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CASE NUMBER: 585901 NYC: 237372
FINDINGS OF FACT AND DECISION
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed., District # REDACTED Impartial Hearing Officer: Harry A. Christodoulou
Date of Filing: 09/08/2022
Hearing Requested by: REDACTED (hereinafter referred to as “Parent
1”) Date of Hearing: 12/16/2022, & 01/11/2023
Record Close Date: 02/13/2023
Date of Decision: 02/21/2023
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 16, 2022:
For the Student:
REDACTED (hereinafter referred to as “Parent’s representative”)
For the Department of Education (“DOE”): REDACTED (hereinafter referred to as “District’s representative”)
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 11, 2023:
For the Student:
Parent’s representative
REDACTED (hereinafter referred to as “Parent 2”)
REDACTED (hereinafter referred to as “Parent’s Witness”)
For the DOE: District’s representative
BACKGROUND AND PROCEDURAL HISTORY
Student is a REDACTED-year-old child classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute.
On September 9, 2022 [1], the Parent, through the Parent’s representative, filed a due process complaint (“DPC”) against the DOE pursuant to the IDEA. I was appointed on November 15, 2022, to preside over the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC, concerning the special education program of the Student. The claims in the DPC relate to the Student’s special education program and the provision of related services for the 2022-2023 [2] school year (“SY”), asserting inter alia that: it is the DOE’s non-delegable duty to locate service providers and implement the Student’s Individualized Education Services Program (“IESP”); the DOE failed to implement the special education services recommended on the Student’s IESP; having no success securing a ‘DOE rate’ service provider, Parent unilaterally secured a service provider to work with Student for an enhanced right. Parent is seeking an order, inter alia, that services be funded at the service provider’s enhanced rate. It also includes a request for compensatory or make-up sessions for any services Student was entitled to and did not receive including any pendency services (Ex. P-A-2, & P-A-3).
It was confirmed at the IH that pendency had been resolved amongst the parties and a Pendency Implementation Form signed on December 16, 2022, was submitted and admitted to the record (Ex. DOE1) in support thereof.
JURISDICTION
A decision in this matter is being rendered, pursuant to the IDEA [3], and its implementing regulations [4], and the New York State Education Law [5], and its implementing regulations [6].
PARTIES’ POSITIONS AND CASES PRESENTED
For the Department of Education:
At the IH held on December 16, 2022, the District’s representative confirmed that the DOE was not putting on a case in the sense that it was not putting up any documents in the main case, would not be calling witnesses and that the District was conceding that it did not provide Student with a FAPE for the SY in issue (T. P14, P30, & P38).
In an opening statement District’s representative asserted: The evidence presented at the IH will demonstrate that the Student is not entitled to the special education teacher support services (“SETSS”) at the enhanced rate; therefore, the Parent's request for five periods of SETSS per week at the enhanced rate for the 2022-2023 SY should be denied (T. P39).
Parent:
Parent, through the Parent’s representative, submitted seven documents in support of the Parent’s case. The proposed exhibits were admitted to the record (and are listed below) after confirming with the District’s representative that there were no objections from the DOE to those documents being admitted into evidence. The deponent to the affidavit (Ex. P-F) was required for cross-examination purposes and/or clarifying questions.
In an opening statement Parent’s representative asserted, inter alia: Parent sent two letters requesting a CSE meeting; the CSE had 60 days once it is requested to conduct the meeting or they can waive it if there is agreement with the Parent and the District, which never happened; the District never contacted Parent and is out of compliance; there is a very old IESP from 2020, which was confirmed as being the most current in the District's opening statement; that Parent would present evidence supporting an increase from three to five periods of SETSS per week, which was being requested for the 2022-2023 SY at the enhanced rate (T. P39-P41).
Parent 2 was called to testify, who spoke to Student’s need for increased periods of SETSS, the two letters sent to the District, as well as the arrangement with the Agency (defined on page 20) (T. P43-P57). Parent’s Witness testified by affidavit speaking to:
Witness’s role and function at the Agency; the rate charged and what the rate is intended to cover; the services the Agency provided Student, and where the services took/take place; the Provider (defined on page 20) who provides the services to Student, and what the services entail; how progress is measured and the signs of progress displayed, as well as what the Student needs for the 2022-2023 SY. Parent’s Witness was also called to testify, who spoke: to Student’s learning challenges and current levels of performance; the recommendation for at least five periods of SETSS and why that was being recommended; the agreement with Parents in terms of which Parents are financially responsible for the Agency’s cost, although they can try obtain funding from the DOE; an error in Witness’s affidavit where it was stated that the Agency was providing five periods per week, whereas the Agency had in fact only been providing three period per week since September 2022 (T. P58-77). Both parties made oral closing statements on the record at the conclusion of Parent’s case (T. P78-P82).
