New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 598527 - NYC: 247546

FINDINGS OF FACT AND DECISION

Student’s Name: 1 REDACTED (“student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: REDACTED (“Parents”)

Request Date/Date Complaint Filed: 04/17/2023

Date(s) of Hearing: 07/19/2023

Actual Record Closed Date: 07/27/2023

Date of Decision: 07/28/2023

Date of Distribution if Different than Decision Date: N/A Hearing Officer: Leah Martin, Esq.

Time Sensitive: No

1 Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 19, 2023

For the Student:

REDACTED (“Parents’ Counsel”), REDACTED (“Parent”), REDACTED (“Educational Director”)

For the Department of Education:

REDACTED (“DOE Representative”), REDACTED (“DOE Resolution Manager”)

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC") filed on April 17, 2023. (Ex. A).^[2] In the DPC, the Parents allege that the Department of Education (“DOE”) failed to fulfill its equitable duties in the development and implementation of an educational program for the student under the Individuals with Disabilities Education Act (“IDEA”) and Section 3602-c of the Education Law for the 2022-23 school year. (Ex. A-1).

I was appointed on April 19, 2023. On May 18, the parties^[3] appeared virtually for a pre-hearing conference (“PHC”). Pendency was raised in this matter. (Ex. A-1-2). At the PHC, the parties indicated that they were working towards a potential resolution and needed more time to do so. (See PHC Transcript). At the PHC, a schedule was set for the parties’ pendency submissions. (See PHC Transcript). Parents emailed their pendency submission on May 18 and the DOE did not respond by the May 25 deadline. (See PEND Exhibits). On May 26, a Pendency Order was issued directing the DOE to provide two weekly sessions (2x30x1 in English) of speech language therapy (“SLT”), one weekly session (1x30x1 in English) of occupational therapy (“OT”), non 1:1 nursing services for all school days in school (as needed), and a full-time individual health paraprofessional for diabetes management pursuant to the student’s 6/28/21 Individualized Education Services Program (“IESP”). (See Order on Pendency; Ex. B-7).

On June 29, 2023, the parties^[4] appeared virtually for a status conference. (SC Transcript 6.29.23). The parties advised that they had been unable to reach a resolution. (SC Transcript 6.29.23). The parties jointly requested and were granted an extension for witness unavailability, and a hearing date was set. (SC Transcript 6.29.23; Order of Extension). Hearing issues and evidence were discussed at that conference. (See SC Transcript 6.29.23). DOE Representative requested that the Parent be made available for questioning at the hearing, and Pre-hearing Parent Counsel agreed to make him available. (SC Transcript 6.29.23, p. 10-11). At the conference, the DOE raised the issue/defense of whether there was an appropriate request for equitable services in this case. (Id. at p. 12-13). Since the DOE had raised the issue of a timely request for equitable services, the parties were both advised to provide evidence of a timely June 1st request for equitable services at the hearing. (Id. at p. 13-14). Following that directive, the parties were asked whether there were any questions regarding what evidence was expected, and they both indicated that they had no questions. (Id. at p. 14).

On July 10, Parents submitted disclosures labeled A through E. (See Parents’ Disclosures). On July 12, the DOE submitted disclosures with nine exhibits.^[5] On the morning of the hearing, the DOE submitted revised disclosures, including an additional proposed exhibit (Ex. 10). (See DOE Belated Disclosure Email).

On July 19, 2023, the virtual due process hearing (“DPH”) was held. It was a closed hearing. Parent was present and represented by Parents’ Counsel. DOE Representative was also present. DOE Exhibits 1-3 and 5-9 6 were admitted into evidence. (Tr. 13-14).^[7] Parents’ Exhibits A-B and D-E^[8] were admitted into evidence. (Tr. 19). The DOE presented one witness (“DOE Resolution Manager”). ^[9] Parents presented two witnesses (Educational Director and Parent). Educational Director gave direct testimony by affidavit (Ex. E) and appeared at the DPH for cross examination. Parent gave live testimony.^[10] Oral closing arguments were made on the record.^[11] (Tr. 24-32; 88-93). Parents’ Counsel was directed to submit additional documentation from Service Provider,^[12] to be added to the record as IHO Exhibits upon receipt.^[13] (Tr. 68, 93-94). The record was closed on July 27, after receipt and review of the hearing transcript.

JURISDICTION

The due process hearing (“DPH”) was held, and a decision in this matter is being rendered, pursuant to the 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 §§ 3602-c, 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

The student is currently classified as a student with Other Health Impairment (“OHI”). (Ex. A-2). The student is now REDACTED years old and has been attending a private school (“Private School”).

6 At the request of Parents’ Counsel, proposed Exhibit 4 (emails regarding excusing the special education teacher from the 2021 CSE meeting) was excluded due to lack of relevance and Exhibit 10 (Independent Provider Rate List) was excluded due to its belated disclosure. (Tr. 6-13; see also DOE Disclosures; DOE Belated Disclosure Email). (Ex. A-1-2). The student has received special education services on an equitable basis in prior school years. (Ex. A-2; Tr. 81). The last time the DOE held a review meeting of the committee on special education (“CSE”) and developed an IESP for the student was June 28, 2021. (Ex. A-1-2; Tr. 22). The 6/28/21 IESP is the last-agreed-upon program for the student, and it forms the basis of his pendency program, as described above. (Ex. A-1-2; Tr. 2; Order on Pendency).

The student has type 1 Diabetes, which requires a full-time health paraprofessional for glucose monitoring during school. (Ex. A-2; Tr. 73-76).^[14] Parents contend that the DOE failed to develop or implement an IESP for the student for the 2022-23 school year, so Parents were forced to find a provider. (Ex. A; Tr. 32). Parents entered a service contract with a private provider (“Service Provider”) to provide the student’s health paraprofessional services for the 2022-23 school year. (Ex. D; E-2-3). Parents are seeking direct payment to the Service Provider, at an enhanced rate of $65 per hour, for services rendered during the 2022-23 school year. (Ex. A-3; E-2-3; Tr. 32, 93).

ISSUES

Here, there is no dispute that the DOE did not develop or implement an IESP for the school year at issue (2022-23). Rather, the issue is whether the DOE was obligated to develop or implement an IESP, which turns on whether there was a timely written request for equitable services by the June 1st deadline and whether the DOE has implicitly waived the June 1st deadline. At the hearing, the DOE argued that Parents did not make a timely written request for equitable services by the June 1st deadline, so the DOE was not obligated to develop an IESP, and the student was not entitled to equitable services for the 2022-23 school year. (Tr. 25, 88-89). Parents’ Counsel conceded a lack of written request^[15] for equitable services but argued that the DOE should be found to have implicitly waived the June 1st deadline. (Tr. 29-32, 92).

