New York City Department of Education, Impartial Hearing Decision

Case Number: 586419 – NYC: 237827

Student’s Name: REDACTED

District of Private

School Location: N.Y.C. Dept. of Ed., District # XX

Impartial Hearing Officer: Elana Soleimani

Date of Filing: 09/12/2022

Hearing Requested by: Parent

Date of Hearing: 02/16/2023

Record Close Date: 03/21/2023

Date of Decision: 03/22/2023

FINDINGS OF FACT AND DECISION

BACKGROUND

The Parent, through counsel, filed a Due Process Complaint(“DPC”) on or about February 27, 2023. (P-A)

Parent alleges that the Department of Education (“DOE”) failed to implement an individualized education plan (“IEP”) for the 2022-2023 school year. Id. The Parent seeks an award compelling the DOE to continue to fund the program as provided for in the IEP.

In light of the foregoing and as more fully discussed below, I find that the DOE failed to implement the IEP, thereby denying the Student a free appropriate public education (“FAPE”) on an equitable basis for the 2022-2023 school year, and that the relief Parent seeks is appropriate.

PROCEDURAL HISTORY

I was appointed on November 15, 2022. A prehearing conference was held virtually on November 23, 2023.

On February 16, 2023. both parties appeared virtually for a hearing. The DOE did not seek to introduce witness testimony nor any other evidence. The DOE conceded it had failed to offer the Student an appropriate education for the school years at issue, specifically stating “with regards to prong I we’re not defending prong I”. (Tr. P11 L5-6) Parent submitted ten (10) exhibits into the record on consent of the DOE. Included in Parent’s evidence were two (2) affidavits, one from Parent and one from Provider. Both affidavits were accepted into the record. Parent rested and the DOE advised that it had no further statements to make, testimony or documents to offer. Both parties waived closing statements.

FINDINGS OF FACT AND DECISION

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

It is uncontested that the Student and Parent reside in New York City and the Student attended the Private School during the 2022-2023 school year. Furthermore, it is uncontested that the Private School is located within the geographic boundaries of the DOE. The Parent did not challenge the content of the IEP, merely the lack of delivery of the recommended services.

Burden

Except for in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing (Educ. Law § 4404(1)(c); see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014))

FAPE

The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (20 U.S.C. § 1401(9)). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

Dual enrollment

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412(a)(l)(A); Educ. Law§ 4402(2)(a), (b)(2)). The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137(a)). Under State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c(2)). Then, the district of location's CSE must review the request and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law§ 3602-c(2)(b)(l)).

Here, there is no dispute that the Student is entitled to services pursuant to the IEP dated June 14, 2021. (P-B) Parent alleges, and credibly testified that the DOE failed to implement 10 sessions per week of Special Education Itinerant Teacher (SEIT) services, group and individual speech language therapy (SLT), occupational therapy (OT), physical therapy (PT) and parent counseling, and the DOE, which bears the burden of proof, has failed to introduce any evidence to the contrary.

The implementation of IESP^[1] services fall 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.

A district cannot be absolved of its statutory obligation to implement services for the student simply by being inactive in implementing the mandated services. The DOE had the obligation to provide services to the Student in conformity with the IESP^[2] (Educ. Law§ 3602c(2)(a), (b)(l); In failing to do so, the DOE failed to provide the Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.

Parent testified via affidavit (P-I) as follows: Student is [REDACTED] years old and struggles with pragmatic language delays, attention deficit, rigidity with transitions and resisting non-preferred activities, is very self-directed and small motor skills such as writing are behind for his age. Student’s last agreed to program provided for a 1:1 SEIT and related services, specifically 10 hours of SEIT services, 3X 30 Occupational Therapy (OT), 3 X 30 Physical Therapy (PT) and 3 X 30 Speech Language Therapy (SLT) per week.

In December 2020, Parent obtained a neuropsychological evaluation for Student. Student was re-assessed by the same neuropsychologist in May 2022. The May 2022 evaluation found that there is a variability in Student’s academic abilities; he has strengths in reading and complex language processing and expression, attention as well as social pragmatics. 3 Parent shared this evaluation with the “turning [REDACTED]” team. Parent participated in a “turning [REDACTED]” meeting on May 11, 2022. At the IEP meeting the “turning [REDACTED]” team determined that Student’s needs were too great for a placement in a public-school setting for kindergarten. Instead, the team advised they were making a deferral to the DOE’s Central Based Support Team (CBST) for placement in a full-time special education program with a New York State Non-Public School (NPS). Parent then received a list of nine (9) possible NPSs and was told that those interested would contact them. Five (5) schools contacted Parent. Parent visited and/or contacted each of the five schools with an open mind and hope that one could offer Student an appropriate program for the 2022-2023 school year. However, no appropriate program or placement was offered. The IEP team did not reconvene to offer a specific NPS, and Parent did not receive a placement notice offering a specific school site. On August 4, 2022, another IEP meeting was convened in which Parent participated. During this meeting, the IEP team advised that they had to change the program recommendation from a deferral to CBST, to a 12:1:1 class in a District 75 School, because placement at an NPS had not been secured by CBST. Parent never received a school placement notice offering a specific D75 School where a 12:1:1 program could be implemented. Student attends Private School, a mainstream school setting for children aged two to six. Parent is not seeking tuition reimbursement for Private School. Student requires the SEIT to continue to make progress.

The Attorney for the District cross-examined the Parent. She testified additionally as follows: Parent explained that at the second IEP meeting in August, she was told that the D75 recommendation did not change what setting would be appropriate for Student, but that it was an administrative step that had to be done because the CBST couldn’t secure a school.