ISSUE(S) IN DISPUTE
Based on District’s representative cross-examination and closing statement (T. P78-P80), the issues in dispute include: According to the New York Education Law, Parents have an affirmative obligation to request the services from the District for each new year by no later than June 1st of the proceeding school year and that the Parent failed to prove that Parents made the request for the services before June 1, 2020; speaking to the equities, it was asserted that there was no ten-day notice given the DOE; Parents failed to meet their burden to demonstrate the appropriateness of five period of SETSS is warranted; Parents failed to prove a financial obligation to pay; and that Parents failed to establish the qualification of the SETSS’ teacher. For these reasons, the DOE sought that Parent’s relief be denied (T. P80).
PREVAILING PARTY
Parent 1 is the prevailing party, and an award or Order is granted in her favor.
LEGAL FRAMEWORK
A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits [7].
If a procedural violation is alleged, an impartial hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits [8].
The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE [9], and default judgments are disfavored by the federal courts [10]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” [11].
School districts are not required to “maximize” the potential of students with disabilities [12], but must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement’” [13]. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” [14].
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, which exception does not apply in this case [15].
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents’ claim [16].
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 [17].
This case involves a parentally placed student with an IESP rather than an IEP. Students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP from the public school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them [18].
The IDEA does not confer entitlement to students enrolled in nonpublic schools to all the special education programs or related services such students would receive if they attended public schools. [19] Instead, the IDEA requires school districts to participate in a consultation process for making special education services available to students in nonpublic schools,[20] and to “allocate a proportional share of federal IDEA funds to provide special education and related services to parentally-placed private school children” with disabilities.[21] These “more limited services provided to parentally-placed children in private schools is commonly known as equitable participation, and is distinct from the FAPE requirement.” [22]
The IESP must be developed in the same manner and with the same contents as an IEP is developed. School districts are required to provide special education services pursuant to the IESP. Such services must be provided on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.
Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]. Per a New York State Education Department guidance document 23:
“The term "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. The new State legislation is intended to maintain the level of services provided to NYS nonpublic students with disabilities through IEPs. …
Accordingly, parentally placed nonpublic students must be provided services based on need 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. 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 student . . . ”
Where it is determined that IESP services were not appropriately provided on an equitable basis, the New York State Education Law permits a hearing officer 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]
The hearing officer “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” [27]
FINDINGS OF FACT AND DECISION
The DOE did not produce any exhibits for the main case, call any witnesses, attempt to defend its provision of the equitable equivalent of a FAPE to Student, and has failed to meet its burden of showing that it provided Student with the equivalent of a FAPE for the 2022-2023 SY, having conceded so.
23 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.
Based on the record and the concession made by the DOE, I find that the DOE’s failure to implement an IESP was tantamount to the denial of a FAPE, and that the IESP services were not appropriately provided on an equitable basis.
Parent 1’s failure to request services by no later than June 1st and failure to provide a ten-day notice:
District’s representative asserted that the Parent failed to prove that Parents made the request for the services before June 1, 2020. The provision in question provides that in the case of education for students with disabilities, such a request shall be filed with the trustees or board of education of the school district of location on or before the first of June preceding the school year for which the request is made[28] (my emphasis). This is different to what District’s representative asserts.
In evidence is a letter provided by Parent 1 to the District dated 12/28/2021 (Ex. P-D) in which Parent 1 requests “a CSE” for the Student. District’s representative sought to establish through cross-examination of Parent 2 that the letter merely sought to inform the District that Parent’s representative was providing authority for Parent’s representative to represent Parent 1 at the next meeting but was not calling for an “IEP meeting”. Besides Parent 2 stating under oath that the purpose of the letter was to request a meeting (which was corroborated by Parent’s Witness having been asked by Parents to have the Agency’s/Service Provider’s report(s) ready for a CSE meeting which did not materialize (T. P73)) and to see that they should get additional services (T. P52-P53), I also do not accept the interpretation that has been proposed of the contents of the letter.