The DOE additionally argued that, should I find that the student was entitled to receive equitable services, any award should be reduced due to equitable considerations. (Tr. 26-27, 90-91). Specifically, the DOE contends that the lack of written request for equitable services, the lack of Ten-Day Notice from the Parents, and the excessiveness of the Service Provider’s hourly rate (which they claim “far exceeds the market rate”), are equitable considerations that weigh against the Parents. (Tr. 26-27, 88-92). Parents’ Counsel argued that the equities favor the Parents because the DOE knew of the student’s needs and did nothing. (Tr. 93).

Although the DPC also alleges (in conclusory fashion) a failure to appropriately evaluate the student, this claim was not raised by Parents at the hearing, either in opening or closing statements, or through testimony. Accordingly, that claim has been abandoned. The DPC also requests that the DOE provide direct funding for the student’s additional related services, consistent with the pendency program. (Ex. A-3). However, the claim for additional funding beyond the paraprofessional was not raised by Parents at the hearing, either in opening or closing statements, or through testimony. Accordingly, that claim has also been abandoned.

FINDINGS OF FACT

After a full review of the record generated at the hearing, I make the following findings of fact.^[16] . The student has been unilaterally placed at the Private School for several years. (Ex. 6-5; 9-1). The student’s mother was present at the last (June 28, 2021) CSE meeting. (Ex. B-10). On June 29, 2021, the DOE sent the Parents Prior Written Notice (“PWN”) of the student’s IESP, which was to be implemented in the student’s private school starting on September 7, 2021, for the 2021-22 school year. (Ex. 1; 2). The “projected date of annual review” on the 6/28/21 IESP was June 28, 2022. (Ex. B-1).

Parents never submitted a written request to the school district requesting equitable services for the 2022-23 school year. (Ex. 3; see also FN 15). Although there was some confusing testimony from the Parent that he had made a request, I do not credit that assertion. First, when asked about making a request for services, the Parent became evasive and somewhat combative, stating, “these questions are – are confusing and are trying to divert me.” (Tr. 81). Secondly, the answer he gave was unclear, and can most reasonably be interpreted to mean that he had actually made a request for services to the Private School instead of the public school district, as required. (Tr. 81).^[17] Furthermore, the rest of the testimony on that issue indicated that Parent believed that an IESP should be developed every year without him having to renew it,^[18] further reinforcing the lack of timely request for this school year. Additionally, DOE Resolution Manager testified that if the DOE had received a request letter from the Parents, it would normally be included in the student’s SESIS log. (Tr. 50-51). The SESIS log contains all communication between parents and service providers and the district. (Tr. 50). According to the SESIS log in evidence, no such letter was received by the DOE. (Ex. 3).^[19] Moreover, Parents’ Counsel conceded a lack of timely written request at the hearing. (See FN 15). ^[20]

On June 7, 2022, the DOE emailed the student’s mother, indicating that they had “tried to reach [her] via telephone [phone number redacted] several times. Voice mail states you are not available. We are in the process of reviewing [the student’s] IESP needs. If you believe he may need a Health Paraprofessional to help manage his Diabetes, please have your doctor complete the attached medical form, signed with his/her license number. Also please sign and return, as an attachment, HIPAA form with completed doctor form. Without documentation to submit for approval, from medical department, we are unable to offer Health Paraprofessional.” (Ex. 3-1). The DOE again attempted to contact the student’s mother by phone on June 22, 2022, and the call went “straight to voice mail,” at which time the June 7th email was re-sent. (Ex. 3-2). Parents have not denied receipt of these calls and emails, nor have they alleged that they attempted to contact the district back in response. Parents have not alleged that the SESIS log in evidence is incomplete or inaccurate for the school year at issue. Parent testified at the hearing that he would not know if the student’s mother had had any contact with the district. (Tr. 82). The SESIS log contains no evidence that Parents ever returned any of the district’s calls or emails, or that they submitted any of the requested medical documentation for the 2022-23 school year. (Ex. 3). Although Parent testified that their doctor recommended a paraprofessional for the current school year (Tr. 82-83), there is no medical documentation in the record, nor is there any indication that this information was previously provided to the DOE. The record does contain evidence that Parents had submitted appropriate medical documentation by early June for the last three school years (2019-20, 2020-21, and 2021-22). (Ex. 5; 6; 7; 8). Additionally, the record contains evidence of a timely request for equitable services by the Parents for the 2018-19 school year. (Ex. 9).

It is unclear from the record what, if any, efforts Parents made to locate a DOE-approved provider for the student’s health paraprofessional. Parent testified that the student’s Private Paraprofessional has serviced the student for the last three school years. (Tr. 77). This school year was Private Paraprofessional’s first year working for the Service Provider. (Tr. 63, 84). Parent was unsure how his services had originally been retained (in previous school years). (Tr. 79, 84).

On July 7, 2022, Parent signed a service contract with the Service Provider for the 2022-23 school year. (Ex. D-3). Service Provider executed the contract on September 5. (Ex. D-3). Although the Educational Director’s affidavit indicates that the services provided were health paraprofessional services (Ex. E-2), the contract itself does not specify the services contracted (Ex. D).^[21] The contract provides that Parents are financially obligated “to pay any balance of any fee that is not covered by the [DOE],” according to an attached fee schedule, which lists a variety of services and their respective hourly rates. (Ex. D-3; i).^[22] Parent can withdraw from the contract with five days’ advanced notice, or if the DOE implements the contracted service prior to the first day of school. (Ex. D-3). Parents did not submit a Ten-Day Notice letter to the district advising of their unilaterally obtained services or their intention to seek funding from the district for those services. (Ex. 3).

Service Provider charges $65 per hour for individual health paraprofessional services, $50 of which is paid to the Private Paraprofessional. (Ex. E-2-3; i). Parent was aware of the Service Provider’s rate. (Tr. 84). The DOE contractor rate for the same service is approximately $25 per hour,^[23] according to DOE Resolution Manager.^[24] (Tr. 36). In cases where, as here, Parents are seeking an enhanced rate for services (beyond the DOE contract rate), the majority of cases get resolved with resolution offers between $40-$50 per hour, depending on the student’s health condition and the paraprofessional’s education and training. (Tr. 36-37, 43-44). In rare cases, a resolution offer may go up to $65 per hour for a health paraprofessional. (Tr. 37, 46). However, in a case such as this, DOE Resolution Manager testified that the health paraprofessional for this specific condition would warrant a rate on the lower end of the $40-$50 range, since Private Paraprofessional is not a medical professional, and the school nurse would still need to administer any medical services to the student. (Tr. 44-45).^[25] DOE Resolution Manager testified that she is familiar with the Private School, and in the past the paraprofessionals there were supplied by contract directly through the school, but that changed in the last one to two years. (Tr. 41-42). Educational Director testified that Service Provider had received the rate of $65 per hour for paraprofessional services in prior due process proceedings, but she was not sure whether that was through a resolution offer or not. (Tr. 69, 71).

