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Case Number: 585267 – NYC: 236806
FINDINGS OF FACT AND DECISION
Student’s Name: REDACTED
District of Private
School Location: N.Y.C. Dept. of Ed., District # [Redacted]
Impartial Hearing Officer: Elana Soleimani
Date of Filing: 9/9/2022
Hearing Requested by: Parent
Date of Hearing: 2/13/2023
Record Close Date: 03/15/2023
Date of Decision: 03/15/2023
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 13, 2023
For the Student:
REDACTED Esq., Attorney and REDACTED, Law Clerk
REDACTED, Parent Student
REDACTED, Witness
For the Department of Education:
REDACTED, Esq., Attorney
BACKGROUND
The Parent, through counsel, filed a Due Process Complaint(“DPC”) on or about September 9, 2022. [1]
Parent alleges that the Department of Education (“DOE”) failed to implement an individualized education service plan (“IESP”) for the 2022-2023 school year. 2 The Parent seeks a compensatory education award consisting of 6(six) hours of special education itinerant teacher services (SEIT) or special education teacher select services (SETSS), one on one or two on one, bilingual in Yiddish. Parent is also seeking an independent educational evaluation (IEE) for occupational therapy (OT).
In light of the foregoing and as more fully discussed below, I find that the DOE failed to implement the IEP [3], thereby denying the Student access to equitable services and a denial of FAPE (free and appropriate public education) for the 2021-2022 and 2022-2023 school years, and that the relief Parent seeks, implementation of the IEP or funding for the provision of services directly to the Student consistent with the IEP, an increase in special education services and an independent educational evaluation (IEE) in occupational therapy (OT)are appropriate relief.
PROCEDURAL HISTORY
I was appointed on November [2], 2022. A settlement conference before an impartial hearing officer not appointed to adjudicate this action was held virtually on November 9, 2022. On February 13, 2023, both parties appeared virtually for a hearing. A list of the exhibits is included at the end of the decision.
JURISDICTION
This due process hearing was held, and a decision in this matter is being rendered according to the IDEA and the New York State Education Law, together with their implementing regulations. [4] District’s case:
The District’s Representative gave a brief opening statement. The District asserted that Student is classified as a student with emotional disturbance. The District’s Representative entered 1 Exhibit into evidence with no objection from the Parent. (Hereinafter referred to as D-1)
The last agreed upon IEP is dated March 3, 2021. The IEP recommended 3 hours of bilingual SEIT (special education itinerant teacher) services per week. Parent is seeking an increase to 6 (six) hours per week of SEIT services. The evidence will demonstrate that the Student is not entitled to the requested relief.
The District failed to provide witness testimony or documentary evidence as to FAPE. Nor did the District present a prong 1 case with regards to a FAPE, although the District’s Representative did cross-examine the Parent’s witness and Parent herself.
In closing, the District asserted that the Student is not entitled to (6) six hours of SEIT services per week, or occupational therapy and the request for compensatory education by Parent should be denied. The DOE argued that the Parent failed to prove that the Parent requested the special education services prior to June 1 and therefore the DOE is not obligated to provide such services for the Student.
Parent’s case:
The Parent’s Representative made a short opening statement setting out, inter alia, the case the Parent intended to put on and the conclusions that the evidence would support, specifically that the findings sought in the Due Process Complaint (“DPC”) would be appropriate and support the relief contained therein. The Parent’s Representative entered Exhibits A-L into evidence with no objection from the District. (Hereinafter referred to as P-A, P-B, etc...)
The Parent’s Representative asserted that Student presents with significant delays in the areas of cognitive functioning, social/emotional skills, fine motor and sensory motor skills and expressive language skills. In addition, Student exhibits notable attentional deficits and maladaptive behavior, such as impulsivity, outbursts, and frequent tantrums. These behavioral needs significantly impact Student’s classroom performance, and he requires consistent prompting and individualized attention to stay on task and make academic and educational progress. Student’s needs have increased as he ages and classroom performance becomes more challenging, as a result he is also in need of increased services and the need for an evaluation to determine whether occupational therapy would be appropriate. Accordingly, Parent seeks an award for an independent educational evaluation for occupational therapy as well as an increase in the special education one-to-one or one-to-two services and reimbursement for compensatory education services for the 2021-2022 school year.
