NY IHO #240786: Impartial Hearing...

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FINDINGS OF FACT AND DECISION

Case Number: 240786

Student’s Name: REDACTED

School District: N.Y.C. Dept. of Ed.,

Impartial Hearing Officer: Teril Holston, Esq.

Date of Filing: October 20, 2022

Amended: March 3, 2023

Hearing Requested by: Parent

Date of Hearing: April 27, 2023, May 18, 2023 Record Close Date: June 16, 2023

Date of Decision: June 16, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

April 27, 2023

none

NAMES AND TITLES OF PERSONS WHO APPEARED

May 18, 2023

For the Student:

REDACTED

Witness: REDACTED, Educational Director REDACTED, Parent

For the Department of Education:

REDACTED

INTRODUCTION

This matter comes before the undersigned Hearing Officer at the request of Petitioner, the parent of the student, a REDACTED-year-old school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”); New York State Education Law; and the New York State regulations.

On October 20, 2022, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) alleging that the District failed to provide the student with a Free and Appropriate Public Education (“FAPE”) for the 2022-2023 school year, in that the District failed to convene a CSE meeting or implement the recommendations of the student’s April 19, 2021, IESP (P-A)1. On March 3, 2023, the DPC was amended to further allege that the parent disagreed with the April 18, 2021, IESP and believes the student requires additional special education support (P-D). As a remedy, the Petitioner is seeking direct payment to the providers at a reasonable market rate, compensatory services for any periods not provided during the current school year, and reevaluation of the student (Id.).

In light of the foregoing and as more fully discussed below, I find that the DOE failed to meet its burden that it offered the student FAPE for the 2022-2023 school year and the parent is entitled to relief.

PROCEDURAL HISTORY

On January 3, 2023, the undersigned was appointed to conduct an impartial hearing. On January 25, 2023, a settlement conference was held with the parties and another IHO.

Parties agreed to submit memoranda of law in support of their positions (IHO-I; IHO-II; IHO-III). On April 27, 2023, the virtual impartial hearing on the merits of the DPC was scheduled but adjourned, The hearing commenced and concluded on May 18, 2023. It was a closed hearing and the record closed on June 16, 2023.

At the hearing, the District’s representative presented no documentary evidence and did not call any witnesses, in support of its case. The District gave a brief opening statement indicating that the District had no case to present but the parent was not entitled to relief.

1 Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.

The Parent, through their attorney, submitted documents (Ex. P-A though P-L),^[2] including the affidavit testimony of the parent, the Educational Director of the agency, and the Financial Administrator, in support of the Parent’s case. All of the documents were entered into evidence without objection. The parent rested and both parties gave brief closing statements.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

FINDINGS OF FACT

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

The student is a REDACTED-year-old classified by the CSE as student with Speech or Language Impairment (P-B). On April 19, 2021, the CSE convened and recommended group Special Education Teacher Support Services (SETSS), three periods per week, Direct Service, Group, Yiddish and Speech—Language Therapy, 2x30:1 (id). The IESP fails to explain how the services would be provided to the student (P-B).

The parent testified, via affidavit, that he believed the student’s IESP recommended services are insufficient to meet their academic needs and requires extra assistance to maintain the mainstream placement (P-E). The parent provided Ten-Days’ Notice on October 20, 2022, the same date as the original filing (P-A; P-C).

The parent was unable to find a SETSS provider for the student at the DOE publicized rate and the District did not provide one (P-E). The District also did not provide a speech therapist (P-E). The parent sought out a private agency to implement the SETSS and Speech— Language Therapy (P-E; P-F; P-G). The student’s SETSS provider and Speech—Language Pathologist are all qualified and the student has been making progress (P-H; P-K; P-L).

The Educational Director testified, via affidavit, that the agency provides SETSS at the rate of $197 per hour and Speech-Language Therapy at the rate of $225 per hour (P-F). It would pose a financial hardship for the parent to pay for the services and await reimbursement (P-E). Further, the provider creates goals and monitors the student’s progress (P-F). Despite making progress, the student still requires SETSS weekly (Id.).

On November 9, 2022, the parent requested a requested an IEP meeting to discuss increases the students SETSS services (P-I). On January 25, 2023, the parent signed a consent for the student to be evaluated but has not heard from the District regarding the evaluation (P-E; PJ).