Although the DOE has not challenged the qualifications of the Private Paraprofessional, I have concerns about this. Educational Director’s testimony affidavit states that she ensures that the assigned paraprofessional “has the expertise needed for that specific student.” (Ex. E-2). It also implies that training of the service providers is one of the overhead^[26] costs that are included in the hourly rates. (Ex. E-2-3). However, Parent testified that he had to train the Private Paraprofessional himself (Tr. 74), which casts doubt on the provider’s qualifications, training, and experience. It also calls into question the appropriateness of charging overhead for said training. According to Educational Director, Private Paraprofessional’s qualifications include only a high school diploma. (Tr. 63). Educational Director testified that she chose Private Paraprofessional based on his availability and understanding of the student’s health needs. (Tr. 58). However, it is unclear what knowledge she had of the student’s needs, as the only documentation she reviewed was the 2021 IESP and she did not review any additional documentation, including any medical documentation. (Ex. E-3; Tr. 58-59). Furthermore, she testified that she was not sure about the paraprofessional’s previous work experience (Tr. 64) and that she was “not aware of any medical training that the agency has provided … to the para” (Tr. 68). Other than generalizations about Service Provider generally providing training, the record lacks any evidence of specific training conducted by Service Provider for Private Paraprofessional. (See Ex. E). Furthermore, Private Paraprofessional is supervised by a special education teacher rather than someone with any medical training. (Ex. E-3). It is difficult to imagine what relevance the experience and training of a special educator has to the paraprofessional’s ability to monitor the student’s health needs. Given her lack of knowledge of the student’s medical documentation, lack of knowledge about the paraprofessional’s training and qualifications, and conflicting information about how the paraprofessional was actually trained, I find Educational Director to be an unreliable source of information regarding the health paraprofessional services provided in this case. According to the invoices in evidence, Service Provider provided 1,627.73 hours of paraprofessional services to the student during the 2022-23 school year. (Ex. ii). ^[27]

LEGAL FRAMEWORK

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”). 34 C.F.R. §300.13. 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). 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). The IEP must be reviewed at least annually, 34 C.F.R. §300.324(b)(1)(i), 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, 8 N.Y.C.R.R. §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010).

For procedural violations, a denial of a 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.” 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2). Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).

The IDEA requires that school districts re-evaluate students with disabilities at least once every three years, unless the parent and the district agree that re-evaluation is unnecessary. 34 C.F.R. §300.303(b). Additionally, a district must honor a parent’s request for re-evaluation if one has not occurred within the previous 12 months. M.S. v. Lake Elsinore Unified School District, 69 IDELR 148 (9th Cir. 2017).

A board of education may be required to pay for educational services obtained unilaterally by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). These three conditions (“prongs”) constitute the Burlington/Carter test.

A unilateral placement is appropriate if 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); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)(“[Parents] need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”). Educational progress can be a factor weighing in favor of the appropriateness of a unilateral placement. Frank G., 459 F.3d at 365. To qualify for reimbursement under the IDEA, parents need not show that the unilateral placement is perfect or that it meets all state educational standards. Id. at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).

The IDEA permits awards of direct payment to unilateral placement providers where the parents have not yet made payments but are legally obligated to do so. See Mr. A. ex rel. D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427 (S.D.N.Y. 2011). Under Burlington/Carter, if the parents are financially obligated to pay for the contracted services and have met their prong two burden, the contract must be fully reimbursed or directly funded by the District unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced. See Carter, 510 U.S. at 16 (“Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”); J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”).

Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009). In making that equitable determination, a hearing officer may consider many factors, including whether a parent’s unilateral withdrawal of the child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed themself of need-based scholarships or other financial aid from the private school, whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, and whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

While an IHO may consider a parent’s financial abilities when deciding whether to order reimbursement or direct payment, direct payment need not be conditioned on the parent’s inability to pay and hearing officers have broad discretion to grant appropriate relief, including direct payment. Ferreira and Rojas v. N.Y.C. Dept’ of Educ., 123 LRP 9785 (S.D.N.Y. 3/14/23) citing A.R. ex rel. F.P. v. N.Y.C. Dep’t of Educ., 2013 WL 5312537 (S.D.N.Y. 9/23/13) and Mr. & Mrs. A. ex rel. D.A. v. N.Y.C. Dep’t of Educ., 769 F. Supp. 2d at 428.

Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing. Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-056. Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees [20 U.S.C. §1415(f)(3)(B); 34 C.F.R. §§ 300.508(d)(3)(i), 300.511(d); 8 N.Y.C.R.R. §§ 200.5(i)(7)(i)(a); (j)(1)(ii)] or the original due process complaint is amended prior to the impartial hearing [20 U.S.C. §1415(c)(2)(E)(i)(II); 34 C.F.R. §300.507(d)(3)(ii); 8 N.Y.C.R.R. §200.5(i)(7)(b)]. Indeed, "[t]he parent must state all of the alleged deficiencies in the IEP in their initial due process complaint in order for the resolution period to function. To permit [the parents] to add a new claim after the resolution period has expired would allow them to sandbag the school district." R.E. v. New York City Dep't of Educ., 694 F.3d 167, 187-88 n.4 (2d Cir. 2012); see also B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 58-59 (2d Cir. 2014).

When a matter arises that did not appear in a due process complaint notice, the next inquiry focuses on whether the district, through the questioning of its witnesses, "open[ed] the door" to the issue. M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 250-51 (2d Cir. 2012); see also Bd. of Educ. of Mamaroneck Union Free Sch. Dist. v. A.D., 739 Fed. App'x 79, 80 (2d Cir. 2018)(Plaintiffs opened the door to counseling issue through their opening and elicited testimony); B.M. v. New York City Dep’t of Educ., 569 Fed. App'x at 59 (2d Cir. 2014)(DOE did not open the door to certification issue where only mention of teacher certification was during foundational questions, not in support of substantive arguments); J.G. v. Brewster Cent. Sch. Dist., 2018 WL 749010, at *10 (S.D.N.Y. 2/7/18)(DOE did not open the door regarding a denial of a FAPE for previous school years where evidence regarding that year was only offered and discussed as background information in support of the current year’s IEP decisions); A.M. v. New York City Dep't of Educ., 964 F. Supp. 2d 270, 282-84 (S.D.N.Y. 2013)(DOE did not open the door to issue where there was only “passing mention” of it during testimony and “there is no indication that the DOE sought, let alone obtained, a strategic advantage by raising it.”); J.C.S. v. Blind Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, *9 (S.D.N.Y. 8/5/13)(DOE did not open the door to issue where it was mentioned only in terms of background and foundational testimony). In Application of a Student with a Disability, Appeal No. 23-024, the SRO stated that the DPC’s allegation that the DOE failed to offer a FAPE for the relevant school year without any specific allegations regarding the operative IEP did “not put the district on notice of what issues the parent had regarding the [IEP].” In Scott v. New York City Dep't of Educ., the Court found that parents’ “broad allegation in the due process complaint that that the IEP was ‘not based upon adequate evaluations’ is not sufficient to raise the subsidiary issue of the CSE’s failure to consider [a specific evaluation].” 6 F. Supp. 3d 424, 438-9 (S.D.N.Y. 2014). Furthermore, the Scott Court found that the DOE had not opened the door to the subsidiary issue where the DOE “only briefly addressed the issue.” Id. at 439.