The Parent’s representative presented the testimony of two witnesses in support of the Parent’s case, the service Provider and the Student’s Mother (Parent or Mother).
In closing, Parents’ representative asserted that the DOE argued for the first time at the hearing that parent did not ask for services and therefore no IEP meeting was convened. The DOE had ample time and even submitted a Due Process Response (DPR) which was silent on this issue. Additionally, the Student in this matter was not receiving services under an ISEP but rather via IEP where the DOE recommended three hours per week of SEIT services. The parent disagreed with any provisions of an IESP and continued the last agreed upon IEP services. The DOE was responsible for reconvening under that IEP to provide a free and appropriate public education (FAPE) but failed to do so. Since the DOE failed to provide any services for the 2021-2022 school year, Parent seeks reimbursement for those services as Student required the services to receive an appropriate education. For the 2022-2023 school year Student was receiving services through Pendency [5]. Parent is seeking an increase in services for the 2022-2023 school year. As indicated through documentary evidence and witness testimony Student has increased needs. The Department failed to respond to the Parent’s requests. Lastly, Parent seeks an IEE in occupational therapy to determine if occupational therapy would benefit the Student.
CONCLUSIONS OF LAW
a) The IDEA (20 U.S.C. §1400-§1482) and New York State Education Law § 4404 The IDEA provides that children with disabilities are entitled to a FAPE, consisting of specialized education and related services designed to meet a student’s unique needs,[6] provided in conformity with a comprehensive written IEP. [7]
The mandates of the IDEA are intended to prepare a student for further education, employment, and independent living and ensure that the rights of students with disabilities and parents of such students are protected with respect to the IEP’s creation and implementation. 8 When an IEP is developed within the State of New York, the district must comply with both the procedural requirements mandated by the IDEA and the Education Law of the State of New York, 9 i.e., that its recommended placement and program are reasonably calculated to enable the student to receive educational benefits. 10 This requires that the IEP be comprehensive, consisting of specialized education and related services designed to meet a student’s unique needs. 11 b) New York State Education Law § 3602-c, et seq. (“The Dual Enrollment Statute”) and § 4404
If a student is parentally enrolled in a nonpublic school, the IDEA does not confer the same entitlement to special education programs and/or related services as if they were enrolled in a public school. 12 In that instance, the IDEA mandates that the school districts must participate in a consultation process to make special education services available to parentally-placed private school children, 13 and authorizes the allocation of “a proportional share of federal IDEA funds to provide special education and related services” to these children with disabilities. 14 These services are commonly referred to as “equitable participation,” and are distinct from the FAPE requirement.[15] In New York, the district is statutorily mandated to offer suitable
8 20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982] 9 See 20 U.S.C. § 1412 [a][1][A] and Education Law §§ 4402 [2] [a], [b][2]
10 Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-207 [1982]
11 34 C.F.R. § 300.13.
