New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 587492 - NYC: 238777

NEW YORK CITY DEPARTMENT OF EDUCATION

IMPARTIAL HEARING OFFICE

STUDENT, by and through his/her PARENT(S), ^[1]

Petitioner(s),

- against -

Case No. 238777

THE NEW YORK CITY DEPARTMENT OF EDUCATION,

Respondent

Record Close Date: 02/15/23

FINDINGS OF FACT AND

DECISION

HASHIM RAHMAN, Hearing Officer:

The Petitioner^[2] is the Parent of a Student, placed in a non-public school, who requires special education services. (See Pet’r’s Ex. A at 1, Ex. B at 13. 3) On September 19, 2022, the Petitioner filed a due process complaint (“Complaint”) against the New York City Department of Education (hereinafter “DOE” or Respondent). (See Ex. A at 7.) In the Complaint, the Petitioner asserts, inter alia, that the DOE failed to develop an appropriate educational services plan for the Student for the 2022-2023 school year. (Id. at 1-2.)

The undersigned hearing officer was appointed for this matter on November 29, 2022. (See IHO Ex. I.) A prehearing conference was held on December 16, 2022, (see Hr’g Tr. 1-13); a status conference was held on January 4, 2023, (see id. at 15-19); and a due process hearing was held on January 9, 2023, (see id. at 21-85).

3 Even though the most recent educational plan was not offered into evidence, a private placement shall be presumed given that the Complaint refers to an “IESP” [or Individualized Education Service Plan]. (See Pet’r’s Ex. A at 2.)

THE DUE PROCESS COMPLAINT

The Complaint states that the Student’s special education teacher support services (“SETSS”) and other related services were reduced through a 2022 “IESP” [or Individualized Educational Service Plan]. (Pet’r’s Ex. A at 2.) As per the Complaint, the Student was receiving eight periods of SETSS per week prior to the 2022 IESP. (Id.) The Petitioner asserts that the Student was denied an appropriate education on account of the reduction in services, and relief is requested in the form of reimbursement and direct funding.^[4] (Id. at 2-3.)

THE DUE PROCESS HEARING

I. Facts and Assertions by the DOE

At the due process hearing, the DOE did not present any documentary evidence or witnesses. (See Hr’g Tr. 35.) The DOE’s Counsel claimed that she was not provided with the Petitioner’s disclosures prior to the hearing date. (See id. at 26-28, 38-39.) As noted on the record, the Petitioner’s Counsel sent evidence to the email redacted on January 3, 2023. (Id. at 38.) Nonetheless, at the hearing I stated, incorrectly, that the said email address was the only one on record at the time of the disclosure. (Id.)

This is inaccurate because the case appointment notice lists the DOE contact as redacted. (See IHO Ex. I.) Thus it is unclear why the Petitioner’s Counsel sent evidence to the aforementioned CSE6 email address. (See IHO Ex’s II-III.) Nonetheless, since the CSE6 email is a DOE email address, the Petitioner’s documents shall be deemed admitted for consideration. ^[5] Despite the DOE’s lack of evidence, Counsel did cross examine the Petitioner’s sole witness and raised questions regarding the agency and the expertise of the SETSS Instructor. (See Hr’g Tr. 45-53, 71-72.)

II. Facts and Assertions by the Petitioner

At the hearing the Petitioner asserted that the only relief being sought is reimbursement and funding for [privately-obtained] SETSS. (Id. at 80.) The Petitioner presented four documents and one witness. (Id. at 21-22.) The documents, proffered as exhibits, included the Complaint, a 2021 IESP, a teacher certificate, and a document entitled “Parent Service Contract.” (See Pet’r’s Ex’s A-C, E.) The 2021 IESP states that the Student has been parentally placed in a private school and was recommended for eight periods of SETSS per week. (See Pet’r’s Ex. B at 10, 13.) The teacher certificate indicates that the SETSS Instructor is certified in the area of “Student with Disabilities (Birth – Grade 2).” (See Pet’r’s Ex. D.) The “Parent Service Contract,” which bears no discernable signatory names or execution dates, indicates that a “Parent . . . confirms” liability for SETSS delivered by the Education Agency during the 2022-2023 school year at a rate of $195 per hour. (See Pet’r’s Ex. E at 1-2.) Despite this document’s representation as a binding contract, the Counsel said that the Petitioner is “only asking for a reimbursement at market rate for the eight periods of SETSS . . .” (Hr’g Tr. 74.)