DUAL ENROLLMENT

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 C.F.R. §§ 300.134, 300.137(a), (c), 300.138(b). 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. NYS 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." NYS Educ. Law § 3602-c(2)(a).

A district has no obligation to develop or implement an IESP for a student absent a timely written request. See NYS Educ. Law §3602-c(2); Application of a Student with a Disability, Appeal Nos. 23-036; 23-032; 23-018; 21-138; 18-088; Lee-Holowka v. Emma Willard Sch., 72 Misc. 3d 1214(A), *6 (S.Ct. Rensselaer Co. 2021). The June 1st deadline is applicable even if the student has already been identified as a student with a disability and has previously received equitable services pursuant to an IESP. See Application of a Student with a Disability, Appeal Nos. 23-018 (parent’s opposing position would be contrary to the statute, which does not differentiate between students already identified and receiving IESP services and those who are not); 23-032. In Commissioner of Education Decision No. 15,195 (3/29/05),^[28] they state that 3602-c does not require the DOE to post notice of the June 1 deadline and the fact that parents were unaware of the deadline does not provide a legal basis for a waiver of the deadline.

Upon receipt of a timely written request, 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]." NYS Educ. Law §3602-c(2)(b)(l). Special education services under an IESP must be provided on an equitable basis as compared to services provided to other students with disabilities attending public schools and nonpublic schools. NYS Educ. Law §3602-c(2)(b)(1). Section 3602-c also enables a parent to initiate an impartial hearing, pursuant to NYS Educ. Law §4404, to challenge an IESP.

It is not settled law whether a parent’s failure to make a request by June 1 is jurisdictional or an affirmative defense. See Application of a Student with a Disability, Appeal No. 23-036. However, a number of State level administrative decisions have found that this defense (regarding a timely request for services) can be waived by the district. See, e.g., Application of a Student with a Disability, Appeal Nos. 23-032 (the June 1 deadline is akin to an affirmative defense that should be raised at the lowest administrative level); 23-018 (this defense can be waived if not raised at the administrative hearing); 21-138 (if a district develops an IESP after a belated request, they have waived the timeliness of the request by their actions and are bound by the subsequent IESP; however, there is still no obligation to provide equitable services for the part of the school year prior to the implementation date of the subsequent IESP); 18-088 (development of an IESP after a belated request constitutes an implied waiver of the June 1 deadline). Other State level administrative decisions have advised that parents should have notice of the June 1st issue prior to the hearing so that they have the opportunity to produce evidence about it. Application of a Student with a Disability, Appeal Nos. 23-036 (indicating that it may be proper to dismiss on this basis even without the district raising it as a defense, but only if the IHO provides sufficient notice to the parents and gives them the opportunity to provide evidence on this issue); 23-035; 23-032 (finding it problematic that the IHO did not put the parties on notice of his intent to consider the issue of a timely request for services where the DOE did not raise it at the hearing and the IHO raised it for the first time in the FOFD).

When the DOE fails to implement equitable services, any reimbursement or direct payment for privately obtained services is analyzed under the Burlington/Carter framework - the DOE may be required to reimburse parents for their expenditures for private educational services 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. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 369-70 (1985); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012); T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d. Cir. 2009); Application of a Student with a Disability, Appeal No. 21-119.

The burden of proof is on the school district during an impartial hearing, except that a parent seeking reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (including for unilateral equitable services). See NYS Educ. Law §4404(1)(c); R.E., 694 F.3d at 184-85; Application of a Student with a Disability, Appeal Nos. 23-066; 23-036.

ANALYSIS AND CONCLUSIONS OF LAW

As this is a case where Parents are seeking funding for privately obtained educational services, I will utilize the three-prong Burlington/Carter analysis in deciding whether the private paraprofessional services should be funded by the district.

Prong 1

Although the DPC claims that the DOE failed to properly fulfill its equitable duties by failing to develop or implement an IESP for the 2022-23 school year, the hearing record shows that Parents did not submit a timely written request for equitable services by the June 1, 2022, deadline in accordance with Section 3602-c(2). Education Law § 3602-c requires that parents who privately enroll their children in nonpublic schools and seek to obtain educational services for students with disabilities must first 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.^[29] That request then obliges the CSE to review the request, develop an IESP based on the student’s individual needs, and implement the necessary special education programs and services.^[30] However, the district has no obligation to develop or implement an IESP for a student absent a timely written request. ^[31]

Here, it is clear that there was no written request for the district to provide equitable services to the student, either by June 1 or at any time thereafter until the filing of the DPC. Additionally, the district raised the defense of the lack of timely request for equitable services at a prior status conference, ^[32] during which the parties were both directed “to provide any evidence they have of a timely June 1st request for equitable services” at the hearing.^[33] After that discussion, both parties affirmed that they had no questions about what was expected in terms of the hearing evidence regarding the June 1st deadline. ^[34] Accordingly, Parents’ Counsel had sufficient notice of the June 1st issue prior to the hearing and had multiple opportunities to provide evidence on this issue. They did not include any in their five-day disclosures. Then, at the start of the hearing, before opening statements, the IHO raised the lack of inclusion of the June 1st letter in the Parents’ disclosures and inquired of Parents’ Counsel whether they had any additional evidence to offer.^[35] Parents’ Counsel not only declined to offer any additional evidence, but also conceded that there had been no request for equitable services, instead arguing why the lack of request should be excused due to the DOE’s implied waiver of the June 1st requirement. ^[36]

As to waiver, Parents’ Counsel put forth three theories as to why the DOE should be found to have implicitly waived the June 1st deadline. First, they argued that the DOE’s Standard Operating Procedure Manual (“SOPM”) says that if the DOE sends parents a certain form by April 1 (regarding the request for equitable services), then (and only then) the parents must sign and return the form by June 1 to request services.^[37] However, they did not offer the SOPM into evidence, nor did they question the DOE’s witness about it, and they failed to provide any legal authority for why the alleged process described in the procedure manual would take precedence over the duly enacted statutory requirements. Furthermore, their position seems directly contradicted by the Commission of Education Decision No. 15,195, 38 which indicates that the DOE has no obligation to inform parents of the June 1st deadline and that such a claim by parents is not a legal basis to find an implied waiver. Moreover, although lack of knowledge of the June 1st deadline would not be a legal basis to find a waiver, here Parents have not even alleged a lack of knowledge about the deadline, nor would such a claim be supported by the record.^[39] Accordingly, I find that there was no implied waiver by the district based on the failure to solicit the Parents’ request by April 1st.