12 See 34 C.F.R. § 300.137 (a)
13 See 34 C.F.R. § 300.134.
14 E.T. and D.T. ex rel. E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at 10 (S.D.N.Y. 2012) (citing J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 665 [S.D.N.Y. 2011] [internal quotation marks omitted]); see also 20 U.S.C. § 1412 [a] [10] [A] [i][ii]; 34 C.F.R. §§ 300.131 – 300.133 education opportunities on an equitable basis based on the individual needs of the nonpublic school student[16] as follows, Boards of education of all school districts of the state shall furnish services to students [with disabilities] who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent or person in parental relation of any such student”… [17]
The committee on special education shall 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. [18]
Offering services on “equitable basis” means that “special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district . . . and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program.”[19] The purpose of the statute is “to allow private school students with disabilities equal access to the full array of specialized public school programs”.[20] As such, a “nonpublic student may not be denied services that a public school student would receive based solely upon his or her status as a nonpublic [school] student.” 21 Therefore, once such a request is received, it must “be reviewed by the committee on special education of the school district of location, which shall develop an individualized education service program [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an individualized education program.” 22
If a dispute arises between a parent and a school district over the provision of services under an IESP, a “[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.[23] Where it is determined that IESP services were not appropriately provided, the New York State Education Law permits an IHO to redress the violation under the same broad authority available for violations of the IDEA.[24] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act,”[25] and damage awards are not available under the IDEA.[26] Thus, the tribunal “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” [27]
The foregoing criteria are essential in fulfilling the legislative intent of the IDEA that through “personalized instruction with sufficient support services,” the student will derive an educational benefit from that instruction so as “to achieve passing marks and advance grade to grade,”[28] and “enable the [student] to be involved in and make progress in the general education curriculum.”[29] This personalized instruction “must be appropriately ambitious in light of [the student’s] circumstances.”[30] An IESP must also open the door of public education to a disabled child in a meaningful way such that it is like produce progress, “not regression,” or only “trivial advancement.” [31]
22 Education Law § 3602-c (2) (b) (1); Matter of Board of Educ. Of Bay Shore Union Free School Dist. V. Thomas K., 14 N.Y.3d
293
c) Enhanced Rates for Related Services Here, the parent seeks reimbursement for and to continue SETSS/SEIT services at an enhanced rate. However, the IDEA did not contemplate or address such disputes arising from the request for an “enhanced rate” for service providers. As a result, neither the IDEA nor New York State Education Law provides a legal framework within the due process system to afford an equitable remedy to students and parents to resolve enhanced rate disputes.[32] Adding to this unaddressed anomaly in the statute is the fact that here, the enhanced rate for related services is being determined within the context of an IESP, the terms of which are a question of New York State law, not federal law.[33] Accordingly, the process to challenge an IESP is governed by Education Law § 3602-c [2][b][1] which provides that a review of an IESP may only be sought under Education Law § 4404.[34] There is also little, if any, judicial case law on the issue of enhanced rates for services.
As a result, the New York State Review Office (“SRO”) has addressed this question on numerous occasions by looking to the Burlington/Carter tuition reimbursement approach for guidance.[35] Nevertheless, the SRO held that the burden of proof and persuasion remains with the district because to hold otherwise [in the absence of statutory authority or appellate case law], would result in impermissibly shifting to the parent the district’s burden to provide and fund the statutorily mandated services.[36] There is no provision or exception in Education Law § 4404 that shifts the burden to the parent in enhanced rate disputes.[37] The only exception that applies is when a parent seeking tuition reimbursement for a unilateral placement in a private school. 38 Therefore, an IHO and SRO are bound by the plain language of Education Law § 4404 [5] which defines tuition as “instructional services” as defined by the commissioner. This definition does not include the term “related services.” The commissioner has specifically defined related services as “developmental, corrective, and other supportive services as are required to assist a student with a disability,” 39 without reference to “instructional services” or the like.
The SRO has held that to meet its burden of proof in an enhanced rate dispute, the district must establish that 1) it did not violate the procedural requirements of the IDEA; 40 and 2) that the rates for the services as per an IESP are excessive or otherwise should be reduced, 41 by proffering evidence as to what it believes is an appropriate market rate. 42 Then borrowing from Burlington/Carter, the SRO has held that although the burdens of proof and persuasion do not shift to the parent under this scenario, the parent is not “disavowed” of the need to come forward with some evidence and establish that the rate requested is reasonable and appropriate in light of the provider’s certification, experience and education. 43 It has also been determined that it is not unreasonable for the parent to demonstrate a contractual obligation to pay the difference between the scheduled rate for the services and the rate being charged. 44 The contract need not be in writing, but the parent must establish the elements of the oral contract for the services to prevail, 45 and establish that the requested rate was the actual rate charged by an agency [emphasis added] 46 as well as verify the number of service hours. 47
It would be against public policy to either reimburse a parent without proof of payment or directly fund the services when the parent has no obligation to pay for the services. This would Education Law § 4401 [5] defines “tuition” as “the per pupil cost of all instructional services, supplies and equipment, the operation of instructional facilities and allocable debt service for the instructional facilities, as determined by the commissioner” [emphasis added]. 38 Id.
