Impartial Hearing Decision

Findings of Fact and Decision Case No. 247998

FINDINGS OF FACT & DECISION

City/State: 247998

Student’s Name: REDACTED (Hereinafter referred to as “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Request by: Parent

School: Parentally placed (hereinafter “Academy”)

Actual Record Close: NOVEMBER 22, 2023

Hearing Officer: ANN MARQUEZ, ESQ.

Date of Decision: NOVEMBER 22, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

REDACTED, ESQ.,Parent Representative

REDACTED, ESQ., Parent Representative

REDACTED, ESQ., Parent Representative

REDACTED, SETSS Supervisor, REDACTED

REDACTED,ESQ., Observing

For the Department of Education:

REDACTED, ESQ., District Representative

REDACTED, ESQ., District Representative

x

REDACTED a minor, by and through the Parent

DECISION AND ORDER

Petitioner

-against-

NEW YORK CITY DEPARTMENT OF EDUCATION

Respondent. x

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on May 4, 2023. (Ex. A.)1. The DPC alleged that the DOE failed 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 for the 2022-2023 school year (school year at issue). The Parent is seeking an order for enhanced rate for services for the school year at issue. Id.

On May 5, 2023, the undersigned Hearing Officer was appointed to the above referenced matter. The hearing went forward in this case on several dates. (See, Tr.).^[2] The Parent representative presented opening statements, documentary evidence, witnesses, and a closing brief. The District representative did not.

Lists of the documentary evidence submitted are appended to this Order.

BACKGROUND

The Student was classified by the DOE with Speech or Language Impairment. (Ex. B, C). The Student’s classification and eligibility for special education support and services are not in dispute. Id. The Parents maintain the Student was denied a FAPE for the school year at issue and now seeks an enhanced rate for services for the school year at issue. (Ex. A).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The IDEA is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded free appropriate public education (“FAPE”). See, 20 U.S.C.

1 Exhibits shall be referred to as follows: “Alphabet Letters” for Parent Exhibit; “Numbers” for the District’s Exhibits; and “Roman Numerals” for the Impartial Hearing Officer’s exhibits.

§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 Individualized Education Plan (“IEP”) developed by its Committee on Special Education (“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 Parent 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).

Under the FAPE analysis, the public school and/or Local Education Agency (“LEA”) has the burden of persuasion and the burden of production to demonstrate that the disabled child was provided a FAPE as set forth in the IDEA.

The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).

Here, the District did not present any testimony to support its contention that it offered the Student with a FAPE for the school year at issue. (Tr. June 20, 2023, 16). There was absolutely no explanation, let alone a cogent and responsive explanation, for the CSE’s program and placement recommendations.

Based upon the foregoing, the District failed to demonstrate that the school district offered the Student a FAPE for the school years at issue. Therefore, the Student was denied a FAPE for the school year at issue. New York State Education Law section 3602-c

Under New York State Education Law section 3602-c, students with disabilities who are placed by their parents in non-public schools are entitled to receive special education services in accordance with an Individualized Education Service Plan (“IESP”) from the public-school district in which the non-public school is located while they receive general education from the non-public 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.

Pursuant to Education Law section 3602-c , 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 non-public 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.

In such circumstances, the district of location's CSE must review and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][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. Additionally, unlike the provisions of the IDEA, Section 3602-c provides a parent with further protection, and permits a parent to seek review of the CSE’s recommendations pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404. Id.

While it may very well be permissible for a district to include the parent in the identification of a particular provider, especially if the parent is willing and able to do so, it does not follow that the responsibility to redress a parents’ inability to locate a provider is shifted permanently to the parent. See, Application of Student with a Disability, SRO Appeal 17-034. A district cannot be absolved of its statutory obligation to implement SETSS for the student simply by asserting that the parents did not engage the services of the SETSS providers of whom the district referred them. Id. The district has the obligation to provide services in conformity with the IESP. See, Educ. Law § 3602-c(2)(a), (b)(1); 20 U.S.C. § 1401(9)(D); 34 CFR 300.17(d); see also 20 U.S.C. § 1414(d); 34 CFR 300.320.

Most significantly, the IDEA places an affirmative duty on state and local educational agencies to locate, identify and evaluate all children with disabilities residing in the state (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.125[a][1][i]). This child find provision includes “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” (34 C.F.R. § 300.125[a][2][ii]). To satisfy that requirement a board of education must have procedures in place that will enable it to find such children. Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child. The child find duty is triggered when the state or local educational agency has reason to suspect a disability and reason to suspect that special education services may be needed to address that disability. These provisions require that children be identified and evaluated within a reasonable time after school officials notice behavior likely to indicate a disability. As such, the “duty is triggered when the state has reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability.” Dept. of Educ., State of Haw. v. Cari Rae S., 158 F.Supp.2d 1190, 1194. (D.Haw. 2001); New Paltz Central School Dist. v. St. Pierre, 307 F. Supp.2d 394 at 397 (2004).

The District had "an affirmative duty to conduct a child find and evaluation analysis." The record clearly demonstrates the District failed to identify the regulations it was required to follow to satisfy its child find and evaluation obligations. The District failed to meet its “non-delegable” burden of proof and production in delineating the applicable policies and procedures it is required to follow. (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.125[a][1][i]).

