New York City Department of Education, Impartial Hearing Decision

NYSED # 586340 NYC# 237771

FINDINGS OF FACT AND DECISION

Case Number: 237771

Student’s Name: REDACTED

School Location: redacted

Impartial Hearing Officer: Patricia Peña, Esq.

Date of Filing: 09/12/2022

Hearing Requested by: Parent

Date of Hearing: 11/17/2022

Record Close Date: 12/26/2022

Date of Decision: 12/26/2022

PROCEDURAL HISTORY

Parent, through counsel, filed a Due Process Complaint (“DPC”) on or about 09/12/2022. Parent alleges that the Department of Education (“DOE”) failed to offer Student a free appropriate public education (“FAPE”) for the 2022-2023 school year. Specifically, Parent alleges that the DOE failed to hold an IEP meeting and failed to offer Student a placement for 2022-2023 school year. (IHO Exhibit 1). By way of relief, Parent seeks an order of pendency based on an IEP dated 2/3/2016 and an order requiring the DOE to fund the services mandated in the 2016 IEP for the 2022-2023 school year.

I was appointed on 10/17/2022. A prehearing conference was held virtually on 10/28/2022. (IHO Ex. 1). No one appeared on behalf of the DOE. Parent stated that a resolution meeting had not been held and that the DOE had failed to file a response to the DPC. (IHO Exhibit 2). On 11/17/2022, both parties appeared virtually for a hearing. The attorney who appeared on behalf of the DOE was assigned to the case earlier that morning, did not seek to introduce witness testimony nor other evidence, but made an opening statement and cross-examined Parents’ witnesses. (See Tr. 5-11; IHO Exhibit 4). Parent submitted exhibits A through J into the record over DOE’s objection. DOE objected to the exhibits on the basis that the exhibits were untimely. The exhibits were admitted into evidence since DOE failed to make a timely objection. (IHO Exhibit 3). Two witnesses testified for Parent and were available for cross examination and clarifying questions; Student’s Parent and REDACTED, the Educational Director of REDACTED testified for Parent.

In its opening statement, DOE argued that the educational program Student is receiving is not appropriate and that Student is not entitled to services for the 2022-2023 school year because Parent did not make the request for services by June 1st as required under New York Education Law 3602-c. (Tr. 11-12). Parent argued that: 1) the DOE failed to provide Student with a FAPE for the 2022- 2023 school year by failing to hold an IEP meeting; 2) Education Law 3602-c does not apply because Student is entitled to an IEP; 3) Parent unilaterally placed the child because DOE has failed to address Student’s disability needs; 4) it is not the Parent’s burden to show that the program is appropriate since this was the program previously recommended by the DOE; 5) the services in the 2/3/2016 IEP appropriately address Student’s needs; and 6) the equities weigh in favor of Parent. (Tr. 13-15). Both parties submitted written closing briefs.

In light of the foregoing and as more fully discussed below, I find that Student is entitled to pendency from September 12, 2022, the date the instant DPC was filed^[1] and find that the DOE failed to meet its burden that it offered Student a FAPE for the 2022-2023 school year.

Background

Student is a 10-year child with autism. (IHO Exhibit 1). Student attends a private school where he’s attended since the age of 3. (Tr. 35). Student’s last IEP meeting was in 2017. At the time, Student was classified as a “Preschool Student with a Disability.” (IHO Exhibit 7). Student’s Present levels of Performance and Individual Needs indicate that Student has difficulty with expressive language; use of pronouns and gender; and recalling information told to him. Student struggles with maintaining attention and has difficulty with pretend and play skills. Id. Delays were noted in the area of fine motor skills. Id. Furthermore, Student’s September 8, 2022, Progress report, indicates that Student continues to present himself with cognitive, language and social/emotional deficits. (Parent’s exhibit G).