3939 8 N.Y.C.R.R. §200.5 [qq]
40 See, Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 206-07 [1982]
41 Application of a Student with a Disability, Appeal #21-138 [08/11/21], p.9
42 Application of a Student with a Disability, Appeal #21-183 [10/29/21], p.19
43 Application of a Student with a Disability, Appeal #20-140 [09/23/20], p.14
44 Application of a Student with a Disability, Appeal #20-140 [09/23/20], p.14
45 Application of a Student with a Disability, Appeal #20-115 [09/23/20], p.10
46 Application of a Student with a Disability, Appeal #20-140 [09/23/20], p.14
47 Application of a Student with a Disability, Appeal #21-245 [02/04/22], p.9 be tantamount to unjust enrichment not only in favor of the parent, but also the provider who may be charging an excessive rate that they would not otherwise be qualified to charge. Although the judicial case law is silent on this issue, the State Review Office has denied direct funding and/or reimbursement absent sufficient proof by parents.[48] However, this does not relieve the district from its initial burden of proof.
In the absence of clear guidance, this IHO looks to traditional contract law for further guidance. The district, to prevail on defending an enhanced rate claim, needs to establish that the parent or agency was enriched at the district’s expense and that the reimbursement or payment would be against “equity and good conscience” to grant the requested enhanced rate. [49]
In the alternative, the district may also prevail if it initially establishes that the parent failed to request services on or before the first day of June preceding the start of the school year for which services are being requested. 50 d) Compensatory Relief The remedy for a school district’s failure to provide appropriate equitable services required under Education Law § 3602-c is similar to the remedy for a school district’s failure to provide appropriate services under the IDEA. 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. P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008). 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) (citing cases). 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).
e) IEE
General Process
The IDEA and State and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation. 20 U.S.C. § 1415 (b)(1); 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted). In Shaffer v. Weast, the Supreme Court explained the role an IEE plays in parental participation and the IDEA’s regulatory scheme as follows: “[an IEE] ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” 546 U.S. 49, 60-61 (2005).
If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE. 8 NYCRR § 200.5(g)(1)(i). A school district can set criteria regarding the IEE, including the qualifications of the examiner, but the district’s criteria must be the same as the criteria it uses for its own evaluations, and the district cannot impose additional conditions or timelines related to the IEE. 34 C.F.R. § 300.502(e)(1); 8 NYCRR § 200.5(g)(1)(ii); Letter to Kirby, 213 IDELR 233 (OSERS 1989). For example, a school district may not compel the use of a particular evaluator or its own chosen evaluator for an IEE (Board of Education of the County of Nicholas v. H.A., 445 F. App’x 660 (4th Cir. 2011)), nor can it deny an IEE at public expense based solely on financial cost (Letter of OSERS, 2002). A parent’s right to an IEE at public expense may not be conditioned on the school district’s ability to first conduct its own assessment before granting the parent’s request for an independent IEE. Letter to Carroll, 68 IDELR 279 (OSEP 2016). Finally, while the school district may “ask for the parent’s reason why he or she objects to the public evaluation,” the district cannot require an explanation or delay providing the IEE until the parent provides an explanation. 8 N.Y.C.R.R. § 200.5(g)(1)(iii).
When a parent disagrees with a school district’s evaluation and requests an IEE at public expense, the school district “must, without unnecessary delay,” either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 NYCRR § 200.5(g)(1)(iv) (emphasis added).
