:2.

The DOE argued that because the Student was parentally placed in a nonpublic school and was seeking services under NY Educ. Law 3602-c, the Student was not entitled to pendency. Tr. 12-13. The DOE made two specific arguments concerning pendency: (1) that Section 3602-c does not allow a parent to file a claim regarding implementation of services and, if a parent cannot file a claim, there is no legal dispute during which a student should receive pendency, and (2) that Section 3602-c requires a parent to request services year after year and thus there is no entitlement that the services continue from year to year. Tr. 12-13.

The IDEA and the New York State Education Law require that a student remain in their then current educational placement, unless the student’s parent(s) 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); NY Educ. Law §§ 4404(4), 4410(7)(c); 34 C.F.R. § 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).

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. See Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982); see also 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).

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:

(1) the placement described in the student’s most recently implemented IEP;

(2) the operative placement actually functioning at the time when the due process proceeding was commenced; or

(3) the placement at the time of the previously implemented IEP.

See Dervishi v. Stamford Bd. of Educ., 653 Fed. App’x 55, 57-58 (2d Cir. June 27, 2016), quoting Mackey, 386 F.3d at 163; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 (2d Cir. 2014) (holding that the pendency provision “requires a school district to continue funding whatever educational placement was last agreed upon for the child”); see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 (2d Cir. 2015) (holding that a student’s entitlement to stay-put arises when a due process complaint notice is filed); Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 (3d Cir. 1996); Letter to Baugh, 211 IDELR 481 (OSEP 1987). A prior unappealed IHO decision may also 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).

Furthermore, the Second Circuit has stated that educational placement means “the general type of educational program in which the child is placed” Concerned Parents v. N.Y. City Bd. of Educ., 629 F.2d 751, 753-756 (2d Cir. 1980), and that the pendency provision “does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers” (T.M., 752 F.3d at 171). However, if there is an agreement between the parties on the student’s educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student’s then-current educational placement. Bd. of Educ. v. Schutz, 290 F.3d 476, 483-84 (2d Cir. 2002); Evans v. Board of Educ., 921 F. Supp. 1184, 1189 n.3 (S.D.N.Y. 1996); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 (S.D.N.Y. 2000), aff’d, 297 F.3d 195 (2d Cir. 2002); see also Letter to Hampden, 49 IDELR 197 (OSEP 2007).

I reject the DOE’s argument that a parent does not have the right to file a claim regarding the implementation of an IESP. According to guidance from NYSED, “[a] parent of a student who is a NYS resident 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 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 (Sept. 2007) available at https://p12.nysed.gov/specialed/publications/policy/documents/chapter-378-laws-2007-guidance-on-nonpublic-placements.pdf (emphasis added). Therefore, the Parent had a right to initiate this hearing.

I also reject the DOE’s argument that there is no entitlement that the services continue from year to year under Section 3602-c as it does not apply to the factual scenario of this case. In this case, the Student’s last special education program was the program in the 4/6/2020 CPSE IEP. Ex. B. There was no evidence that the DOE developed any other IEP or IESP from 4/6/2020 until it developed the 3/15/2022 IESP that the Parent is challenging in this case. Ex. B; Ex. 4. As such, the DOE’s argument that the Parent cannot rely on an IESP as the basis for pendency does not match the facts of this case because the Parent is relying on an IEP, not an IESP, as the basis for pendency. Ex. A:2.

Nevertheless, I disagree with the DOE’s broader argument that pendency does not apply in cases in which the Parent seeks equitable services under Section 3602-c. New York Education Law § 4404(4) explicitly contains a provision concerning pendency. Section 3602-c(2)(c) specifically envisions the parent’s right to file due process complaints and be entitled to the same protections as those listed in NY Educ. Law § 4404, including the right to pendency. NY Educ. Law § 3602-c(2)(b)(l) (“Review of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter”).

In this case, I find that pendency rests in the 4/6/2020 IEP which is the Student’s most recently implemented IEP. Ex. B. Dervishi, 653 Fed. App’x at 57-58. The 4/6/2020 IEP contained the following services:

• • Special Education Itinerant Teacher Services (“SEIT”), in Yiddish, Group of 2, 5 hours per week
• • Speech-Language Therapy, in Yiddish, Group of 2, 2 times per week for 30 minutes
• • Occupational Therapy, Individual service (1:1), 2 times per week for 30 minutes
• • Physical Therapy, Individual service (1:1), 2 times per week for 30 minutes Ex. B:16. As outlined below, I order the DOE to implement the program retroactive to 9/8/2022 (the date of the filing of the DPC) and continuing throughout the duration of this litigation. Furthermore, I find no substantive difference between SEIT services and SETSS as both are specially designed instruction provided by a certified special education teacher. To provide continuity of the Student’s program despite his move from pre-school age to elementary school age, I order the DOE to provide SETSS in place of SEIT.