38 Available at https://www.counsel.nysed.gov/Decisions/volume44/d15195.

Parents’ second theory for implied waiver is that because the district contacted the Parents on June 7 stating that they were “in the process of reviewing [the student’s] IESP needs,” that means the district acknowledged that they were working on an IESP and created an affirmative obligation on the part of the district.^[40] Similar to this is the Parents’ claim that the “projected review date”^[41] on the prior IESP created an affirmative obligation to hold a subsequent CSE meeting. I disagree. First, the version of facts contained in the former part of that argument is grossly misleading. According to the SESIS log in evidence, on June 7, 2022, the district sent the student’s mother an email indicating, yes, that they were reviewing the student’s needs, but also that 1) they had tried to reach the Parents several times previously by phone unsuccessfully, and 2) that they would need the attached medical and HIPAA forms to be completed and returned if the student needed a health paraprofessional.^[42] The log further indicates that an additional attempt was made to reach the Parents by phone on June 22, 2022, and the call went straight to voicemail, at which time the June 7 email was resent.^[43] The Parents have not alleged that the SESIS log is incomplete or inaccurate. There is no indication in the record (either in the SESIS log or testimony) that either of the Parents ever returned any of the district’s calls or emails or submitted the requested medical documentation. It is undisputed that the district did not develop or implement an IESP for the student for the school year at issue.

While there are State level administrative decisions indicating that if a district develops an IESP after a belated request for services they have waived the June 1st deadline,^[44] that is not the case here. Here, no IESP was developed. Furthermore, I do not find that good faith efforts by the district to consult the Parents regarding the student’s needs constitutes any sort of implied waiver. This is especially true where, as here, the Parents seemingly ignored the district’s efforts and failed to return any of the required documentation or even return their phone calls. Without the participation of the Parents, the district would not have been able to complete the IESP process even if they had wanted to waive the June 1st deadline. The projected date of IESP review does not change this analysis, as it is just that, a “projected” date and any other interpretation would contradict the statute. The statute is clear that the DOE’s obligation to conduct a yearly IESP review is only triggered by a timely written request for services. If the Parents had made a timely written request, there is no reason the DOE could not have conducted the annual review by the projected date. Given their lack of timely request for equitable services and lack of response to the district’s attempts at communication, any lack of participation in the development of the student’s IESP falls squarely on the Parents rather than the district.

The third theory for implied waiver is akin to a “course of conduct” argument. According to Parents’ Counsel, the district has developed an IESP for the student year after year without a timely request for equitable services, so they are aware of the student’s needs and essentially have waived the June 1st deadline (seemingly forever).^[45] First, Parents’ Counsel provided no legal authority for this proposition, and I am unaware of any that would suggest that, in IDEA cases, the actions of the district in one school year can be construed as an enforceable waiver for all school years to come. To the contrary, IDEA cases generally stand for the proposition that the analysis regarding the student’s needs and placement needs to be conducted anew for each consecutive school year. ^[46]

Contrary to the Parents’ position, State level administrative decisions have indicated that the fact that the student (and his needs) are known to the district and they have provided equitable services pursuant to an IESP in past school years does not excuse the June 1st deadline.^[47] Furthermore, the factual basis for this alleged waiver is inaccurate, as the record contains evidence of a timely written request for equitable services for a prior school year (2018-2019).^[48] Although it is unclear from the record whether that was the only prior June 1st letter, it negates the claim that the district has always developed an IESP despite the fact that Parents have never made a timely request. Additionally, the record shows that, contrary to what happened for 2022-23, in prior school years when IESPs were developed, the Parents were responsive to the district’s requests for information and provided the necessary medical documentation in early June,^[49] thus distinguishing the current school year from others in which an IESP may have been developed without a timely request.

Furthermore, although it is not necessary to this decision, there is evidence in the record which could provide background information explaining any alleged shift in procedure from previous school years. Here, DOE Resolution Manager testified that recently this CSE has seen a huge increase (approximately 750%) in the number of cases they are handling, the majority of which are equitable services cases. Accordingly, they may have had the resources to do things differently in past years that they no longer have given the massive increase in filings. While this increase would not excuse a denial of a FAPE, it could explain a shift in operating procedures in keeping with the statutory guidelines (such as enforcement of the June 1st deadline).

Moreover, the details of the district’s unanswered emails to Parents on June 7th and 22nd indicate that here the district did not, in fact, know the student’s needs. In that email, they explicitly stated that “If you believe he may need a Health Paraprofessional to help manage his Diabetes, please have your doctor complete the attached medical form.”^[50] Here, the medical information in the district’s possession was somewhat outdated.^[51] Although diabetes is a medical condition that would not be expected to change, it is reasonable to expect that once the student reached a certain age he would become capable of monitoring his own glucose levels and no longer need a full-time health paraprofessional. The student is now twelve years old. While the hearing evidence shows that the student is still not able to monitor his own glucose levels, there is no indication in the record that Parents made the DOE aware of that fact in a timely manner. Nor did they provide the requested medical documentation to the district.

In general, I do not find that the actions of a prior school year could result in an implied waiver on behalf of the district for future school years. But even if I were to find that such an implied waiver is contemplated in IDEA cases, I would not find one here on the record before me. 52

For all these reasons, I find that the district had no obligation to develop or implement an IESP for the student for the 2022-23 school year, thus their failure to do so did not result in a denial of the student’s entitlement to equitable services. Nor do I find a denial of a FAPE on any other grounds alleged in the DPC.

The DPC raised in conclusory fashion the allegation that the “DOE failed to fully and timely evaluate this student in all areas of suspected disability.”53 However, as mentioned previously, this claim was not raised by Parents at the hearing and has been abandoned. Even if it was not, I find that it was not raised in a way that would have put the district on notice of what issues Parents had regarding the evaluation. 54 There are no factual allegations in the DPC to describe how the district’s evaluation of the student was deficient, other than that the district failed to conduct or update any evaluations for the current school year. The DPC also includes a reference to federal and state regulations which require re-evaluation at least every three years, and before any significant change in placement. 55 However, at no point during these proceedings did Parents allege that the district had failed to conduct a triennial evaluation or that they had failed to evaluate before a significant change in placement. To the contrary, their allegation concerning a lack of evaluations seems to be encompassed by the claim that the DOE failed to develop an IESP for the current school year. But if the DOE had no obligation to develop or implement an IESP, they also would not have needed to conduct evaluations, absent a request for re-evaluation by the Parents or the mandated triennial evaluation. Parents have not raised specific allegations regarding either of those scenarios. Accordingly, I find that the Parents did not appropriately raise any issues regarding the inappropriateness of the last DOE evaluation.