A parent is entitled to an IEE when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need. D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020). In D.S., the court stated that, “[n]othing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.” Id. The U.S. Department of Education's Office of Special Education Programs (“OSEP”), has similarly stated that when a parent disagrees with an evaluation because a child was not assessed in a particular area, “the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs” (Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016)).
FINDINGS OF FACT AND DECISION
Provider testified via affidavit as follows (P-K): Provider offers special education support to children in the mainstream setting by providing one to one specialized instruction. Student presents with significant delays in the areas of cognitive functioning, fine motor skills and expressive language skills. Moreover, Student exhibits notable attentional deficits and maladaptive behaviors, such as impulsivity, outbursts, and frequent tantrums. Student’s behavioral needs significantly impact his classroom performance, and he requires consistent prompting and individualized attention to stay on task and make academic progress. Student has been receiving special education services from Provider for the 2021-2022 school year and the 2022-2023 school year. Specifically, providing Student with three (3) hours per week of SEIT services from September 2, 2021, through June 30, 2022, and is currently providing Student with three (3) hours per week of SEIT services beginning September 8, 2022. Student received and is receiving the services at Private School. Informal assessments, classroom observations and teacher interviews were used to assess Student’s math, reading, writing and social skills for the 2021-2022 and 2022-2023 school years. Student requires additional SEIT hours as he is performing below grade level in all content areas. Student has a hard time focusing on a task and is easily distracted. He requires individual instruction to maintain focus and work using specialized teaching methods that are based on Student’s academic levels and that utilizes his strengths. Student would also benefit from occupational therapy services, as he struggles with sensory/motor skills, which negatively impact his ability to perform in an academic setting. For the 2021-2022 school year Provider charged $182 per hour for SETSS services and $197 per hour for the 2022-2023 school year. The rate includes the amount paid directly to the teacher as well as additional direct and indirect support, and goes towards overhead costs, such as employment taxes and administrative costs.
The District cross-examined the provider, who testified as follows:
Provider prepares progress reports three times a year. The parent receives a copy and if they are asked to participate in an IEP meeting, Provider will share the report with the DOE. As to rate, for the 2021-2022 school year the specific SEIT teacher was paid $90 per hour with the remainder going towards other expenses and for the 2022-2023 school year the SEIT teacher was paid $100 per hour.
Parent testified via affidavit as follows: (P-L)
Student is classified as a student with an emotional disturbance by the New York City Department of Education. Student presents with delays in the areas of cognitive functioning skills, academics, and fine motor skills. He further has difficulty with social/emotional skills which is compounded by the fact that he struggles to express himself. On February 23, 2021, Parent attended a “turning 5 CSE review” since Student was aging out of his preschool program. As a result, the CSE had developed an Individualized Education Services Program (IESP).[51] At this meeting the CSE terminated Student’s special education teacher services and recommended the following related services program; individual counseling 1x30 per week bilingual in Yiddish and 1x30 group counseling bilingual in Yiddish. At this meeting, the Parent strongly disagreed with this recommended new program. Parent stated at the meeting that Student requires individualized support and instruction throughout the day due to his distractibility and behavioral needs, which impede his ability to learn. This was one reason why Parent hired Provider to provide three (3) hours per week of special education instruction for the 2021-2022 and 2022-2023 school year. The CSE was supposed to reconvene in February 2022 but failed to do so. There has been no updated educational program. Parent believes that Student would benefit from occupational therapy as his current sensory/motor processing needs negatively impact his ability to learn.
Parent emailed the CSE on November 14, 2022, and November 21, 2022, seeking a new meeting to reevaluate Student’s services and to request an increase in special education teacher services. After beginning services, Parent has noted improvements in Student’s academic skills as well as social skills, however he is still struggling to keep up and still requires additional special education services. Parent is also seeking an award for an increase in special education services from 3 hours per week to 6 hours per week. Parent signed contracts with the Provider to guarantee payment for special education teacher instruction for the 2021-2022 and 2022-2023 school years. Parent has not made any payment to date. Parent is not in a financial position to cover the costs associated with Student’s services from provider for the 2021-2022 and 2022-2023 school years. If she should not prevail in this proceeding, she will be responsible to pay for the service costs.