“CSE” ordinarily stands for “Committee on Special Education”. On a pure reading of the letter, according the words its ordinary meaning, it would not make sense to “request a Committee on Special Education for” the Student. When reading the letter as a whole, it is clear that the author was calling for a CSE meeting. Firstly, the letter records that Parent 1 attended a meeting without her advocate on December 7, 2020. Parent 1 then wrote that she is “requesting that he attends the next CSE meeting” (my emphasis). Parent 1 expressly indicated in the letter that she was requesting Parent’s representative at the next “CSE meeting” and then wrote “Please make sure my advocate [Parent’s representative] receives an invitation to the CSE”. Given that Parent 1 expressed desire is to have Parent’s representative at the next “CSE meeting” and in the very next sentence calls for an invitation to “the CSE” to be sent to Parent’s representative, even providing his email address, there can be no doubt that Parent 1 used “CSE” to refer to a CSE meeting. Any other interpretation, especially the one proffered by District’s representative, fails to make sense of the entire contents of the letter, especially when reading each sentence in relation to each other.
Since this letter calls for the District to hold a CSE meeting for the Student and is dated December 28, 2021, it must have been to develop an appropriate program for the upcoming SY, namely 2022-2023 SY.
I find that this letter is sufficient to satisfy Parent’s obligation to file a request, in this case, before the first of June preceding the school year for which the request was made. I therefore do not find that Parent’s claims in the DPC should be dismissed for failing to make a request on or before the first of June preceding the school year for which the request was made.
District’s representative also raised Parent’s failure to provide a ten-day notice as an equitable factor in this case. It was common cause that the IESP from December 7, 2020, was the last IESP developed for Student (Ex. P-B). Despite two letters from Parent 1 calling for a CSE or CSE meeting (Ex. P-C, & P-D), the District never convened to develop a new program for Student. Even if a ten-day notice was provided, it is unlikely that it would have made any difference to how the DOE responded. Not only was that not asserted by District’s representative, but the DPC documents in two separate places that Parent requests a CSE to discuss program and services (Ex. P-A-2, & P-A-3). There is no evidence that the District convened a meeting either pursuant to Parent 1’s request in the two letters or pursuant to Parent 1’s two requests in the DPC, or after the DPC was filed any time before the IH was held. No evidence of any such CSE meeting having been held was provided. I therefore do not find that the failure to provide, in addition to all Parent’s requests, a separate “ten-day notice” an equitable factor relevant to reduce any award being made in favor of the Parent 1.
Claim for recovery at an “Enhanced Rate”: Notwithstanding my finding that the Student was denied the equivalent of a FAPE, and that the IESP services were not appropriately provided on an equitable basis, during the 2022-2023 SY, that is not the end of the enquiry.
The District challenged the rate being claimed by the Parent, namely the enhanced hourly rate in the sum of $185.00, speaking to the calculation and the credentials/certification of the SETSS provider [29].
It has been held that in approaching the dispute as to the recoverability of an enhanced rate, such disputes should as a practical matter be “effectively examined using a Burlington/Carter unilateral placement framework” and that “attempts that … do not use a Burlington/Carter analysis have tended to lead to chaos” [30].
Further that "parents who are dissatisfied with their child's education can 'unilaterally change their child's placement during the pendency of review proceedings' and can, for example, 'pay for private services, including private schooling.' They 'do so,' however, 'at their own financial risk.'
They can obtain retroactive reimbursement from the school district after the IEP dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test. A parent can obtain such reimbursement if: '(1) the school district's proposed placement violated the IDEA' by, for example, denying a FAPE to the student because the IEP was inadequate; (2) 'the parents' alternative private placement was appropriate'; and (3) 'equitable considerations favor reimbursement.'" [31].
Parent 2 testified at the IH. Parents also submitted into evidence an affidavit by the Parent’s Witness (Ex. P-F), as well as a printout of “Certificate” (Ex. P-G). District’s representative cross-examined both Parent 2 and Parent’s Witness.
A district is required by State law to locate and assign the student's publicly provided teachers for a dually enrolled student [32]. It has been found that the District's system for providing SETSS that requires the parent to seek out and arrange for a student's instruction by a special education teacher based on information the Parent acquired online is a violation of State law [33].
It has been held that "a board of education lacks authority to provide instructional services through an independent contractor"[34] and that the application of State law requiring that core instruction provided by a school district must be performed either by teachers who are employees of the district or pursuant to a contract for special education services that a district is specifically authorized by law to enter into [35].