APPLICABLE LEGAL STANDARD

FAPE

The Individuals with Disability Education Act (“IDEA”) establishes that students with disabilities are entitled to a free and appropriate education (“FAPE”).^[3] A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.”^[4] In order to demonstrate that a FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.”^[5] The student's recommended program must also be provided in the least restrictive environment with non-disabled peers.^[6]

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE7. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."^[8] “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”^[9] Further, “an IEP is not a form document” and it should be constructed after carefully evaluating the student.^[10] Privately Placed/ Homeschooled Students

7 20 U.S.C. § 1415[f][3][E][i].

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)(1)(A); Educ. Law § 4402(2)(a), (b)(2)). However, 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 NY State law, parents of a disabled student who have privately placed their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the district of location 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.^[11]

The implementation of IESP services falls on the district of location insofar as "boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent."^[12]

In these instances, the Committee on Special Education (“CSE”) of the district where the nonpublic school is located must review the request for services and “develop an individualized education service program [“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)(1)). The CSE “shall 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” (id.). 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 (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.

The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of proof at an impartial hearing is on the district, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement ^[13]. Accordingly, the district

18F bears the burden here.^[14] 19F

DISCUSSION

As a preliminary matter, the burden of proof lies with the District. Here, the District argued that the parent failed to demonstrate that equitable services were requested or that the privately attained services were appropriate for the student. The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). Therefore, I find that the District has the burden of proof to demonstrate it offered the student a FAPE. June 1st Applicable

The parent contends that the District failed to provide services for the 2022-2023 school year. At the Due Process Hearing, the District declined to call any witnesses or offer any documents into evidence in its case in chief. There is no evidence in the record that the district provided the student with the any of the services recommended in the IESP dated April 19, 2021, for the 2022-2023 school year. There was testimony provided by the parent that the parent sought out special education services from a private provider and is financially responsible for the cost of those services if the parent is unsuccessful in this due process hearing.

While the Parent claims that the District failed to develop an IESP for the student for the 2022-2023 school year and therefore should be held liable for failing to provide the student a FAPE, the hearing record supports the conclusion that the parent did not request an IESP by June 1, 2022, in accordance with Education Law § 3602-c. Education Law § 3602-c, requires that parents who seek to obtain educational services for students with disabilities who are parentally placed in private school to file a written request for such services on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602c[2][a], [2-c]).

Other than the current due process complaint and the 10-day notice, both submitted after June 1, 2022, the parent failed to provide any additional testimony or evidence to demonstrate that the parent provided the District any notice whatsoever of the Parent’s intent to privately place the student or that the District is being requested to provide services for the 2022-2023 school year under Education Law § 3602-c. June 1st Waiver

The District argued that due to the parent’s failure to submit a written request for special education services for the student prior to June 1st the student is not entitled to services (Educ. Law § 3602-c(2)). The parent’s representative argued that the District waived the June 1st deadline through its conduct and its failure to raise the defense earlier, and should therefore be barred from raising it as a defense now.

The SRO has adapted the “clear and unmistakable” waiver standard found in N.L.R.B. v. New York. Tele. Co., 930 F.2d 1009 (2d Cir. 1991).^[15] Such a waiver can be implied, if a party is aware of their rights, by express language, agreement or conduct of the parties (id.).

There is no dispute that the parent failed to request special education services before June 1, 2022, or that the District failed to provide the services. Further, parent’s argument that the June 1st deadline does not apply because the District didn’t send a notice to the parent by April 1st, as indicated in the District’s Standard Operating Procedure Manual lacks persuasion. Despite argument as such, the parent failed to submit any evidence to evince that the District waived the June 1st deadline, as alleged.

Child Find

The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made.16 The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services".^[17] The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade".^[18] To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children.^[19]

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. Dist. of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability".^[20] To support a finding that a child find violation has occurred, school officials must have "overlooked clear signs of disability" and been "negligent in failing to order testing," or have "no rational justification for deciding not to evaluate" the student.^[21] States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education".^[22] Additionally, a school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and 16 see Handberry v. Thompson, 446 F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 CFR 300.111; 8 NYCRR 200.2[a][1], [7] programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program.23

Here, the District did not comply with its child-find obligations during the 2022-2023 school year. As explained herein, the District was on actual notice that this student has a disability that previously impeded the student’s ability to learn requiring remediation. The District cannot essentially bury its head in the sand because the parent didn’t inform it that the student would be attending private school. The appropriate action in this case would have been for the District to convene an IEP meeting and recommend a public school placement and services, if warranted. The hearing record shows that the student exhibited signs of a disability that gave the district reason to suspect that the student had a disability and required special education to address that disability.