The Parent’s due process complaint set forth the allegations that the District was obligated to provide for the Student during the 2022-2023 school year at issue. The District failed to establish a counter record to such obligations.

Here, the Student was parentally placed the Student in private school during the school year at issue. (Ex. A). The Student is classified as a student with Speech or Language Impairment. (Ex. B, C). The Parent asserted that the Student is entitled services that stem from his unappealed FOFD dated April 4, 2023 that based such an order upon the Student’s psychoeducational evaluation dated March 8, 2022, which recommended 10 hours of SETSS, due to the Student’s poor decoding, reading, comprehension/processing skills, and decreased ability to attend and focus.(Ex. C, IHO I).

The Student’s psychological evaluation conducted by REDACTED, Psy.D., recommended 10 hours of SETSS services because the Student is struggling in all academic domains, and explained that 3 hours of SETSS is not adequate because the Student requires aggressive remediation to address his deficits. (Ex. C, IHO I). Specifically, the Student’s deficits are in reading and classroom functioning. The Student struggles in his focus, attention, ability to retain information taught, and word retrieval. Id. The Student’s psychological evaluation concluded that the Student is struggling across all of the academic domains. These struggles appear to be prominent both in the Yiddish and general English education studies. Additionally, the Student is struggling very dramatically within focus and attention domains. These deficits are very significantly exacerbating his academic deficits. Id

Notably, the Student’s IESP dated May 16, 2022, reduced the Student’s services to 3 hours per week of SETSS services and continued 2x per week of Speech Language Therapy services. (Ex. B). The record is devoid of any evidence by the DOE to explain such a reduction.

The record clearly demonstrates by the Parent’s documentary and testimonial evidence that the Student requires the services as established by his psychoeducational evaluation, dated March 8, 2022. (Ex. IHO I, C). Further, the District did not provide the Student with a provider for such services for the school year at issue. The Parent secured part of the aforementioned services through a private provider and seeks an enhanced rate for such services. (See generally, Tr. June 27, 2023, September 15, 2023, October 25, 2023; Ex. B, C, E, G, I, J).

The parent testified that the DOE did not provide even the reduced services that stems from the Student’s IESP dated May 16, 2022, or the services that stem from the unappealed FOFD dated April 4, 2023. (See generally, Tr. September 15, 2023, October 25, 2023; Ex. B, C). The record demonstrates the parent secured private providers for the Students SETSS and Speech-Language Therapy services. The parent contracted with the Agency for such providers, and the Student received his SETSS services 3 hour per week, from the beginning of the school year until April 16, 2023. (Tr. September 15, 2023, 65; Ex. G). Thereafter, the Student was provided with 6 hours per week of SETSS services. Additionally, the Agency provided the Student with his Speech-Language Therapy, 2x per week for 30-minute sessions. (Tr. 65; Ex. I, J).

The record clearly demonstrates the Student requires weekly, 10 hours of SETSS services and 2x-30-minute sessions of Speech Language Therapy because the Student is struggling in all academic domains, and he requires aggressive remediation to address his deficits.

Based upon the foregoing, the District failed to demonstrate that the school district offered the Student a FAPE for the school year at issue. Therefore, the Student was denied a FAPE for the school year at issue. The Parent secured part of the aforementioned services through a private provider and seeks market rate for 10 hours per week of SEIT/SETSS services and 1 hour per week of Speech Language Therapy services for the school year at issue that were not provided, and for such services to be directly funded by the DOE. (Ex. A, C, IHO I).

Based upon the foregoing findings of fact and conclusions of law herein, IT IS HEREBY ORDERED the following: 1) The DOE failed to meet its burden of proof to demonstrate that the Student was provided a FAPE for the school year at issue. Thus, the Student was deprived a FAPE for the 2022-2023 school year; 2) The Student requires and is entitled to the SETSS services, in Yiddish, Direct/Group sessions, 10 hours per week, and Speech-Language Therapy (“SLT”), in Yiddish, Individual sessions, 2x30 minutes per week, for the entire 2022-2023 school year, to be paid by the DOE at an enhanced rate (Ex. C, IHO I); 3) The Parent shall select the provider for such services, and upon receipt of invoices and supporting documents, the DOE will directly fund/reimburse the parent for the SEIT/SETSS services and Speech Language Therapy services, to be paid at market rate capped at the lowest rate paid to such providers by the DOE’s Impartial Hearing Implementation Unit within the last 12 months. (Ex. C, IHO I).

DATED: NOVEMBER 22, 2023

Impartial Hearing Officer-Ann Marquez

NOTICE OF RIGHT TO APPEAL

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

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

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

District’s Exhibits: No exhibits

Parent’s Exhibits: A 5/4/2023 DPC 5 pp. B 5/16/2022 IESP 11 C 4/4/2023 FOFD #218245 13 D 9/7/2022 TDN 2 E various Provider Credentials 2 F Affidavit of Parent 3 G 8/23/2022 Contract 1 H Affidavit of REDACTED 3 I 5/27/2023 SETSS Progress Report 5 J 2/21/2023 Speech-Language Progress Report 3

*Exhibit F and H were not admitted, the witnesses provided testimony on the record.

IHO’s Exhibits:

I. Pendency Order 11/5/2021 3

Footnotes

[2] Reference to the Transcript shall be referred to as “Tr.”