New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 585526 - NYC: 237028

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (“Student”)

School District: REDACTED (“School District”)

Impartial Hearing Officer: Ashley Grant

Date of Filing: 9/7/2022

Hearing Requested by: Parent

Date of Hearing: 12/14/2022, 2/21/2023

Record Close Date: 3/3/2022

Date of Decision: 3/7/2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/14/2022:

For the Parents:

REDACTED (hereinafter “Parent Representative”), Representative for the Parent For the New York City Department of Education (“DOE” or “District”): REDACTED (hereinafter “DOE Representative”), DOE Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 2/21/2023:

For the Parents:

Parent Representative

Parent

REDACTED, (hereinafter “Classroom Teacher”), Private School For the DOE: DOE Representative REDACTED, DOE School Psychologist (hereinafter “School Psychologist”)

BACKGROUND AND PROCEDURAL HISTORY

On 9/6/2022, the Parent, through her attorney, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE”) on behalf of Student, under Case No. 237028, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(f), and New York State Education Law § 4404(1) and § 3602-c(2)(b)(1). Ex. A. In the DPC, Parent alleged that, for the 2022-2023 school year, the DOE failed to implement the Student’s Individualized Education Services Program (“IESP”) dated 5/5/2021 and disputed “any subsequent program the DOE developed.” Id. The DPC also alleges that “Parent was not able to locate providers to work with the Student at DOE’s standard rates and the DOE did not provide any”. Ex. A-1. As compensatory relief, Parent seeks a compensatory education award requiring the DOE to pay private providers to provide Special Education Teacher Support Services (“SETSS”) and requests “all related services and aides on the IESP for the entire 2022-23 school year.” Id. The Parent also seeks pendency. Id.

On 10/14/2022, I was appointed the impartial hearing officer (“IHO”) for this case.

I held a due process hearing on 12/14/2022. The DOE declined to make an opening statement. Tr 8:23. Parent Representative made an opening statement. Tr. 9-10. I admitted the District’s exhibits 1-6 without objection (tr. 6-7), including a sworn affidavit of School Psychologist (ex. 6), whom Parent Representative cross-examined. Tr. 15-31. I also admitted Parent’s exhibits A-C and E-H without objection. Tr. 6-7. These exhibits included sworn affidavits from Student’s Parent and Classroom Teacher (Ex. F,G), both of whom DOE Representative cross-examined. Tr.8. The Parent did not seek to introduce any exhibits marked as D. Id. A list of the documentary evidence in this proceeding is appended to this Order. Both parties made closing statements. Tr. 41- 47. Parent requested an extension of the compliance date to allow for the receipt of transcripts, which I granted. Tr. 47-48.

After reviewing the transcript, I requested that the parties return on 2/21/23 to address the Parent’s request for related services. The record in this matter closed on 3/3/23.

FINDINGS OF FACT

The following facts are uncontested: Student and Parent reside in New York City and Student is attending REDACTED, “Private School” for the 2022-2023 school year. Ex A. Private School is located within the geographic boundaries of the DOE. Ex. A. An IESP dated 5/5/2021 (“2021 IESP”) is the last agreed-upon program for Student. Ex. A, tr. 47-48.

After a full review of the record generated at hearing, my findings of fact are as follows:

At the time of the 2021 IESP, created at the end of Student’s kindergarten year, Student’s classroom teacher reported that Student’s reading and math skills were on grade level, that he had a good grasp of phonics and could perform two-digit division, but sometimes confused place value (reading 15 as 51, for example). Ex. B-1. The 2021 IESP contained seven academic goals and recommended five periods per week of SETSS in a group, two 30-minute periods (“2x30”) per week of individual speech-language therapy (“SLT”), and one 30-minute period (“1x30”) per week of group SLT. Ex. B. The 2021 IEP describes Student as “bright and capable,” says “[t]eacher notes that [Student] can be distracted in a large group setting, and needs redirection. Mother shared that [Student’s] reading comprehension and subtraction skills need improvement. Speech provider notes that [Student] needs to improve his ability to articulate the voiced and voiceless /th/ sound, as well as his ability to answer "wh" questions. Therefore, continued SETSS and speech and language therapy are being recommended at this time.” The appropriateness of the 2021 IESP is not in dispute. Ex. A.

