New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT & DECISION

Case No.: 241936

Student’s Name: [REDACTED] (hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Request by: Parent

Record Close: [REDACTED]

Hearing Officer: Guljit Kaur Bains

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about November 8, 2022 (P-Ex. A). The DPC alleged that the Department of Education (“DOE”, “NYCDOE “or “District”) failed to provide the Student with a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing the Student with services during the 2022-2023 school year (“SY”) (P-Ex. A).

Parent seeks a final order directing the DOE to directly fund five periods per week of special education teacher services (“SETTS”) delivered to the student for the SY to the parent’s chosen provider, [REDACTED], at the $200 per hour rate they charge for such service, or in the alternative, at a reasonable market rate. (Parent Closing Brief)

The Parent is seeking an increase in services from three periods of SETTS per week to five periods per week for the SY, The Parent seeks “preferably the five periods that that we are requesting, but if not, then at least the three periods per week directly funded to the Parents' provider at the rate of $200 per hour. In the alternative, if the IHO finds that there is insufficient evidence to support that specific rate, we would also accept a rate of reasonable market rate for the SETSS services.” (Tr. 65-66) (P-Ex. A)

The District opposes the Parent’s relief requested.

PROCEDURAL HISTORY/POSITION OF THE PARTIES

The undersigned Hearing Officer was appointed to the above matter on January 6, 2023. The District presented documentary evidence (D-Ex.’s 1 -5). The Parent presented documentary evidence (P-Ex.’s A-F) which includes the testimony of one witness, made an opening statement and submitted a written Closing Brief. This IHO ‘s listed Exhibit is I, the Pendency Order I issued on May 7, 2023, after a Pendency Hearing.

The Parent asserts that entering the school year, the last Individualized Education Services Program (IESP) that the (DOE) created for the student was dated March 29, 2017, which provided for three periods of SETSS, direct group service per week. (P-Ex. B) On January 24th, 2023 the DOE developed a new IESP that recommended the same exact services, SETSS for three periods per week. (D-Ex. 2) The Department of Education only recommended three periods of SETSS per week, based on both IESPs that were in effect for the school year, whereas the Parent maintains that the student required five periods per week for the SY. (P-Ex. A-F)

The parent asserts that the DOE itself did not provide a provider for the SETSS services, whether it be three or five periods per week. The parent contracted with a company to provide these services and that company charged the rate of $200 per hour. (P-Ex. D, and F) The parent should not be responsible to fund services that the DOE is required to provide and therefore, the parent should be awarded direct funding at the charged rate of $200 per hour, or, in the alternative, a reasonable market rate for the SETSS services. (Parent Closing Brief)

FINDINGS OF FACT

The Student was [REDACTED] years old and who was parentally placed at a private school during for the SY. A Pendency Hearing was held in this matter on May 5, 2023 and a Pendency Order was issued on May 7, 2023 based upon the March 29, 2017 IESP which recommended services of SETSS, Direct Service, Group Service, , Five periods per week; SLT, Individual Service, Language of Service: English 3 time(s) per week Period. (IHO Ex. I)

The evidence submitted in this matter does not include any documentary or testimonial evidence that the Parent provided notice requesting services from the District by June 1st 2022 prior to the school year commencing.

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). 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.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that 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.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student’s recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998). Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o 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, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA.” In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”

Under New York State Education Law section 3602-c, students with disabilities who are 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. The CSE of the district of location must develop an IESP in the same manner and with the same contents as an IEP. See, Memorandum from James P. DeLorenzo, re: Chapter 378 of the Laws of 2007, New York State Education Department, Sept 2007. A parent who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location. See, Id. at 5.

While the statutory scheme of Education Law section 3602-c places the responsibility of selecting and placing the student in a nonpublic school on the parent, the implementation of the services called for by a student’s IESP falls on the district 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]). See, Application of Student with a Disability, SRO Appeal 16-008. 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.” Id. Additionally, unlike the provisions of the IDEA, 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. Id.

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]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

However, under State law, parents of a student with a disability who have privately enrolled 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 (Educ. Law § 3602-c[2]). "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" Empasis added. (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services 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 § 3602c[2][b][1]). 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 (id.). 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. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).

ANALYSIS

Here, the Student is parentally placed, the Department of Education opposed the relief requested, Parent failed to notify the District for the requested services by June 1 before the fall of 2022. There is no documentary evidence that demonstrates the Parent notified the District at any time prior to filing the DPC.

Parent request the DOE to directly fund five periods per week of SETTS delivered to the student for the 2022-2023 school year to the parent’s chosen provider, [REDACTED], at the $200 per hour rate they charge for such service, or in the alternative, at a reasonable market rate is DENIED.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered: ORDERED, Due Process Complaint against the New York City Department of Education for the SY is dismissed.

DATED: October 31, 2023

Guljit Kaur Bains, 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.

For the Student:

[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

For the District:

[REDACTED] [REDACTED]

DISTRICT EVIDENCE

1. Due Process Complaint 11/08/2022 6 pgs. DOE

2. Individualized Education Services Program 01/24/2023 10 pgs. DOE

3. Individualized Education Services Program Meeting Attendance Sheet 01/24/2023 1 pg. DOE

4. Individualized Education Services Program Conference Minutes 01/25/2023 2 pgs. 5 SESIS Events Log Undated 8 pgs. DOE

PARENT EVIDENCE

A. Impartial Hearing Request November 8, 2022 6 pages

B. Individualized Education Services Program March 29, 2017 9 pages

C. Teacher’s Certification February 23, 2023 1 page

D. Parent Service Contract September 1, 2022 2 pages

E. Progress Report January 11, 2023 3 pages

F. Affidavit of [REDACTED] June 8, 2023 1 page

IHO EXHIBIT

I. Pendency Order dated 05/07/2023.