Pendency The Individuals with Disabilities Education Act (“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 district otherwise agree, during the pendency of any proceedings relating to the identification, evaluation, or placement of the student.^[2] 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.^[3]

Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement.^[4] Although not defined by statute, the phrase “then-current educational placement” has been found to mean either:

• • the placement described in the student’s most recently implemented Individualized Education Program (“IEP”);
• • the operative placement actually functioning at the time when the due process proceeding was commenced; or,
• • the placement at the time of the previously implemented IEP.^[5]

The Second Circuit has stated that placement means “the general type of educational program in which the child is placed,”^[6] and that “the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers.”^[7] If there is an agreement between the parties on the student’s pendency placement during the due process proceedings it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student’s then-current educational placement.^[8]

Parent asserts that Pendency arises from the last agreed upon IEP dated 02/03/2016 which mandated the following services: special education itinerant teacher services for 20 hours per week in a 2:1 setting, Speech and Language Therapy 4 times per week for 30 minutes and Occupational Therapy 3 times per week for 30 minutes. (Tr. 39; Parent’s Exhibit B). At the hearing, DOE stated that it would have to review the IEP and history of any FOFDs before taking a position on Pendency. (Tr. 39-40). In its closing brief, DOE did not take a position on Pendency. (See IHO Exhibit 5). Since DOE did not take a position on the issue of Pendency, I credit Parent’s assertion that the last agreed upon IEP is the 02/03/2016 IEP and find that Student is entitled to Pendency retroactive from 09/12/2022, the date the DPC was filed.

FINDINGS OF FACT

On 06/17/ 2022, Parents sent a letter to REDACTED, CSE redacted representative advising that the last IEP meeting for her son was held in March 2017. In this letter, Parent expressed concern about the last recommended program; a 12:1+1 class in a specialized school. Parent stated that her son requires a 12-month program to prevent regression and that if left if no other option, Parent would continue Student’s SEIT and related services at DOE’s expense. (Parent’s Exhibit C). DOE did not dispute receipt of the letter or its content.

Student attends a Private School where he receives 20 hours of SEIT services as well as related services in speech language therapy and occupational therapy. Student has two SEIT providers; REDACTED and REDACTED (“SEITs”). REDACTED, the Educational Director of the agency that employs the providers testified via affidavit that he supervises he supervises the SEIT providers; assigns educators to prospective students and ensures that the teacher assigned to a student has the expertise needed to meet a student’s specific needs; and that the sessions Student receives require a “great deal of specialized instruction.” (Parent’s Exhibit J-1). He testified that the SEITs are certified by NYS to teach students with disabilities and are trained and experienced to teach literacy and comprehension to school aged children and adolescents. Id. at J-2.

However, on cross examination and clarifying questions, the Education Director testified that the supervisor is the one who typically assigns the provider to students and could not recall if he assigned Student’s providers to him; and could not elaborate on the type of specialized instruction Student receives as he would have to check with the supervisor. (Tr. 20-27). As such, I do not find the Educational Director’s testimony wholly credible. When questioned about the expiration of one of the provider’s certificate, he testified that he did not know the details of that. In its closing brief, Parent maintained that both providers are certified educators in New York and referenced Parent’s Exhibit E-2 to indicate that only REDACTED transitional B and initial certificates expired but that his professional certificate for Students with Disabilities Birth – Grade 2, Grade 1-5, and bilingual Extension are valid. (IHO Exhibit 6). I am not certain that this assertion is borne out by the evidence. The certification for SEITs consist of a 3-page document. It is difficult to ascertain the SEITs credentials as the certificates appear to be screen shots of a database that does not capture all of the information on one page. (Parent’s Exhibit E). It does appear that one of the SEIT providers has an internship certificate to work with students with disabilities from birth to 2nd grade. Id. at E-1.

With regard to the rate the agency charges, the Educational Director testified that his agency charges between $160.00 and $190.00 depending on how much supervision is needed, how many hours student has, and the needs of the student, but was unable to provide a concrete response regarding how the agency came up with the rate of $185.00 for Student in this case (Tr. 28- 30).