Furthermore, the DOE did not open the door to any specific issue regarding evaluations at the hearing. 56 The DOE briefly mentioned in their opening that the 2021 IESP referenced an evaluation, that PWN was sent to Parents regarding the triennial evaluation, and that it does not appear that Parents

52

I find it irrelevant that the DOE made a resolution offer in this case, as public policy weighs in favor of the parties’ efforts to resolve these cases without need for a hearing. Additionally, as DOE Resolution Manager testified, resolution offers are always made in these cases, so the fact that an offer was made has no bearing on the merits of this specific case, nor does it indicate that the DOE has conceded their responsibility to provide equitable services here. 53 Ex. A-2. 54 See Application of a Student with a Disability, Appeal No. 23-024; Scott v. New York City Dep't of Educ., 6 F. Supp. 3d 424, 438-9 (S.D.N.Y. 2014). 55

Id. citing 34 C.F.R. §104.35(a) and 8 N.Y.C.R.R. §200.4(b)(4). 56 B.M. v. New York City Dep’t of Educ., 569 Fed. App'x at 59 (2d Cir. 2014)(DOE did not open the door to certification issue where only mention of teacher certification was during foundational questions, not in support of substantive arguments); J.G. v. Brewster Cent. Sch. Dist., 2018 WL 749010, at *10 (S.D.N.Y. 2/7/18)(DOE did not open the door regarding a denial of a FAPE for previous school years where evidence regarding that year was only offered and discussed as background information in support of the current year’s IEP decisions); A.M. v. New York City Dep't of Educ., 964 F. Supp. 2d 270, 282-

84 (S.D.N.Y. 2013)(DOE did not open the door to issue where there was only “passing mention” of it during testimony and “there is no indication that the DOE sought, let alone obtained, a strategic advantage by raising it.”); J.C.S. v. Blind BrookRye Union Free Sch. Dist., 2013 WL 3975942, *9 (S.D.N.Y. 8/5/13)(DOE did not open the door to issue where it was mentioned only in terms of background and foundational testimony); Scott v. New York City Dep't of Educ., 6 F. Supp. 3d 424, 439 (S.D.N.Y. 2014)(DOE had not opened the door where the DOE “only briefly addressed the issue”). reached out to the district to challenge the evaluation.^[57] But no specific arguments were made about the substantive appropriateness of the evaluation, nor did the DOE elicit any testimony regarding evaluations. Based on the unspecified, conclusory nature of the Parents’ allegations on this issue, the DOE’s brief reference to the existence of an evaluation without any testimony or substantive arguments about the sufficiency of such evaluation did not open the door to any specific deficiency with respect to evaluations or broaden the scope of the hearing. Additionally, “there is no indication that the DOE sought, let alone obtained, a strategic advantage by raising” the issue of evaluations.^[58] Accordingly, even if this issue was not abandoned, there are no properly raised allegations regarding evaluations that require consideration. ^[59]

Moreover, even if the issue of evaluations was properly raised, I would not find a denial of a FAPE on those grounds, as the student was parentally placed for the school year at issue and the DOE had no obligation to develop or implement an IESP. Additionally, Parents ignored the district’s attempts to contact them regarding the student’s needs for the current school year. Thus, any procedural violation related to evaluations would not have impeded the student’s right to a FAPE, impeded the Parents’ participation in the decision-making process, or caused a deprivation of educational benefits.^[60] Should Parents wish to have the student re-evaluated, they should make such a request to the district.

Prong 2

Since the district has met its Prong 1 burden, it is not necessary to reach Prong 2. However, for the purposes of appeal, even if I were to have found that the district failed to meet its Prong 1 burden, I would find that Parents failed to meet their burden under Prong 2. Here, Parent’s testimony established the student’s need for a health paraprofessional for the current school year. However, there is not sufficient evidence in the record to show that the service provided was specially designed to meet the student’s unique needs.^[61] The record here does not establish with any clarity how the service was implemented, other than that the paraprofessional generally watches for signs of high or low glucose and takes the student to the nurse if any intervention is needed.^[62] Nor does the record establish how the provision of the service was tailored directly to meet the student’s needs.^[63] There is no evidence of any record-keeping practices to track the student’s glucose levels or how often intervention was necessary. It is unclear what training or experience the Private Paraprofessional has. Parent did not offer Private Paraprofessional or anyone from the student’s school as a witness and, as discussed previously, I found the testimony of Educational Director unreliable. For all these reasons, if the DOE had not prevailed on Prong 1, I would find that Parents have failed to meet their Prong 2 burden regarding the appropriateness of the private paraprofessional services.

Prong 3

Since the district has met its Prong 1 burden, it is not necessary to reach Prong 3. However, for the purposes of appeal, even if I were to have found that the district failed to meet its Prong 1 burden, and that Parents had met their Prong 2 burden, I would find that no relief is warranted because the equities here weigh significantly against the Parents.

First, Parents did not make a timely written request for equitable services. So, the district was not on notice that they were expected to provide equitable services. Second, there is no evidence in the record that Parents sent the district a Ten-Day Notice of their unilateral placement or their intention to seek reimbursement for enhanced rate services. This is especially egregious here, where Parents signed a contract with the Service Provider on July 7, more than two months before the start of the school year, and yet failed to provide notice to the district. Furthermore, there is no evidence in the record of any efforts by the Parents to find a provider willing to work at the DOE’s contract rate. Finally, not only did the Parents fail to provide notice to the district here, but they also ignored the district’s attempts to contact them and failed to provide the requested medical documentation of the student’s needs. Accordingly, the equities here weigh in favor of the district, and even if relief was otherwise warranted, I would deny it on equitable grounds. ^[64]

Other Relief

As mentioned previously, I find that Parents’ claim for an award of funding for additional related services has been abandoned. Even if that claim had not been abandoned, since the student had no entitlement to equitable services for the 2022-23 school year, there was no denial of a FAPE that needs to be remedied. Even if the student had been entitled to receive equitable services, generally, there is insufficient evidence in the record to support an order for funding for the provision of compensatory SLT or OT services now. There was no testimony regarding the student having any special education sub nom, 471 Fed. App'x 77 (2d Cir. June 18, 2012); Application of a Student with a Disability, Appeal Nos. 23-057 (noting that where the record contained general information about the school’s programming but not any details about specific instructional methods or modifications tailored to the student, or details about the student’s specific program or services, parent failed to meet their Prong 2 burden); 23-085 (holding that despite the parent’s attempt to replicate a program similar to the student’s last-agreed upon summer IEP, parent failed to meet their prong 2 burden where they failed to come forward with evidence that describes the services and delivery thereof or how they met the student’s needs and the record does not show that the student made progress); 23-066 (holding that where the hearing record was sparse as to what services the student received or how they addressed the student’s needs the IHO correctly found that Parent did not meet their burden to establish the appropriateness of unilateral equitable services); 23-081 (upholding the IHO’s denial of reimbursement for related services, noting that there was no 10-day notice, the hearing record lacked consistent information about the level of services received and did not explain how the services addressed the student’s needs). needs outside of the health paraprofessional. Furthermore, if the Parents were seeking direct funding for additional services at a provider of their choosing, it was their burden to prove the appropriateness of those unilateral services. Since there is no evidence in the record of how these hypothetical services would be implemented or how they would meet the student’s needs, Parents have not met that burden.