It has also been held that “any notion of a public rate for independent SETSS instruction for this student that may be sanctioned in a policy of the district is flawed and cannot be reasonably relied upon by either party, because the district was not authorized to contract for the provision of an independent special education teacher” and that while “districts cannot deliver special education services called for by their educational programming in an unauthorized manner, due at least in part to the requirements that school officials and employees remain accountable under the statutory and regulatory mechanisms put in place by state and federal authorities, they can be made to pay for a privately obtained parental placement, a process that is essentially the same as the federal process under IDEA" [36].
Parent 2 testified as to Student’s academic struggles which had begun to impact Student’s behavior as Student got older, as well as other areas in life, and how Student could use more than the services that Student was receiving (T. P47).
Parent’s Witness stated in his affidavit inter alia that the Agency charges $195.00 per hour for 1:1 special education services, which rate was asserted to cover the costs of the Agency for the 2022-2023 SY, providing a breakdown of various factors covered (Ex. P-F-2 through P-F-4).
Parent’s Witness stated under oath (T. P60-P63) that, inter alia:
Student was in seventh grade performing on approximately fourth grade in ELA, reading, writing, comprehension, maybe even lower; in math Student was/is doing slightly better, more like at a fifth grade level; Student has fundamental challenges in performing in school from several areas, such as not having proper focus and concentration and that Student’s primary disability, or learning disability, was/is in the area of comprehension, or high order of thinking, and Student’s inferential thinking was/is extremely limited; that they (which I understood to be a reference to the Agency) did a lot of testing on Student’s style of learning, and that they have an understanding of Student’s challenges; that Student currently memorizes a lot of learning, bits, and pieces; because of Student’s limited focus and concentration, Student’s ability to memorize and understand things beyond the literal is severely impaired; and that despite being in seventh grade, Student only knows very concrete, black and white kind of material and has not developed conceptualizing (T. P60).
Student was/is making progress, although very slowly; that Parent’s Witness checked in again with the Service provider on the day of the IH, so see if there was anything updated in the past few weeks since they last discussed Student’s needs, and that Service Provider was recommending at least five periods of SETSS, if not even more than that; that Service Provider gave a detailed explanation of the specific recommendation why Student needs at least five periods of SETSS, namely that the school schedule has general studies for fourteen hours a week which makes the three hours of SETSS to be a small potion of the time that Student spends in class for general studies; that there are two areas that the Service Provider needs to cover with Student in order to be able to make effective and meaningful progress, namely: i) the huge academic gap which is very substantial and the primary work that Service Provider has, is to try to close the gap and attempt to connect Student to the classroom learning so that Student can, by pre-teaching and by summarizing the learning of what is currently in class, make Student feel somewhat connected; and ii) there is also skill acquisition in which Student has a tremendous deficit in fundamentally being able to understand the learning. So right now, Student was/is just functioning on memorizing, and Service Provider is working on Student being able to understand things, by pointing out, discussing stories, and working through skill by skill to develop that understanding that Student fundamentally misses.
So just working on closing the gap academically is not going to remediate what Student needs as far as developing Student’s ability to understand, or Student’s cognitive deficits; to truly be able to do all of these things, Service Provider felt more than five hours would be necessary, but that Student probably would not be able to focus and participate in more than five hours of learning, even if Student would benefit from it.
In cross-examination Parent’s Witness pointed out that, inter alia, that Parent 1 raised in the December 7, 2020 IESP (Ex. P-B-1) that Parent 1 believed back then that Student may need an increase in services from three to five SETSS periods per week and that it was now January 2023 and that there had been no new testing and nothing (from the DOE) to substantiate what the Student’s current needs were/are (T. P70-P71).
Significantly, it was also documented in the December 7, 2020, IESP that the issue of increased services would be considered at Student’s next annual review meeting after the disruption of the Covid19 Pandemic had subsided and new testing could be administered (Ex. P-B-1). It is unsurprising that the DOE conceded that it failed to provide Student with (the equivalent of) a FAPE, as this never occurred despite Parent 1 calling for the DOE to do what it said it would do, and which it was obligated to do under the regulations. In the circumstances, I find that Parent 1 has demonstrated that five period of SETSS is warranted for the 2022-2023 SY, contrary to District’s representative’s assertion that the burden fell on Parents in the first place and that they failed to prove it.
Since Parent 1 has not actually paid any money for which she must be reimbursed, this matter is “in a subset of more complicated cases in which the financial injury to the Parent and the appropriate remedy are less clear”. “The Second Circuit Court of Appeals has held that a direct payment remedy is an appropriate form of relief in some circumstances, and that "[i]ndeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework" [37].