LEGAL FRAMEWORK

The IDEA provides that children with disabilities are entitled to a FAPE.^[9] 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”).^[10] 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.^[11] In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”^[12] An IEP must be reviewed at least annually ^[13] and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year.^[14]

For procedural violations, a denial of FAPE only occurs “if the procedural inadequacies (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.”^[15] Further, “In each case, after determining that a FAPE has been denied, the courts looks to whether the parents’ private placement is appropriate to the child’s needs and to the equities.” ^[16]

Furthermore, pursuant to New York’s “dual enrollment” statute, Educ. Law §3602-c, New York State resident students are entitled to an individualized education services program (“IESP”) developed by the school district where the nonpublic school is located and the IESP must be developed in the same manner and with the same content as an IEP. The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools.^[17] 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.^[18] 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]."^[19] In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking reimbursement for a unilateral private placement has the burdens of production and persuasion on the appropriateness of such placement.^[20]

ANALYSIS

DOE contends that Student is not entitled to the relief sought because Parent failed to make a timely request for services for the 2022-2023 school year. (IHO Exhibit 5). Parent on the other hand asserts that New York Education Law is not applicable in this case; that Student had an IEP the last time Parent met with the District and that since neither the Parent nor the DOE took any action to initiate the IESP process, the burden remains with the DOE to hold an annual CSE/IEP meeting and provide FAPE. (IHO Exhibit 6).

It is undisputed that Student is in a private school for the 2022-2023 school year and that Parent seeks the services mandated in the 2016 IEP. It is also undisputed that the last IEP meeting was held in March 2017. There is nothing in the record to suggest that Student has been evaluated since 2016/2017 or that either DOE or Parent have made any attempts to hold an IEP or IESP meeting since 2017. Parent asserts that they have written to the DOE every year since 2017 asking for an IEP meeting but there is no evidence of this in the record, just the 06/17/2022 letter. There is nothing in the record to explain what’s transpired since 2017 or what if anything DOE did in response to the 06/17/2022 letter.

Although privately placed students are not individually entitled under the IDEA to receive special education and related services they would have received if enrolled in public schools, districts are required under the IDEA to participate in the consultation process for making special education services available.^[21] Student was classified by the DOE as being a student with a disability and therefore, regardless of how you describe Student’s entitlement to services; whether pursuant to an IEP or IESP, the District has an obligation to review a Student’s IEP “not less than annually.”^[22] I find the District’s failure to develop an IEP/IESP and failure to hold a meeting for the 2022-2023 school year, constitutes a denial of FAPE.

Furthermore, in cases such as this one where a parent has not yet paid for provider services and is seeking direct funding rather than reimbursement, the State Review Office (“SRO”) has held that these cases can only be effectively examined using a Burlington/Carter framework.^[23] I agree with the analysis in this decision and similar SRO decisions that liken these situations to tuition reimbursement cases.

SRO has held that when the parent has not already paid the SETSS provider, and seeks direct funding rather than reimbursement, the “matter is in a subset of more complicated cases in which the financial injury to the parent and the appropriate remedy are less clear.^[24] Because the Parent had to find the provider on her own and because “caselaw supports reimbursement and direct remedies in a unilateral placement case,” the SRO has determined that the question of whether a SETSS provider should be directly paid is somewhat similar to the Burlington/Carter framework, which “forecloses any complete disavowal of the parent’s burden of production and persuasion related to the private, unilateral services obtained by the parent.”^[25] Thus, in a case such as this, where the central issue is whether a third-party SETSS provider selected by a parent should be remunerated with an enhanced rate over what the Department normally pays, the Parent’s evidence must be scrutinized, consistent with my obligation and equitable authority to ensure that the remedy “be appropriate in light of the purpose of the Act.”^[26] The evidence therefore must show that the SETSS providers’ rates are reasonable and appropriate under the circumstances.