Furthermore, I find insufficient evidence in the record to support the student’s current need for SLT or OT services. The only references to SLT needs in the 6/28/21 IESP are that the student has a “minor speech impediment” described as a “lisp” and “needs encouragement to speak clearly.”^[65] The description of his OT needs is limited to the fact that the student could improve his fine motor skills and sometimes has messy handwriting, but it elsewhere indicates that the student can write more clearly when supervised and his teacher describes his handwriting as “OK.”^[66] The 6/28/21 IESP included OT and SLT goals.^[67] Given the low level of need expressed in the last IESP and the lack of updated information in the record regarding the student’s current SLT and OT needs, it is unclear whether his speech and fine motor issues were successfully resolved since 2021 or whether they persist. Moreover, there is no evidence in the record of any educational deficits caused by the denial of those services. For all these reasons, even if the claim for additional related services had not been abandoned, I would not find that such a claim is supported by the record. Even if the need for and appropriateness of such services were supported by the record, I would deny relief based on the equitable considerations described above.

I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all of the Parents’ remaining claims not discussed herein are dismissed with prejudice.

DECISION AND ORDER

Based upon the above Findings of Fact and Conclusions of Law:

1. IT IS HEREBY ORDERED THAT that all claims raised by Parents are dismissed with prejudice.

SO ORDERED.

DATED: July 28, 2023 Leah Martin, Esq._(Signed Electronically)_

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.

APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Hearing Request 4/17/23 7 pages

B. IESP 6/28/21 10 pages

D. Contract 9/5/22 3 pages

E. Educational Director Affidavit 5/31/23 3 pages

DOE’S EXHIBITS

1. PWN of Classifications and Recommended Program 6/29/21 3 pages DOE

2. PWN of Proposed Reevaluation and Parent Rights 6/23/21 3 pages DOE

5. 3. SESIS Events Log Excerpt* 6/25/21- 4 5/29/23 Doctor Referral Letter and Medical Accommodations Request Form for 2018-19 School Year 1/9/19 3 pages DOE

6. Diabetes Medication Administration Form and Related Parent 6/4/20 – Consents for 2021-22 School Year 6/5/20 7 pages DOE

7. Medical Accommodations Request Form and Related Parent Consents for 2021-22 School Year 6/11/21 5 pages DOE

8. Diabetes Medication Administration Form for 2021-22 School Year 6/9/21 4 pages DOE

9. Parent Notice of Intent and Request for Services for Parentally Placed Student for 2018-19 School Year 5/13/18 1 page DOE

IHO’S EXHIBITS

i. Service Provider Rate Sheet 2022-23 1 page

ii. Service Provider Invoices Various *This is an excerpt because the DOE had previously submitted a complete copy in their five-day disclosures, but then eliminated older entries (prior to June 25, 2021) that were not relevant to the proceedings. (See DOE Disclosures). 10 pages

Footnotes

[2] Exhibits shall be referred to as follows: Ex., followed by lettered designations for Parents’ Exhibits, numbered designations for DOE’s Exhibits, and roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parents’ Exhibit A, page 1, will be referred to as (Ex. A-1).

[3] A different attorney from the law office of Parents’ Counsel appeared at the PHC (“PHC Parent Counsel”). (See PHC Transcript).

[4] A different attorney from the law office of Parents’ Counsel appeared at the status conference (“Pre-hearing Parent Counsel”). (See SC Transcript 6.29.23).

[5] At that time, the proposed exhibits were each contained in separately attached files. Thereafter, the DOE Representative was directed to submit them in a single .pdf with an Exhibit List as the cover page.

[7] The hearing transcript will be referred to as “Tr.” followed by the page number within the transcript. For example: (Tr. 1).

[8] Proposed Exhibit C is an unexecuted proposed resolution agreement for this case. (See Parents’ Disclosures). After clarification from Parents’ Counsel as to the relevance of proposed Exhibit C, it was excluded pursuant to Fed. R. Evid. 408, which provides that evidence of settlement offers is not admissible to prove liability for or the invalidity of a claim or its amount. (Tr. 15-19). Parents’ Counsel had proposed that the exhibit was relevant to show the DOE’s acknowledgement of the student’s needs and the fact that they were willing to fund the services at a specific rate for this school year (Tr. 15), which goes to both the validity of the claim and its amount.

[9] Although this witness was not on the DOE’s proposed witness list (See DOE Belated Disclosure Email, p. 3), Parents’ Counsel had no objection to this witness. (Tr. 20).

[10] Originally, Parents’ Counsel was not intending to offer the Parent as a witness. (Tr. 4). However, when they were made aware that Pre-hearing Parent Counsel had agreed to make the Parent available for questioning, and that the DOE Representative had declined to subpoena the witness based on that representation, they eventually agreed. (Tr. 4-5). Although Parents’ Counsel attempted to limit the scope of cross examination, Pre-hearing Parent Counsel’s agreement to allow the DOE to question the Parent had not been so limited, nor would the questioning have been limited if the witness had been subpoenaed, so DOE Representative was allowed to ask about all relevant issues.

[11] Given time constraints and the fact that both parties’ openings were more in the vein of closing arguments than openings, the parties agreed to incorporate their opening statements as part of their closings and then only supplement them with any additional arguments they wanted to make, based on the hearing testimony. (Tr. 87-88).

[12] Based on Educational Director’s testimony, the contract rate sheet and services invoices were requested to complete the record. (Tr. 68-69).

[13] The Rate Sheet and Invoices were received on July 19 and are included in the record as IHO Exhibits i and ii, respectively.

[14] There is no dispute that the student is unable to monitor his own glucose levels and needs a health paraprofessional to do so for him while he is at school. (Tr. 73-76; Ex. E-3). If the student’s glucose levels get too high or too low without intervention, it can lead to dizziness, irritability, or even seizures or loss of consciousness. (Tr. 74-75). Parent testified that the student’s glucose levels get out of balance multiple times a day and the student is unable to recognize the signs or even ask for help. (Tr. 74-76)

[15] When asked about what evidence they have of a June 1st request for services, Parents’ Counsel stated, “[t]here’s no document I am putting forth….There’s certainly … argument to be made why there is no document.” (Tr. 22). After additional questioning by the IHO, Parents’ Counsel implicitly decline an offer to present belatedly disclosed evidence regarding any request for equitable services (see Tr. 23), presumably because none exists. In response to the DOE’s opening alleging a lack of timely request here, Parents’ Counsel did not refute that allegation, but rather argued why the lack of timely request should not matter. (Tr. 29-32). In her closing, Parents’ Counsel confirmed the lack of June 1st letter for the current school year, stating that, “the DOE continues to develop IESPs for this child, again, year in and year out, without any service letter from the parent.” (Tr. 92).

[16] The facts contained in the “Introduction and Procedural History” and “Background” sections above are incorporated here as well.

[17] He stated that, “of course, I made a request. And that’s done through – I used the school as – as – as my advisor on that.” (Tr. 81). In prior school years, the student’s Private School provided paraprofessional services directly (Tr. 41-42, 79), which further enforces that Parent would have made a request to the Private School. The Parent was not involved in contracting for the provision of services for previous school years. (Tr. 78-79).