Parent presented additional testimony via affidavit of the Student’s SEIT. (P-J) She testified as follows: SEIT is a New York State Licensed teacher for students with disabilities. She first met Student in July 2022. SEIT currently provides student with 10 hours per week of 1:1 SEIT services. When she first started working with Student he required high levels of support for transitions, attending to teacher directed tasks and social interactions. After working with Student for eight (8) months, he is more tolerant of teacher-directed tasks for non-preferred activities. However, he does continue to struggle with compliance and frustration tolerance, issues which she continues to work on with Student. Student receives his SEIT services in a general education classroom. Student is not able to be at school without SEIT support. He continues to require consistent support and 1:1 instruction throughout his school day as his reactions and moods can be unpredictable.

The attorney for the District cross-examined the witness and she testified further as follows: SEIT is briefly aware that there are special education teacher support services (SETSS). She feels that Student still requires SEIT services, even though he is above the age, due to his learning nature and his behaviors at school. Student is a child where every day looks different for him, every activity looks different, so that he requires someone always around to help him get through the day, not always 1:1 but sometimes he does require a direct service.

I find the testimony of both the Parent and the Provider credible.

I have considered both parties’ positions and find that the Student should have received instruction under the IEP dated June 14, 2021. As there is no dispute as to the appropriateness of the IEP recommendation, this same number of sessions are appropriate to put the Student in the position they would have been in but for the DOE’s failure to implement the IEP.

Although State regulations do not require that a student who had previously been identified as a preschool student with a disability remain in a preschool program for which he or she is no longer eligible by reason of age (8 NYCRR 200.16[h][3][i]; see 8 NYCRR 200.5[m]), SROs have long noted that the IDEA makes no distinction between preschool and school-age children and consequently, if a student is no longer eligible to remain in a particular preschool program, the district remains obligated to provide the student with "comparable special education services during the pendency of an appeal from the CSE's recommendation for [the student's] first year of education as a school age child" (Application of a Child with a Handicapping Condition, Appeal No. 91-25; see Henry v. Sch. Admin. Unit No. 29, 70 F. Supp. 2d 52, 61 [D.N.H. 1999] [holding that when a student has aged out of a particular program, the district "must fulfill its stay-put obligation by placing a disabled student at a comparable facility"]; Application of a Student with a Disability, Appeal No. 16-020; see also Makiko D. v. Hawaii, 2007 WL 1153811, at *10 [D. Haw. Apr. 17, 2007]; Laster v. Dist. of Columbia, 394 F. Supp. 2d 60, 65-66 [D.D.C. 2005]; Letter to Harris, 20 IDELR 1225 [OSEP 1993]). In a proceeding such as this where SEIT services are at issue for a school-aged student, the substance of the services is, in essence, the provision to the student of educational services by a special education teacher who assists the student in addition to the classroom program. Accordingly, the ten (10) hours per week of SEIT services recommended in the June 2021 IEP shall for purposes of implementation be deemed the provision of 1:1 special education teacher support for the student.

There is no evidence or claim made by the DOE asserting or suggesting that the Parent failed to cooperate with the DOE or interfered in any manner with the DOE’s obligation to provide the Student with a FAPE on an equitable basis for the 2022-2023 school year.

ORDER

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

(1) The DOE shall fund, as compensatory relief, the following services for the 2022-2023 school year:

(a) Ten (10) hours of Special Education Itinerant Teacher (SEIT) services, by a provider of the Parent’s choosing at a reasonable market rate.

(b) Two (2) thirty (30) minute sessions of individual SLT and one (1) thirty

(30) minute group session of SLT, by a provider of the Parent’s choosing at a reasonable market rate, (c) Three (3) 30-minute individual sessions of both occupational therapy and physical therapy per week, by a provider of the Parent’s choosing at a reasonable market rate.

(d) One (1) sixty (60) minute parent counseling session per month, by a provider of the Parent’s choosing at a reasonable market rate.

(2) The DOE shall reimburse the Parent for the cost of the services described above within thirty (30) days of submission of proof of payment; and,

(3) The DOE shall pay to the Providers upon receipt of invoices for services rendered.

(4) To the extent such services, as described in Paragraph (1) above, are not provided to the Student by June 30,2024 any remaining services shall expire.

(5) The DOE shall convene a CSE within forty-five (45) days to develop an appropriate IEP or IESP in advance of the 2023-2024 school year.

SO ORDERED

March 22, 2023 Elana Soleimani, Esq

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DISTRICT EVIDENCE

None

PARENT EVIDENCE

A. Request for Impartial Hearing 09/12/2022 9 pages

B. CPSE IEP 06/14/2021 20 pages

C. Authorization of the IEP-Change Letter 06/06/2022 1 page

D. Related Services Annual Report 04/15/2022 13 pages

E. Occupational Therapy Annual Report 02/01/2022 11 pages

F. Physical Therapy Annual Report 04/15/2022 12 pages

G. Preliminary Psychoeducational Evaluation Various dates 9 pages

H. Psychoeducational Evaluation Addendum Various dates 9 pages

I. Affidavit-Parent 02/13/2023 7 pages

J. Affidavit-Provider APPENDIX 02/10/2023 3 pages

Redacted Information Term Used In FOFD

REDACTED Student

REDACTED Parent/Guardian

REDACTED Parent Attorney/Representative

REDACTED District Attorney/Representative

REDACTED

REDACTED Private School REDACTED Service Provider REDACTED District

Footnotes

[1] although Student in this case was issued an IEP, that is a function of Student’s age. Student is in a NPS (Non-public school) and falls under Educ, Law § 3602-c.

[2] Here an IEP comprehension which help to show his cognitive ability and potential but also weaknesses in 3 It should be noted that Parent did not include the May 2022 neuropsychological evaluation in their disclosures or enter the document into evidence.