The Petitioner’s sole witness, the Program Director, said that the Education Agency has been in existence for three years; she has been its director for two years; and the agency is running on a deficit. (Id. at 51-52.) The Program Director also said that the Student is in 9th grade; the SETSS Instructor is certified to teach “up until 2nd grade[;]” she did not know how long the SETSS instructor has been certified; and she said that the instructor is the only SETSS teacher with the agency. (Id. at 47, 49.) When asked who provides professional training and supervision, the Program Director responded as follows: “So sometimes, supervision would be myself, sometimes it would be with a different supervisor, and the training would be by different professionals.” (Id. at 58-59.) When asked to describe the professional training, she said it “would kind of depend on the particular student.” (Id. at 58.) She added, “So in this case, . . . the professional development would be furthering reading instruction, reading fluency, reading/writing comprehension, and we provide the training to the providers – to [the SETSS Instructor].” (Id.) The Program Director also said that she signed the document shown in Exhibit E a few weeks before the hearing. (Id. at 66.)

ANALYSIS

I. General Legal Framework

Under the Individuals with Disabilities Education Act (“IDEA”), an educational agency must offer a free and appropriate public education (“FAPE”) to each student with a disability residing in the state. 20 U.S.C. § 1412(a)(1)(A). The IDEA defines FAPE as “special education and related services that have been provided at public expense, under public supervision and direction, and without charge . . .” that meet state standards and are provided in conformity with IEP requirements. 20 U.S.C. § 1401(9). However, the IDEA confers no 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). Furthermore, a due process hearing officer does not have jurisdiction over FAPE issues for students enrolled in private schools by their parents (see 34 C.F.R. § 300.140(a)), subject to a child-find exception (see id. § 300.140(b)). This is because the IDEA’s due process hearing rights do not apply to such privately-placed students. See 34 C.F.R. § 300.140(a).

Nonetheless, in New York, a school district 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. L. § 3602-c(2)(b)(1). Furthermore, if a parent properly requests such equitable services, the school district must develop an IESP in the same manner as an IEP.

Id. Also, under New York law a parent has the right to seek review of an IESP and commence a due process hearing if equitable services are denied, and a due process hearing officer does have jurisdiction to decide such issues. See id.

Since the Student in the present case has been parentally placed in a private school, the case at bar pertains to equitable services under New York education law rather than FAPE under the IDEA. It is nonetheless prudent to use what is known as the Burlington-Carter analysis to reach a conclusion on the merits. See Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985) ("Burlington"); Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12 (1993) ("Carter"). Under the Burlington-Carter analysis, the determination of whether a parent is entitled to reimbursement for a private educational program is based on the three-prong test "which looks to (1) whether the school district's proposed plan will provide the child with a free appropriate public education; (2) whether the parents' private placement is appropriate to the child's needs; and (3) a consideration of the equities." C.F. ex rel. R.F. v. N.Y.C. Dep't of Educ., 746 F.3d 68, 73 (2d Cir. 2014). The Burlington-Carter test has also been used for cases pertaining to third-party educational service providers. See In re: Student with a Disability, Appeal No. 20-140, 120 LRP 31098 (N.Y. SRO Sept. 23, 2020); In re: Student with a Disability, Appeal No. 20-099, 120 LRP 31070 (N.Y. SRO Sept. 21, 2020); In re: Student with a Disability, Appeal No. 20-094, 120 LRP 31066 (N.Y. SRO Sept. 9, 2020). The test has also been utilized for consideration of a SETSS reimbursement request in an equitable services case, like the one here. See New York State Educational Agency, Appeal No. 22-088, 122 LRP 41392 (N.Y. SRO Sept. 6, 2022).

II. Equitable Services

In the present case, prong one of the three-part Burlington-Carter test shall be focused on a determination on whether equitable services under New York law - rather than FAPE under the IDEA - was provided. With respect to this prong, the DOE bears the burden of proof. See EDUC. L. § 4404(1)(c). Here, the DOE presented no documentary evidence and no witnesses. (See Hr’g 35.) It also did not make any arguments asserting that equitable services were provided. (See id. at 35, 71-73.) Given this, the DOE has failed to meet its burden and I thus find that equitable services were not provided to the Student.