[18] Parent testified that, “Every single year, I get a new IESP. And all previous years, I did not have to renew it.” (Tr. 81).

[19] Not only did Parents not dispute the accuracy of the SESIS log at the hearing, but Parents’ Counsel actually endorsed its accuracy when referencing emails sent by the district to the student’s mother in June of 2022. (Tr. 30).

[20] Although this is not testimony, it is an admission against interest. Additionally, Parents’ Counsel was given an opportunity to provide additional evidence of a timely request for equitable services and declined to do so, instead arguing why such a request was unnecessary. (Id.).

[21] Educational Director testified that there were no other written or oral agreements other than the contract and incorporated rate sheet. (Tr. 65-66).

[22] The Rate Sheet was not attached to the contract in Parents’ Disclosures, so it has been included here as IHO Exhibit i.

[23] DOE contractors are obligated to accept this rate. (Tr. 38-39). However, the Service Provider is not a DOE contractor. (Tr. 49-50).

[24] DOE Resolution Manager has worked at the DOE for 24 years, first as a social worker, then as a district representative, and the last two years investigating and issuing resolution offers. (Tr. 34-35). Recently, the number of cases her CSE handles has increased from approximately 400 per year to 3000 this year, the majority of which are enhanced rate services cases, like this. (Tr. 37). Her job is to resolve as many of these cases as possible. (Tr. 37). According to DOE Resolution Manager, they “always offer resolution” for these types of cases (where the student is parentally placed with no special class recommendation and parents are only seeking enhanced rate related services). (Tr. 49).

[25] Here, the paraprofessional just monitors the student for signs of high or low glucose, and if any troubling signs are noted, the school nurse must provide the necessary remedy. (Tr. 44, 60 77, 84).

[26] Additional costs include loan interest, consultation services, supervision, and professional development. (Ex. E-2-3; Tr. 69).

[27] The invoices do not contain an hourly rate or total amount due for these services. (Ex. ii). Since I have denied funding for these services, I have not taken the extra step of calculating the total cost at the requested rate of $65 per hour.

[28] Available at https://www.counsel.nysed.gov/Decisions/volume44/d15195.

[29] NYS Educ. Law §3602-c(2)(a), (2-c).

[30] NYS Educ. Law §3602-c(2)(b)(1).

[31] See NYS Educ. Law §3602-c(2); Application of a Student with a Disability, Appeal Nos. 23-036; 23-032; 23-018; 21-138; 18-088; Lee-Holowka v. Emma Willard Sch., 72 Misc. 3d 1214(A), *6 (S.Ct. Rensselaer Co. 2021).

[32] Although this conference was labelled as a status conference, it was effectively our pre-hearing conference as it was the date when hearing issues and evidence were discussed. (SC Transcript 6.29.23, p. 12-13).

[33] See SC Transcript 6.29.23, p. 14.

[34] Id.

[35] First, the IHO noted that the issue had been raised at the last conference and that the parties had been directed to provide evidence on this issue. (Tr. 22). Then, the IHO inquired whether Parents’ Counsel was intending to present testimony or additional evidence about this, which was answered implicitly in the negative. (Tr. 22-23). Finally, the IHO stated that, “I wanted to give you a heads up – and make sure that you have the opportunity. If you do have these documents, I would entertain a request to provide them belatedly or just to give you a chance, since the parent is going to be testifying, however briefly, if there’s anything you want to elicit from them about that. I wanted to let you know early enough that you have the opportunity to make any decisions you want to make in terms of what you want to present on that.” (Tr. 23).

[36] See FN 15. Although Parents’ Counsel’s admissions are not testimony, they are admissions against interest and are otherwise supported by the record.

[37] Tr. 31.

[39] The record contains evidence of a timely written request for equitable services for the 2018-2019 school year. (Ex. 9-1).

[40] Tr. 30-31, 92.

[41] Tr. 29-31, 92.

[42] Ex. 3-1.

[43] Ex. 3-2.

[44] See, e.g., Application of a Student with a Disability, Appeal Nos. 21-138; 18-088.

[45] Tr. 92.

[46] See, e.g., Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 (E.D.N.Y. Oct. 30, 2008); V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *7 (S.D.N.Y. Aug. 17, 2022); M.F. v. N. Syracuse Cent. Sch. Dist., 2019 WL 1432768, at *8 (N.D.N.Y. Mar. 29, 2019); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010); see also 34 C.F.R. §300.324(b)(1)(i); 8 N.Y.C.R.R. §200.4(e)(1)(ii).

[47] See Application of a Student with a Disability, Appeal Nos. 23-018; 23-032.

[48] Ex. 9-1.

[49] Ex. 5; 6; 7; 8.

[50] Ex. 3-1.

[51] Ex. 5; 6; 7; 8.

[57] Tr. 27-28

[58] See A.M. v. New York City Dep't of Educ., 964 F. Supp. 2d 270, 282-84 (S.D.N.Y. 2013).

[59] Although the record contains a PWN dated June 23, 2021, notifying Parents of the student’s triennial evaluation, it indicates that the DOE reviewed existing “Teacher, Parent and Provider Reports” to satisfy the requirement. (Ex. 2-1). Additionally, the PWN gives contact information for Parents to use if they wish to request new assessments. (Ex. 2-1). There is no indication in the record that Parents disagreed with the DOE’s decision to review existing evaluative material instead of conducting new assessments, nor is there any indication that Parents ever requested additional assessments.

[60] See 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).

[61] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007); 8 N.Y.C.R.R. §200.1(vv); 34 C.F.R. §300.39(b)(3).

[62] While there was also testimony about periodically checking the student’s glucose monitoring device, this was generalized to “whoever’s monitoring” the student and did not specify that it was done by the Private Paraprofessional. (Tr. 83-84).

[63] See L.Q. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 490 (S.D.N.Y. 2013)(rejecting parents' argument that counseling services met student's social/emotional needs where "[t]here was no evidence . . . presented to establish [the counselor's] qualifications, the focus of her therapy, or the type of services provided" and, further, where "[the counselor] did not testify at the hearing and no records were introduced as to the nature of her services or how those services related to [the student's] unique needs"); R.S. v. Lakeland Cent. Sch. Dist., 2011 WL 1198458, at *5 (S.D.N.Y. Mar. 30, 2011)(rejecting the parents' argument that speech-language therapy services met student's needs where parents "did not offer any evidence as to the qualifications of the provider of the therapy, the focus of the therapy, or when and how much therapy was provided"), aff'd

[64] If funding for the paraprofessional services was otherwise warranted, I would not reduce the award based on the cost of the service. I do not find the $65 per hour rate to be objectively unreasonable, and the record shows that the DOE has paid that rate for a similar service in other cases.

[65] Ex. B-2.

[66] Ex. B-4.

[67] Ex. B-5-6.