On 8/11/2022, a Committee on Special Education (“CSE”) team convened for an annual review and created an IESP (“2022 IESP”) for the 2022-23 school year. Ex. 2,5,6. The 2022 IESP continued to recommend SLT and removed all SETSS. Ex 2-14. Parent does not dispute the appropriateness of the SLT recommendation. Ex. A. Student is receiving SLT at Private School consistent with the 2022 IESP and the provider is paid by the DOE. 1 Tr. 55-57. At the time of the meeting, Parent requested 10 periods per week of SETSS and disagreed with the removal of SETSS from the IESP. Ex. A, 5-3.

School Psychologist testified credibly about the 2022 CSE meeting. Ex. 6-2. In attendance at the 2022 CSE/IESP meeting were REDACTED, Student’s SETSS teacher (“SETSS Teacher 1); REDACTED, a school psychologist at the DOE’s CSE REDACTED (“School Psychologist”); Parent; REDACTED, a special education teacher (“Special Education Teacher”); and REDACTED, Student’s classroom teacher (“Classroom Teacher”). Ex. 5-4, 6-1.

Parent submitted a copy of an email from SETSS Teacher 1 to REDACTED, CSE REDACTED Placement Officer, dated 7/19/2022, three weeks before the 2022 IESP was created. Ex. H, Tr. 26. School Psychologist testified that she reviewed the email before the 2022 CSE meeting. Tr. 27. In the email, SETSS Provider 1 reported in detail on Student’s progress in math, oral reading, reading fluency, and reading comprehension skills. Ex. H. SETSS Provider 1 recommended specific strategies to improve comprehension skills, writing skills, working memory skills, and focus/attention. Id. SETSS Provider^[1] also recommended five academic goals. Id. SETSS Provider 1’s email indicates that Student “needs review with strengthening his working memory, an important component of executive function.” Ex. H-3. The email does not indicate whether SETSS is required to address these needs.

According to minutes from the 2022 CSE meeting, the team discussed that Student was parentally placed at Private School and would be entering second grade in the fall, specifically a “bridge class” of 15 students in grades 1 through 3. Ex. 5-1. At Private School, there are two teachers, three when the SETSS provider is in the room. Id. Children are typically grouped by grade, about five in each group. Id.

School Psychologist testified that at the time of the meeting, it was reported that Student had successfully completed first grade at Private School and was performing at or above grade level in math. Ex. 6-2. It was reported that Student received reading instruction using third grade leveled text, which was above his grade level. Id. In terms of writing, it was reported to the team that Student was performing at grade level, but struggled with comprehension, answering “wh” questions, temporal words, making inferences, grammar and comprehension. Id, tr. 25-26. School Psychologist reported that Classroom Teacher and SETSS Provider 1 estimated that Student’s decoding skills were on a second-grade level, and that his comprehension and writing skills were at the end of a first-grade level. Id. Classroom Teacher reported that Student was reading at grade level, if not higher. In math, it was reported that Student’s computation skills were on a second-grade level. Id.

In connection with the 2022 IESP meeting, School Psychologist also reviewed Speech/Language progress report drafted by REDACTED (“Speech Therapist”). Ex. 6-1. The Speech Language report indicates that Student was receiving SLT 1x30 per week in a group of two, had shown progress answering “wh” questions, but continued to need help in this area; the speech therapist strongly recommended SLT services continue. Ex. 3-2, 6-1. The 2022 IESP recommends 2x30 per week of individual SLT and 1x30 per week of group SLT and includes six speech/language goals, addressing two-step directions, answering “wh” questions, using temporal words in writing, summarizing a story, improving sentence structure, and engaging in verbal exchanges with a group partner. Ex 2-9 to 2-14. The team determined that Student no longer needed SETSS as he was working at or above grade level in all academic subjects. Ex. 6-3, tr. 18. As such, School Psychologist testified that it was determined that Student could make meaningful progress with the recommended SLT and no longer required SETSS services. Id.