The District cross-examined the Parent, to which she testified as follows:
Parent did not receive invoices for the services but did receive progress reports three times a year. Parent emailed twice for an IEP meeting and did not receive a response. Parent doesn’t recall the exact time she requested SEIT services from the DOE, but it was at the beginning of the school year. Between March 3, 2021, and September of 2021 Parent noted significant regression in her son. Parent was expecting to have another IEP meeting and did not request a re-evaluation.
Parent’s counsel re-directed the witness and the IHO asked additional clarifying questions. Student attends school six days a week. (Monday, Tuesday, Wednesday, Thursday, Friday and Sunday)
I find the testimony of both the Provider and the Parent credible. I find that the Provider offers uniquely tailored instruction to the Student based upon meetings with Student’s teachers and parents, assessments and classroom observations. Provider also testified credibly that progress was measured through assessments, provider meetings and classroom observations and that Student was making progress. Lastly, the provider testified credibly that Student was receiving 3 hours a week of special education sessions but required 6 hours per week.
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 attended the Private School during the 2021-2022 and 2022-2023 school years. Furthermore, it is uncontested that the Private School is located within the geographic boundaries of the DOE.
As to the 2021-2022 school year, Student is entitled to the services as described in the March 3, 2021, IEP, 3 hours per week of SEIT services 2:1 bilingual in Yiddish, and that the DOE did not provide such services.
There is no evidence or claim made by the DOE asserting or suggesting that the Parent failed to cooperate with the DOE or interfered in any manner with the DOE’s obligation to provide the Student with a FAPE on an equitable basis for the 2021-2022 and 2022-2023 school years.
I find that the district failed to offer evidence in the form of updated evaluations to justify the recommendations in the March 3, 2021, IEP.[52] As to the related service of occupational therapy, I find that the district failed to present an argument or evidence to support not providing an evaluation or the related services.
I find based on the Provider testimony, and the progress report provided (P-J), that Student is in need of increased services. Accordingly, Parent’s request for an increase from three (3) to six (6) hours of special education services is granted.
The District misstates and misunderstand the burdens in this matter. School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). The issues raised in the DPC are not relating to a unilateral placement, therefore the District retains the burdens of production and persuasion with regards to ALL issues in this matter. Furthermore, as the Student was issued an IEP and not an IESP, the DOE is required to hold a CSE meeting once a year and create a new IEP. This was not done and no explanation was given as to why. Therefore the District failed to offer student a FAPE for the 2021-2022 and 2022-2023 school years. However, as the Student does attend a non-public school, in the alternative, I find that the District did not offer evidence by affidavit or direct testimony from a witness with personal knowledge of the district’s procedures in the regular course of business for acknowledgment of receipt of such notices (referring to the June 1 argument) nor did the District attempt during cross-examination to elicit such testimony from the Parent’s witnesses. Such testimony was necessary to establish through admissible evidence that the DOE did not receive notice on or before 06/01/2022. Therefore, the unsworn assertions by the District’s Attorney in the closing statement constitute hearsay without evidentiary support in the record. This hearsay is given no credible weight and disregarded by this IHO. It is also noted that the district did not call the parent as a witness on its direct case to establish when the notice was filed, and any acknowledgment received in response thereto. Concerning the appropriateness of the rate charged by the Provider, I find that the District also failed to come forward with evidence