Depending on the circumstances of a student’s needs and the qualifications and specialty of the provider, rates of $150 per hour, ^[27] $175 per hour,^[28] and even $200 per hour have been upheld,^[29] so I do not find the rate requested per se unreasonable. The cases have also held, however, that while “[g]enerally, teachers at a unilateral placement need not be State-certified... there must be objective evidence of special education instruction or supports that are specially designed by... providers... who have reasonable qualifications that are specifically related to the student’s deficits.”^[30]

Here, Parent seeks a rate of $185 for SEIT services. On 06/13/2022, 3 days before Parent’s letter to the CSE, Parent signed a letter of agreement whereby Parent is liable to the Provider Agency for any services provided to Student. (Parent’s Exhibit H). The Educational Director testified that the agency charges between $160 and $190 per hour depending on Student’s needs and amount of supervision required. The rate also takes into account the market rate, office overhead, and delays in getting funding. Providers are paid between $80 and $90. (Tr. 28-30).

While there was no evidence offered as to what is considered market rate and DOE did not contest the rate charged, a rate ranging from $160 to $190 while providers are only getting paid between $80 and $90 appears to be somewhat excessive and unreasonable in this case. The Educational Director did not appear to be entirely knowledgeable about Student’s needs, the type and/or difference in instruction provided by the SEITs, or how his agency came up with the rate of $185 per hour for Student. Additionally, only one of the SEITs has an internship certificate to work Students with Disabilities from birth to the second grade. Not only is Student in 5th grade, but Parent did not define what “internship” means in this context and whether an internship certificate is something less than a full certificate. Furthermore, there is no evidence regarding the length of time the SEITs worked with Student and little evidence of how Student has benefited from working with the SEITs. Therefore, based on the record before me, I find that the appropriate rate in this case shall not exceed $125 per hour.

Generally, I find that the equities favor the Parent. Although Parent’s assertion that they have written to the DOE every year since 2017 is not corroborated by the record, DOE did not offer any evidence to explain its efforts to develop an IEP/IESP or hold a CSE meeting since 2017.

ORDER

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

• • The DOE shall fund pendency services retroactive to the date of the filing of the DPC (9/12/22), pursuant to the 02/13/16 IEP, specifically:
• • Special education itinerant teacher services 20 x 60, 2:1
• • Speech-Language Therapy 4 x 30
• • Occupational Therapy 3 x 30
• • The DOE shall convene a CSE meeting within 60 (sixty) days of this order to create an IEP and/or IESP.
• • The DOE shall directly fund the above services at a rate of $125 per hour for the 2022-2023 school year within thirty (30) days of provider’s submission to the DOE of any invoices for such services.
• • The DOE shall continue to directly fund these services for the 2022-2023 school year until such time as the DOE convenes and recommends a program and placement for Student.

Dated: 12/26/2022

Patricia Peña, Esq. (signed electronically)

____________________________________

Impartial Hearing Officer

Patricia Peña, Esq.

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

Exhibit

Title

Date

Pages

1.

None

PARENT EVIDENCE

Exhibit

Title

Date

Pages

A Due Process Complaint 8/17/22 4

B CPSE IEP 2/3/16 7

C Letter to CSE 6/17/22 1

D Provider Affidavit 11/02/22 1

E Provider Certification Undated 3

F 2021 Parent W2 Undated 1

G Student Progress Report 9/8/22 2

H Letter of Agreement 6/13/22 1

I Parent Affidavit 11/10/22 1

J REDACTED Affidavit 11/15/22 2 IHO EXHIBITS Exhibit

Title

Date

Pages

1.

Due Process Complaint

9/12/22

4

2.

Pre-Hearing Summary and Order

10/28/22

9

3.

Emails Between the Parties & IHO

Various

4.

DOE NOA

11/17/2022

1

5.

DOE’s Closing Brief

12/9/2022

11

6.

Parent’s Closing Brief

12/9/2022

7

7.

5/11/2017 IEP

5/11/2017

13

Footnotes

[1] As part of Parent’s exhibits is a DPC dated July 5, 2022, with Case No. 229887. I take judicial notice of the fact that this DPC was withdrawn on 9/8/22. The DPC before me was filed on 9/12/22 and is assigned case No. 237771.