Parent testified that, during the 2022 CSE meeting, there was no consideration of Student’s classroom size, no consideration that Student is performing on grade level because he received SETSS in 2021-2022 and “no consideration of my concerns as his mother or the insistence of his previous SETSS provider . . . stating that he needs the SETSS and will not succeed academically without it.” Ex. F-2.

Psychologist testified that although the Parent requested that Student receive an increase of SETSS per week, it was determined that Student no longer required the service because Student was in a general education classroom for the vast majority of the week and was able to access and perform satisfactorily in all academic subjects, and because, although Classroom Teacher and SETSS Provider 1 did not use any specific reading program with Student, Student had shown improvement. Ex. 6-3, tr. 29-30. I credit School Psychologist’s testimony as it is consistent with the CSE minutes from the 8/11/2022 meeting (ex. 5) and is not contradicted by either the July 2022 Progress Report (ex. H) or the testimony of Classroom Teacher (ex. G).

Student’s Classroom Teacher, who has been teaching Student since the beginning of the 2021-2022 school year, credibly testified via an affidavit dated 12/13/2022 that Student “has been able to make the progress he has made through the continued one on one instruction he is able to receive due to the dedication of both myself and my co-teacher.” Ex. G-1. Classroom Teacher testified that Student decodes on grade level, but does not move at the same speed in comprehension. Id. Student struggles to define words, struggles to focus during lecture instruction, and needs to have one person with him to keep him focused and on task. Ex. G-2. Classroom Teacher did not indicate how these strengths and needs compare to grade-level expectations or same-age peers and did not provide any testimony regarding SETSS services. Ex. G.

Parent requested an increase in SETSS services at the 2022 CSE meeting (ex. 2-5, 5-3, F1) and now seeks five hours of SETSS per week. Ex. F-1. Parent credibly testified that Student needs lots of assistance with reading homework, particularly inference questions; that Student has difficulty completing sentences in his spelling work, that he is easily distracted, and that Parent has concerns with how long it takes Student to learn. Ex. F-1.

The 2022 IESP goals include “mak[ing] predictions and inferences about what will happen next in a story,” “improv[ing] his sentence structure . . . during structured activities,” and “accurately complet[ing] two-step directions with no more than one verbal or visual prompt/cue.” Ex. 2-8 to 2-9.

Parent testified that Student “is just managing to be at grade level even with the SETSS he received last year.” Ex. F-2. This is contradicted by minutes from the CSE meeting indicating “his report card lists Satisfactory through out (sic) the year in all areas” (ex. 5), and by a letter from Classroom Teacher referring to the 2021-22 school year and reporting that Student was reading and understanding math word problems above grade level (ex. 4-1).

Parent entered into an agreement with REACTED (“Director”), Director of REDACTED (“Service Agency”) for five periods per week of SETSS at a rate of $195 per hour. Ex. E. The agreement was effective 9/1/2022. Id. A progress report dated 12/5/2022, identifies REDACTED (“SETSS Provider 2”) as Student’s current SETSS Provider. Ex. C. The progress report indicates that Student sometimes struggles with phonics and rhyming words; has difficulty with regrouping, two-step word problems, and place value in math; struggles with spelling and phrasing in writing. In it, SETSS Provider 2 recommends that Student continue to receive SETSS five hours per week. Id.

LEGAL FRAMEWORK & CONCLUSIONS OF LAW

Burden

District Representative mistakenly argues that Parent has the burden of establishing that SETSS services are appropriate for Student. Tr. 41 9-10. 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).