PENDENCY ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

• • The DOE shall, retroactive to the filing of the Parent’s Due Process Complaint and during the pendency of these proceedings, provide the following services:
• • Special Education Teacher Support Services (“SETSS”), in Yiddish, Group of 2, 5 hours per week
• • Speech-Language Therapy, in Yiddish, Group of 2, 2 times per week for 30 minutes
• • Occupational Therapy, Individual service (1:1), 2 times per week for 30 minutes
• • Physical Therapy, Individual service (1:1), 2 times per week for 30 minutes

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

• • The DOE denied the Student a FAPE by failing to provide 12-month services for the 2022-2023 school year.
• • The DOE denied the Student special education programs and services on an equitable basis pursuant to NY Educ. Law § 3602-c by failing to provide 5 hours of 1:1 SETSS for the 2022-2023 school year.
• • The DOE shall, within 3 days of this order, assign an individual from its Impartial Hearing Order Implementation Unit (IHOIU) to serve as a contact person for the Parent regarding the implementation of this Order. The IHOIU contact person shall provide their name, direct phone number, and email address to the Parent and the Parent’s attorney within 3 days of the date of this order. The contact person shall respond to any inquiry by the Parent (or their attorney) concerning the implementation of this order within 2 business days.
• • The DOE shall provide the Student with a bank of 230 periods of 1:1 SETSS to be provided by a licensed special education teacher of the Parent’s choosing. The provider shall be paid a rate of no more than $195 per hour. The provider may bill against the bank for any services provided from 7/1/2022 to 6/30/2024 (after which the services shall expire).
• • The DOE shall pay the provider(s) for the services in 4, above, within 15 days of receipt of both:
• • Session notes for each session indicating the specific provider’s name, date of service, start and end time of each session, a paragraph describing the skills taught to the Student during each session, and measurable data/information regarding the Student’s progress during the session.
• • An invoice for the services provided and accompanying affidavit attesting that the services billed for were provided.
• • If the Parent requests assistance finding a provider to provide the above services at any time, the DOE must locate 3 providers who are ready, willing, and able to begin providing the services to the Student, according to the terms of this order. If the Parent presents a good faith basis for rejecting the 3 providers, the DOE must locate 2 additional providers from which the Parent may choose. The DOE shall not be required to identify more than 5 providers in any given 6-month period. Nothing stated here prevents the Parent from locating and utilizing a provider of the Parent’s own choosing.

SO ORDERED.

DATED: 2/15/2023

/s Daniel M. Hochbaum Daniel M. Hochbaum

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.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Exhibit

Document

Date

Pages

Due Process Complaint with Receipt

09-08-2022

03

CPSE IEP

04-6-2020

19

Notarized Affidavit

12-26-2022

01

Provider’s invoices

12-21-2022

02

Progress Report

01-09-2023

04

Taxes

Undated

02

Ten Day Notice

08-29-2022

01

Provider’s Certification

Various dates

02

Parent Testimony Affidavit

01-24-2023

03

Affidavit in lieu of Direct Testimony of Director of Fiscal Special Services

01-24-2023

02

Affidavit in lieu of Direct Testimony of Administrative Supervisor

01-24-2023

03

DOE EXHIBITS

Exhibit

Document

Date

Pages

TDN

August 29, 2022

1

Response to TDN

October 26, 2021

1

DPC

September 8, 2022

3

IESP

March 15, 2022

9

PWN Placement

April 8, 2022

5

PWN Reevaluation

April 8, 2022

3

Student Progress Report

December 15, 2021

18

Evaluation Company – Various Evaluations

February 18, 2020

23

IEP

April 6, 2020

19

IEP – Student Summary

April 6, 2020

1

IEP – Program and Services

April 6, 2020

8

IEP – Misc. Scanned Documents

April 6, 2020

5

IHO EXHIBITS

Exhibit

Document

Date

Pages

N/A

N/A

N/A

N/A

Footnotes

[1] According to NYSED, SEIT services (called SEIS by state law) means “specially designed instruction provided by a certified special education teacher of an approved program on an itinerant basis (which means the special education teacher travels to the site of the child care setting where the child is attending during the day, such as an approved or licensed prekindergarten or Head Start program, a hospital, a State facility, or another child care location1 selected by the parent or home under certain circumstances).” See Special Education Itinerant Services for Preschool Children with Disabilities available at http://www.nysed.gov/special-education/special-education-itinerant-services-preschool-children-disabilities.