[2] U.S.C. § 1415(j); NY Educ. Law §§ 4404(4), 4410(7)(c); 34 CFR § 300.518(a); 8 NYCRR § 200.5(m); see Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 (E.D.N.Y., Oct. 30, 2008); Bd. of Educ. v. O'Shea, 353 F. Supp. 2d 449, 455-56 (S.D.N.Y. 2005); Application of a Student with a Disability, Appeal No. 14-024; Application of the Dep't of Educ., Appeal No. 08-061.

[3] 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).

[4] Mackey v. Bd. of Educ., 386 F.3d 158, 163 (2d Cir., 2004), citing Zvi D., 694 F.2d at 906.

[5] Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 (2d Cir. 2016), quoting Mackey, 386 F.3d at 163; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 (2d Cir. 2015) (holding that a student's entitlement to stay-put arises when a due process complaint notice is filed); Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 (3d Cir. 1996); Letter to Baugh, 211 IDELR 481 (OSEP 1987).

[6] Concerned Parents v. New York City Dep’t of Educ., 629 F.2d at 753, 756 (2d Cir. 1980).

[7] T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 171 (2d Cir. 2014).

[8] Bd. of Educ. v. Schutz, 290 F.3d 476, 483-84 (2d Cir. 2002); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 (S.D.N.Y. 2000), aff'd 297 F.3d 195 (2d Cir. 2002); see also Letter to Hampden, 49 IDELR 197 (OSEP 2007).

[9] U.S.C. § 1400 (d)(1)(A)

[10] U.S.C. § 1401(9)

[11] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982)

[12] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017)

[13] C.F.R. §300.324(b)(1)(i)

[14] NYCRR §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772F. Supp. 2d 500, 508 (S.D.N.Y. 2010)

[15] U.S.C. §1415(f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2)

[16] T.K. v. New York City Dep’t of Educ., 810 F.3d 869

[17] See 34 CFR 300.137(a)

[18] Educ. Law §3602-c(2)

[19] Educ. Law §3602-c(2)(b)(l)

[20] NYS Educ. Law §4404(1)(c)

[21] See 34 C.F.R. §300.134.137(a), (c), 300.138(b)

[22] NYCRR 200.4(f)

[23] Application of a Student with a Disability, Appeal No. 21-119.

[24] Application of a Student with a Disability, Appeal No. 20-115 (citing E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 [2d Cir. 2014] [holding that equitable considerations allow for direct payment for tuition where the parents were legally obligated to make payments but had not done so due to a lack of financial resources]).

[25] Id.

[26] East Lyme Bd. of Educ., 790 F.3d at 454 (citation omitted).

[27] At the due process hearing, the Parent’s attorney cited Application of a Student with a Disability, Appeal No. 11-045 (July 25, 2011), which awarded a SETSS rate of $150 per hour 11 years ago. According to the U.S. Department of Labor’s Bureau of Labor Statistics, Consumer Price Index Inflation Calculator (found at <https://www.bls.gov/ data/inflation_calculator.htm>, last visited May 8, 2022), $150.00 in July 2011 has a purchasing value of $190.89 as of March 2022 (the latest month calculable). See Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 A.D.3d 13 (2nd Dept. 2009) (judicial notice may be extended to government websites that provide official data).

[28] See, e.g., Application of a Student with a Disability, Appeal No. 21-138 at pp. 12-13 (Aug. 11, 2021) (determining that “there is no basis for a finding that the rate of $175 was unreasonable” but affirming a lower SETSS rate where it was further found that the Parent’s actions warranted a reduction, including that the parent did not provide a ten-day notice per 20 U.S.C. § 1412[a][10][C][iii] and 34 CFR § 300.148[d][1]).

[29] Application of a Student with a Disability, Appeal No. 21-183, at pp. 20-21 (Oct. 29, 2021) (approving compensatory SETSS by a bilingual reading specialist at a rate not to exceed $200 per hour).

[30] Application of a Student with a Disability, Appeal No. 20-140.