Pendency

The IDEA and the New York State Education Law require that a student remain in the student’s then current educational placement, unless the student’s parents 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); Educ. Law §§ 4404(4), 4410(7)(c); 34 CFR § 300.518(a); 8 NYCRR § 200.5(m); Student X v. New York City Dep’t of Educ., 2008 U.S. Dist. LEXIS 88163, at *58-59 (E.D.N.Y. Oct. 30, 2008); Bd. of Educ. v. O'Shea, 353 F. Supp. 2d 449, 455-56 (S.D.N.Y. 2005); Application of a Student with a Disability, Appeal No. 14-024; Application of the Dep’t of Educ., Appeal No. 08-061.

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. Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982); see 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 either: (1) the placement described in the student’s most recently implemented Individualized Education Program (“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. 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; see also T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d at 170-71 (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 S., 96 F.3d 78, 83 (3d Cir. 1996); Letter to Baugh, 211 IDELR 481 (OSEP 1987). The term “thencurrent educational placement” in the stay-put provision typically refers to the child’s last agreed-upon educational program before the parent requested a due process hearing to challenge the child’s IEP. DePaulino v. New York City Dep’t of Educ., 959 F.3d 519, 532 (2d Cir. 2020).

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). 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., 137 S.Ct. 988, 999 (2017); see, e.g., 20 U.S.C. § 1412(a)(l)(A); Educ. Law §§ 4402(2)(a), (b)(2).

Dual Enrollment

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).

The creation of an IESP and implementation of IESP services falls on the district of location insofar as “boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent.” Educ. Law § 3602-c(2)(a). 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.” Educ. Law § 3602-c(2)(b)(1). Additionally, section 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404. Equitable Relief

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” Sch. Comm. of Town of Burlington, Mass., v. Dep’t of Educ. of Mass., 471 U.S.359, 374 (1985); Carter, 510 U.S. at 15-16. As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.” Boose v. District of Columbia, 786 F.3d 1054, 1056 (D.C. Cir. 2015) (citing Carter, 510 U.S. at 15-16). In actions brought under the IDEA alleging a denial of FAPE, “the court shall 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, 790 F.3d at 454.

Conclusions of Law

Pendency

The purpose of the IDEA’s pendency provision is “to provide stability and consistency in the education of a student with a disability.” Application of a Student with a Disability, No. 20-

198 (citing Honig v. Doe, 484 U.S. 305, 323 (1987) (further citations omitted). The central inquiry in pendency is identifying a student’s then-current educational placement; here the parties agree that the IESP dated 5/5/2021 describes Student’s last agreed-upon placement for the purposes of pendency. Ex. A, Tr. 47-48. As there is no dispute as to pendency, a pendency order is not necessary. Nonetheless, at the request of the Parent, I am ordering that, for the pendency of this matter, the District implement the services contained in the 2021 IESP retroactive to the date of filing.

2022 IESP

The DOE created the 2022 IESP in advance of the 10-month 2022-2023 school year. The 2022 IESP recommends weekly SLT, 2x30 individually and 1x30 as a group. The Parent does not dispute the 2022 IESP’s SLT recommendation and Student is receiving SLT services. Parent’s two-page DPC does not reference the 2022 IESP nor allege any procedural violations, but references the 2021 IESP and disputes “any subsequent program the DOE developed that removed and/or reduced the services on the IESP.” Tr. 9, ex. A. At hearing, Parent’s only specific challenge to the 2022 IESP was a substantive one: the IESP does not contain SETSS services (Ex. A, tr. 42-46).

To meet its substantive obligations, a district must show that it offered services that are reasonably calculated to enable the Student to make progress appropriate in light of his circumstances. I find that the DOE has met this burden.

As described above, School Psychologist credibly testified that the CSE team that created the 2022 IESP considered Classroom Teacher’s report, speech language progress reports, school progress reports, and the reports of SETSS Provider 1, Classroom Teacher, and Parent, when determining that Student could make progress with speech-language therapy and did not require SETSS services.