I have no reason to doubt, based on the record, the assertion in the DPC that Parent 1 had no success securing a ‘DOE rate service provider’, and this was not placed in issue by the DOE at the IH. Parent 2 and Parent’s Witness both testified as to an obligation to pay for the SETSS provided by the Agency to the Student (T. P57, & P63). Even though the contract was not disclosed, this testimony is proof of an agreement between the Parents and the Agency that delivered SETSS providing that the Parents would ultimately be responsible for the costs of the SETSS. Cross-examination by District’s representative did not reveal another possibility.
In the present case, I find that the District has established on a balance of probabilities that the Service Provider, who has been providing SETSS to Student only held certification for “Student with Disabilities (Birth-Grade 2)” (Ex. P-F; T. P68).
I find that the evidence establishes that Service Provider was not certified for a child in seventh grade, being the Student’s grade at the time according to Parent’s Witness’s testimony. New York State Education Law section 3001 (2016) states that a provider should be licensed in the grade of the child, however, this applies to teachers being employed in public schools. The certification, or lack thereof, is however relevant when it comes to determining a reasonable rate for the services provided.
This is not the first time that such an issue has been before a hearing officer. Generally, teachers at a unilateral placement need not be State-certified38, there must however be objective evidence of special education instruction or supports that are specially designed by the student's providers at the private school who have reasonable qualifications that are specifically related to the student's deficits [39].
Parent’s Witness provided evidence of a general nature as to how the Agency assigned a SETSS provider to Student, and Parent 1 disclosed a progress report prepared by the Service Provider that provides evidence of special education instruction or supports specially designed by the Student's Service Provider who has reasonable albeit not perfect qualifications that are related to Student's deficits. I note that Service Provider appears to have a Master’s in Education (Ex. P-E-4) and according to Parent’s Witness is certified by NYS to teach students with disabilities and is trained and experienced to teach literacy and comprehension to school aged students and adolescents (Ex. P-F-4).
38 See Carter, 510 U.S. 7, 14, noting that unilateral placements need not meet state standards such as state certification for teachers. See also Application of a Student with a Disability, Appeal No. 12-125.
It was the DOE’s obligations to provide the services mandated on the Student’s IESP for the 2022-2023 SY, which Student was entitled to, and which the DOE was obligated to provide pursuant to Student’s pendency rights. Had Parent 1 done nothing, Student would likely not have received any services.
Based on the above factors, I find that a reasonable rate in the circumstances of this case for the SETSS to be funded to be an amount of $185.00. In the circumstances, Parent 1 is entitled to an Order for payment of the SETSS provided during the 2022-2023 SY at an enhanced rate but adjusted due to the above equitable considerations. District’s representative did not raise any express reason or objection to Parent’s representative’s request to include, as part of an order granted, that the CSE be ordered to reconvene.
Other than the relief set out in my Order below, I find that no basis and/or evidence in the record supports any additional relief.
ORDER
Based upon the above Findings of Fact, it is hereby:
1. ORDERED that, the DOE is directed (subject to #2 of this Order) to fund the Student’s SETSS for the 2022-2023 school year commencing on 09/01/2022 through to 06/30/2023 at the enhanced rate of $185.00, by issuing payment directly to the Agency, upon the submission of invoices for the SETSS rendered to the Student during the 2022-2023 school year, together with an affidavit referencing the Agency’s invoices and attesting to the provision of the SETSS provided to the Student for the period covered by each invoice, up to a maximum of 5 periods of SETSS per week for the 2022-2023 school year (i.e., the ten-month SY).
2. FURTHER ORDERED that, the DOE’s obligation to fund the Student’s SETSS ordered in #1 of this Order shall be reduced by any payments and/or hours of services provided for SETSS already made and/or provided or funded by the DOE to, or for and/or on behalf of, Student during or for the 2022-2023 school year under or in terms of the Pendency agreement reached (Ex. DOE-1).
3. FURTHER ORDERED that, the DOE’s Implementation Unit shall authorize all services hereby ordered within 15 (fifteen) days.
4. FURTHER ORDERED that, if the CSE has not reconvened since the impartial hearing held on January 11, 2023, it shall do so within 21 (twenty-one) days of the date of this Order to comply with its obligation under the IDEA to review the Student’s educational program and revise Student’s IESP, as appropriate [40], but which revised IESP shall not include an amount of SETSS to be provided to Student for the 2022-2023 SY at an amount less than five periods per week.