III. Appropriateness

For the second prong of the test, the Petitioner bears the burden of proving whether the unilateral placement in private educational services was appropriate. See EDUC. L. § 4404(1)(c). The appropriateness of placement hinges on whether it is "reasonably calculated to enable the child to receive educational benefits." Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006), (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)). “No one factor is necessarily dispositive in determining whether parents' unilateral placement” is reasonably calculated to confer educational benefits to the child. Frank G. at 364-365. To qualify for reimbursement a parent “need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child . . .” Id., (quoting Rowley, 458 U.S. at 188-89).

In the present case, I find that the Petitioner has not established that the unilaterallyobtained SETSS were appropriate. To meet the burden on appropriateness the Petitioner was required to prove that the SETSS instruction was “specially designed to meet the unique needs” of the Student. See Rowley, 458 U.S. at 188-89. Here, the SETSS instruction was not even generally designed to meet the Student’s needs. For instance, the Student is in high school but the SETSS Instructor is certified to teach special education to children up to the second grade. (See Pet’r’s Ex. C.) Logically, there is a significant difference between the second and ninth grades.

Furthermore, the Program Director’s account of professional development for the SETSS Instructor was far from convincing. Her descriptions of what constitutes training and of who participates in training were vague. (See Hr’g Tr. 58-59) Furthermore, it is unclear how the Program Director, who has been at the agency as director for only two years, is qualified to be one of the trainers for the agency’s sole SETSS Instructor. (See id. 49, 51-52.)

It is also difficult to ignore that there was no testimony from the SETSS Instructor. His credentials were placed at issue yet he was never presented as a witness. Additionally, no testimony of the Petitioner herself was provided with respect to the SETSS Instructor or anything else for that matter. For these and other reasons evident in the record, I find that the Petitioner has not established that the privately-obtained SETSS were appropriate. Thus neither reimbursement nor funding is warranted.

An analysis for the equities prong of the Burlington-Carter test is not needed given that the Petitioner has not met her burden for prong two.

CONCLUSION

I find that the DOE has failed to provide equitable services to the Student. I also find that that the Petitioner failed to establish that the privately-obtained SETSS were appropriate.

Accordingly, all relief requested by the Petitioner is denied and the case is hereby dismissed.

Dated: 02/15/23

SO ORDERED

/s/

HASHIM RAHMAN,

HEARING OFFICER

Sent via Email to All Parties

APPENDIX A – PETITIONER’S EXHIBITS

A. Due Process Complaint 09/19/22 7 pages

B. IESP 05/07/22 13 pages

C. Teacher Certificate 07/08/22 1 page

D. Program Director Affidavit 01/02/23 3 pages

E. Parent Service Contract APPENDIX B – HEARING OFFICER EXHIBITS undated 2 pages

I. Notice of Appointment 11/29/22 2 pages

II. Petitioner’s Email re. Disclosures 01/03/23 1 page

III. DOE Notice of Appearance APPENDIX C – TERMS AND REFERENCES [INTENTIONALLY OMITTED] 01/04/23 1 page

Footnotes

[1] Personally identifiable information has been removed from this decision but is shown in the appendix.

[2] The name of the Petitioner has been described inconsistently in documents presented. (Compare Pet’r’s Ex. A at 1 with Pet’r’s Ex. D at 1. See also, IHO Ex. I.) It should also be noted that the first name of the Student is stated to be the last name of the Petitioner. (See Pet’r’s Ex. A at 1.)

[4] The Complaint describes other related services that were reduced and proposes a resolution that covers more than SETSS reimbursement. (See id. at 2-3.) However, at the hearing the Petitioner’s Counsel stated that only SETSS reimbursement was being sought. (Hr’g Tr. 79.)

[5] It should further be noted that after being informed that the Petitioner disclosed evidence on January 3, 2023, to the CSE6 email, the DOE Counsel did not raise a specific objection under the five-business day rule set forth in 8 N.Y.C.R.R. § 200.5(j)(3)(xii). (See Hr’g Tr. 38-39.)