Although Student had not yet started second grade, Classroom Teacher reported he was reading and doing math on a second-grade level. The 2022 IESP reflects the strengths and needs Parent, Classroom Teacher, and SETSS Provider 1 reported. Specifically, the IESP indicates that Student was performing above grade level in reading, writing and math, although he struggled with “wh” questions, temporal words, inferences, grammar and comprehension. The six SLT goals contained in the 2022 IESP directly address the struggles described by Classroom Teacher and SETSS Provider 1.

Parent testified that the CSE team failed to consider class size or the concerns of Parent and SETSS Provider 1. Ex. F-2, paragraph 13. However, this portion of Parent’s testimony is contradicted by School Psychologist’s testimony and by minutes from the meeting, both of which indicate that the team discussed that there would be 15 students and two teachers in Student’s class at Private School. Ex. 5 & 6. Parent also testified that the team did not consider that Student had received SETSS services the prior year. Ex. F-2. However, Student’s SETSS teacher participated in the meeting and School Psychologist testified that the team determined that Student “no longer required the services.” Ex. 1, 6-3

In affidavit testimony dated four months after the 2022 IESP meeting, Student’s Classroom Teacher testified that Student has made progress “through the continued one and one instruction he is able to receive due to small classes and the dedication of both myself and my co-teacher.” Ex. G-1. Classroom Teacher describes a number of skills which Student needs to work on, but does not indicate how student’s needs compare to grade-level peers, and makes no reference to SETSS. Although a report from SETSS Provider 2 dated, December 5, 2022, recommends that Student receive five hours per week of SETSS services, there is no evidence that SETSS Provider 2 attended the CSE meeting or provided this recommendation at the time of the meeting. I also do not find the recommendation persuasive because SETSS Provider 2 did not testify at hearing. As such, I have no information regarding SETSS Provider 2’s qualifications, regarding the goals or strategies used in SETSS, or how SETSS Provider 2 arrived at the recommendation for five hours per week. Id.

As the student is performing above grade level in all academic areas, and as the SLT goals address Student’s areas of need, I find that the SLT services recommended in 2022 IESP and the removal of SETSS services was reasonably calculated to allow Student to make progress that is appropriate in light of Student’s individual circumstances. As such, the 2022 IESP provides the Student with equitable services under 3602-c. As the 2022 IESP was appropriate, I decline to consider compensatory relief.

I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

IT IS HEREBY:

1. ORDERED that, retroactive to the filing of the DPC, the DOE shall provide during the pendency of this matter, the program and related services described in the IESP dated

5/5/2021.

SO ORDERED.

DATED: March 7, 2023

/Ashley Grant/ (signed electronically)

Impartial Hearing Officer

Ashley Grant

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 Attendance Form 8/11/2022 1 page DOE

2. IESP 8/11/2022 14 pages DOE

3. Student Progress Report 6/23/2022 2 pages DOE

4. Teacher Report 7/29/2022 1 page DOE

5. CSE Minutes – School Psychologist 8/11/2022 4 pages DOE

6. Affidavit – School Psychologist 12/8/2022 3 pages DOE

PARENT EVIDENCE

A. Impartial Hearing Request 9/6/2022 6 pages

B. IESP 5/5/2021 10 pages

C. Progress Report 12/5/2022 1 page

D --N/A-- -- --

E Agreement 9/1/2022 1 F Affidavit of Parent 12/1/2022 2 G Affidavit of Classroom Teacher 12/12/2022 2 H Email from SETSS Provider 1 to CSE Placement Officer 7/19/2022 5

IHO EXHIBITS

N/A

Footnotes

[1] Although the DPC alleges that “Parent was not able to locate providers to work with the Student at DOE’s standard rates and the DOE did not provide any” and seeks an order that includes “all related services and aides on the IESP for the entire 2022-23 school year,” Parent Representative did not address any related services during the hearing and indicated that speech therapy was resolved and “it’s on his current IESP, and therefore, it is being provided at the school.” Tr. 55. DOE Representative confirmed, “the student is already receiving the speech services, and the District is paying for it.” Tr. 57.