SO ORDERED.
DATED: February 21, 2023
__H.A.C._ (Signed Electronically)___
Impartial Hearing Officer
Harry A. Christodoulou
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’S EVIDENCE
1. Pendency Implementation Form 12/16/2022 2 pages DOE
PARENT’S EVIDENCE
A. DPC 09/08/2022 4 pages
B. IESP 12/07/2020 8 pages
C. CSE Letter 11/27/2020 1 page
D. CSE Letter 12/28/2021 1 page
E. Progress report 12/04/2022 4 pages
F. Affidavit 12/12/2022 5 pages
G. Teacher certification IHO’S EXIBITS Undated - - - APPENDIX REDACTED 1 page
Footnotes
[1] The DPC was filed on September 8, 2022, after business hours and is therefore reflected in the impartial hearing system (“IHS”) as being requested on September 9, 2022.
[2] The DPC erroneously refers to the 2021-2022 SY on page 2, but it is clear from page 1 of the DPC and the “case issues” in IHS that the case pertain to the 2022-2023 SY.
[3] 20 U.S.C. § 1400 et seq.
[4] 34 C.F.R. § 300 et seq.
[5] Educ. Law Art. 89 § 4404 et seq.
[6] 8 NYCRR § Part 200.
[7] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[8] 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[9] 20 U.S.C. § 1415[f][3][E][i].
[10] See Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]; G.M. v. Dry Creek Joint Elementary Sch. Dist., 595 F. App'x 698, 699 [9th Cir. 2014]; Jalloh v. Dist. of Columbia, 535 F. Supp. 2d 13, 19-20 [D.D.C. 2008]; and Sykes v. Dist. of Columbia, 518 F. Supp. 2d 261, 267 [D.D.C. 2007], as well as Application of a Student with a Disability, Appeal Nos. 20-167; 20-203 and 21-032.
[11] Rowley, 458 U.S. at 203.
[12] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.
[13] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[14] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[15] NYS Educ. Law § 4404(1)(c).
[16] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v.
[17] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].
[18] Provisions of section 3602-c; See also 34 CFR 300.130 and 300.145-147.
[19] See 34 C.F.R. § 300.137(a).
[20] See 34 C.F.R. § 300.134.
[21] 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.
[22] E.T. and D.T. ex rel. E.T., supra., at 11 (internal quotations and citations omitted); c.f. Application of a Student with a Disability, Appeal No. 20-115 (Sept. 3, 2020) at pg. 4 (noting that in a particular case the difference in applying a FAPE standard or an “equitable services standard” is a “distinction without a difference” where N.Y. Educ. Law § 3602-c “has been routinely treated . . . as providing eligible students with an individual right to special education services that must be tailored to the student’s particular needs by the CSE” that are then protected “through the due process hearing system called for by the IDEA” (internal citations omitted)).
[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]).
[25] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (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] NYS Educ. Law § 3602–c (2)(a)(1).
[29] In addition to the equitable consideration of Parent’s failure to provide the DOE with ten-day notice.
[30] Application of a Student with a Disability, Appeal No. 20-140.
[31] Ventura de Paulino v New York City Dept. of Educ., 959 F3d 519, 526-27 [2d Cir 2020] [citations omitted].
[32] Educ Law § 3602-c[2][a].
[33] See Application of a Student with a Disability, Appeal No. 20-115; Application of a Student with a Disability, Appeal No. 20-087; Application of a Student with a Disability, Appeal No. 20-140.
[34] Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeal of Woodarek, 46 Ed Dept Rep 1, Decision No. 15,422).
[35] See Bd. of Co-op. Educ. Servs. for Second Supervisory Dist. of Erie, Chautauqua & Cattaraugus Ctys. v. Univ. of State Educ. Dep't, 40 A.D.3d 1349, 1350 [3d Dep't 2007].
[36] Application of a Student with a Disability, Appeal No. 20-140.
[37] See Application of a Student with a Disability, Appeal No. 20-140 citing E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 [2d Cir. 2014]; also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 430 [S.D.N.Y. 2011] this latter case finding it appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, had not done so due to a lack of financial resources. See also Application of a Student with a Disability, Appeal No. 20-087.
[39] Application of a Student with a Disability, Appeal No. 20-140.
[40] (20 U.S.C. § 1414[d][4][A]; 34 C.F.R. § 300.324[b][1][i]; see also Educ. Law § 4402[2]; 8 NYCRR 200.4[f].