as to the current market rate for either SETSS or SEIT services. Provider credibly testified as to the rate for the 2021-2022 and 2022-2023 school years, including what portion went to the providers personally and how much was allocated to overhead and other expenses. Accordingly, I not only find that the agency is appropriate to meet the student’s unique needs, but I also find the requested enhanced hourly rates to be reasonable and appropriate. Lastly, I find that Parent has provided a disagreement with the program and evaluations provided by the DOE and therefore are entitled to an IEE in the area of occupational therapy. In this case, the DOE did not initiate an impartial hearing to establish that its recent evaluations were appropriate, nor did it take the necessary action to ensure that the Parent’s requested IEE was provided at public expense. The Parent is therefore entitled to have the IEE conducted at public expense by a duly qualified evaluator selected by him/her/them.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) The DOE reimburse Parent and/or directly fund three (3) sixty (60) minute sessions per week, of 1:1 special education itinerant teacher services (SEIT) and/or special education teacher select services (SETSS), bi-lingual in Yiddish, for the 2021-2022 school year, with the Provider, at a rate not to exceed $182 per hour, within forty-five
(45) days of receipt of submission of invoices for services rendered; and
(2) The DOE is directed to implement six (6) sixty (60) minute sessions per week of 1:1 bi-lingual Yiddish special education itinerant teacher services (SEIT) and/or special education teacher select services (SETSS), for the 2022-2023 school year; and
(3) Until such time as the DOE commences implementation of the above, the DOE’s Implementation Unit is directed, upon submission of invoices for services rendered and a valid contract between the Parent and provider, to reimburse and/or directly fund the above-mentioned services for the 2022-2023 school year at a rate not to exceed $197 per hour, within forty-five (45) days of receipt of the supporting documentation; and
(4) The DOE shall fund an independent occupational therapy (OT) evaluation (IEE) to be conducted by a licensed provider/agency of the parents choosing at a “reasonable market rate” to be paid within 30 days of the Parent’s submission to the DOE of an invoice for such service: and
(5) The Parent shall provide the CSE with the report from the OT IEE within 14 days of issuance: and
(6) The CSE shall reconvene within 14 days of receipt of the OT IEE and develop new a placement and/or program for Student with meaningful and measurable goals to address the Student’s individual academic, behavioral, social and emotional deficits and that the CSE must rely on the recommendations of the Student’s independent evaluators when developing the new IEP/IESP as appropriate, as well as parental concerns and input.
Dated: 3/15/2023
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
1. IEP 03/03/2021 12 pages DOE
PARENT EVIDENCE
A. Exhibit Document Title Date Pages Impartial Hearing Request 09/08/2022 2 pages
B. Statement of Agreement and Order 11/15/2022 3 pages
C. Amended Impartial Hearing Request 11/29/2022 2 pages
D. Letter from Parent to CSE Chairperson 07/18/2022 1 page
E. Affidavit of Services- 2021-2022 School Year 11/23/2022 1 page
F. Affidavit of Services- 2022-2023 School Year 11/23/2022 1 page
G. Provider Outreach Log— SETSS 09/29/2022 3 pages
H. Enrollment Contract—2021-2022 School Year 08/25/2021 3 pages
I. Enrollment Contract – 2022-2023 School Year 09/05/2022 3 pages
J. Provider - Progress Report 11/23/2022 5 pages
K. Affidavit of Testimony of Provider Undated 4 pages
L. Affidavit of Testimony of Parent 11/29/2022 2 pages
IHO EXHIBITS
None
Redacted Information Term Used In FOFD
REDACTED Student
REDACTED Parent(s)/Guardian(s)
REDACTED Parent Attorney/Representative
REDACTED DOE Attorney/Representative
REDACTED Law Clerk
REDACTED Private School
REDACTED Service Provider/Provider
Footnotes
[1] P-A
[2] Id.
[3] D-1 and P-D
[4] 20 U.S.C. § 1400 et seq. and 34 C.F.R. § 300 et seq.; New York State Education Law § 3602-c and § 4404 et seq., and 8 NYCRR § 200.5 et seq.
[5] A statement of agreement and Order was issued on Pendency by this IHO on November 15, 2022.