FAPE

Accordingly, in this case, the DOE failed to meet its burden. The District presented no relevant documents into evidence and called no witnesses to demonstrate it provided the student with a FAPE. Subsequently, the hearing record fails to demonstrate how the District provided a FAPE. A review of same offers no explanation as to how the CSE made its recommendation, how the outdated IESP appropriately describes the student, or whether the IESP is meaningfully calculated to confer educational benefit. Per the parent’s affidavit testimony, the District did not provide a special education teacher or speech therapist, and the District failed to offer any evidence to the contrary (P-E). Further, the District failed to schedule an evaluation for the student to address the parent’s concerns.

In short, the District declined to “offer a cogent and responsive explanation for their decisions” in creating that IESP, and it is “through the IE[S]P that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”.24 Therefore, the undersigned is constrained to find that the District failed to offer the student a FAPE for the 2022-2023 school year. Thus, the parent is entitled to relief on behalf of the student.

Relief

As relief, the parent requests funding for equitable services at an enhance rate for the 2022-2023 school year, a bank of hours for services missed, and an evaluation of the student.

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim.^[25] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA.^[26] Generally, a remedy for a deficiency in equitable services under State law should be similar to a remedy for deficient services under the IDEA.

Here, there is no actual dispute as to the appropriateness of the SETSS and Speech— Language Therapy, as the parent’s requested services are identical to those recommended in the last agreed upon IESP entered into this record. Therefore, the District’s argument that the services sought by the parent are inappropriate is without merit.

In this case, the hearing record demonstrates that the student’s individual special education needs can be addressed by the implementation of the District’s recommendation of services in the prior IESP. The student’s providers are qualified, and the student has made progress (P-E; P-F). Of note, the District offered no evidence concerning the appropriateness of the requested services, nor challenging the enhanced rates of the providers. Further, the District had the opportunity to cross-examine the parent’s witnesses and object to any evidence entered into the record. Under these circumstances, I find that the parent’s witness is credible and find no issue with the reasonableness of the rates.

Courts have determined that in IDEA claims, IHOs have the discretion to grant appropriate relief.^[27] The only restriction is that “the relief is to be appropriate in light of the purpose of the Act.”^[28] “Equitable considerations are relevant in fashioning relief and the court enjoys broad discretion in so doing.”^[29] An award of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies have been deemed appropriate.^[30]

While, the record supports a finding that the student is entitled to services, the formulation of the recommended hours should not disregard in its entirety the program and related services to be provided to the student as a whole, over the school year in issue. Lastly, any award shall consider the nature of the violation and the impact the award may have on the child’s educational needs.^[31]

The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED, the DOE failed to provide Student a FAPE for the 2022-2023 school year.

IT IS HEREBY ORDERED, the New York City Department of Education is directed to fund the following special education services for the Student, by issuing payment directly to the providers within thirty (30) days of the submission of copies of the invoices for such services rendered:

• Special Education Teacher Support Services (“SETSS”) in a group, 3 periods per week; at reasonable market rates consistent with rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office for comparable services within the six (6) month period prior to the date of this Order.

• Speech-Language Therapy, 1x30:1 per week; at reasonable market rates consistent with rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office for comparable services within the six (6) month period prior to the date of this Order.

• 22 hours of Compensatory Speech—Language Therapy, at reasonable market rates consistent with rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office for comparable services within the six (6) month period prior to the date of this Order, to be scheduled at the parent’s discretion, not to expire until 18 (eighteen) months from the date of this Order. IT IS HEREBY ORDERED, the New York City Department of Education is directed to continue to provide the student’ special education services as recommended in the April 19, 2021, IESP. IT IS FURTHER ORDERED that the District is to schedule all necessary evaluations within 30 days of this order, and the CSE is to reconvene within 10 days of the completion of all educational evaluations and develop an IEP or IESP for the student, classifying the student as supported by the evaluative data collected and recommend an appropriate program with related services consistent with the recommendations (frequency and duration) of the evaluations.

DATED: SO ORDERED

6/16/2023 /s/ Teril Holston

Teril Holston, Esq., IHO

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.

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

I, Teril Holston, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.

DATED: CERTIFIED BY

6/16/2023 /s/ Teril Holston

Teril Holston, Esq., IHO

APPENDIX A – REDACTION IDENTIFICATION PAGE

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APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT’S EXHIBITS