[6] 20 U.S.C. § 1400 [d][1][A]
[7] 20 U.S.C. § 1401[9] Matter of Board of Educ. Of Bay Shore Union Free School Dist. V. Thomas K., 14 N.Y.3d 289, 292-293 [2010]. See also, Application of a Student with a Disability, Appeal No. 20-115 [Sept. 3, 2020]
[15] E.T. and D.T. ex rel. E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., supra., at 11 [internal quotations and citations omitted]; Monroe-Woodbury Cent. School Dist. v Wieder, 72 N.Y.2d 174, 184 [1988] [internal citations omitted] 21 Id.
[16] Matter of Board of Educ. Of Bay Shore Union Free School Dist. V. Thomas K., 14 N.Y.3d 293
[17] N.Y. Educ. Law § 3602-c [2] [a]
[18] N.Y. Educ. Law § 3602-c [2] [b] [1] [emphasis added]
[19] Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c, Attachment 1 [September 2007]
[20] Matter of Board of Educ. Of Bay Shore Union Free School Dist. V. Thomas K., 14 N.Y.3d 293, citing Board of Educ. of
[23] Education Law § 3602-c [2] [b] [1]; 20 U.S.C. §§ 1221e-3, 1415 [e] & [f]; Education Law § 4404 [1]; 34 CFR §§ 300.151- 300.152; 8 NYCRR §§ 200.5 [h]-[l]
[24] 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]); See also, Matter of Board of Educ. Of Bay Shore Union Free School Dist. V. Thomas K., 14 N.Y.3d 294
[25] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (internal citation omitted).
[26] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 [2d Cir.2002]
[27] See Doe v. East Lyme, 790 F.3d at 454
[28] Id. at p.203
[29] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 988, 100 [2017]; and See 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR § 200.4[d][2][iii]
[30] Id.
[31] See, P. v. Newington Bd. Of Edu., 546 F.3d 111, 119 [2d Cir. 2008]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005]; and Walczak, 142 F.3d 119, 130 [2d Cir. 1998] [citations omitted] providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing, except that a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement” [emphasis added].
[32] Application of a Student with a Disability, Appeal No. 20-115, p9., fn.12, supra
[33] Matter of Board of Educ. Of Bay Shore Union Free School Dist. V. Thomas K., 14 N.Y.3d 292; Bay Shore Union Free Sch. Dist. V. Kain, 485 F.3d 730, 736 [2d Cir. 2007]; and see Gabel ex rel. L.G. v. Bd. Of Educ., 368 F. Supp. 2d 313, 333 [S.D.N.Y. 2005] (“What the Commissioner's Decision 12,530 makes clear is that no court, including this Court, has jurisdiction over an appeal relating to this issue [reimbursement for related services]. IDEA confers no jurisdiction on this Court because it confers no right of due process review on this issue. State law -- the only law that gives [a student] the right to any due process review of a decision denying related services to a private school student -- provides that an administrative determination after impartial hearing concerning related services is reviewable only by the Commissioner. § 3602-c[2].”
[34] R.G. v. New York City Dep’t of Educ., 585 F.Supp3d 524, 530 [S.D.N.Y. 2022]
[35] Application of a Student with a Disability, Appeal No. 20-115, p9., fn.12, supra
[36] Id. and Application of a Student with a Disability, Appeal No. 21-245; and see Educ. Law § 4404[1][c]; 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]
[37] See Education Law §4404[1][c], “The board of education or trustees of the school district or the state agency responsible for 50 Education Law § 3602-c [2][a] and Decision No. 15.195 [2005] [Office of Counsel [nysed.gov])
[48] Id., and Application of a Student with a Disability, Appeal #21-068 [04/21/21], p.12
[49] See, Shaya Eidelman v. Sun Prods. Corp., 2022 U.S. App. LEXIS 15480, 2022 *6, WL 1929250 [2d Cir. 2022] An Independent Educational Evaluation (IEE) is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” 8 NYCRR § 200.1(z).
[51] Neither party submitted the IESP into evidence for this IHO to review.
[52] D-1 and P-D