NY IHO #248547: Impartial Hearing...

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CASE NUMBER: 248547 – NYC: 600072

FINDINGS OF FACT AND DECISION

Case Number: 248547

Student’s Name: [REDACTED] (“Student”)

School District: N.Y.C. Dept. of Educ.

Impartial Hearing Officer: Cynthia M. Lindblom, Esq.

Date of Filing: May 24, 2023

Hearing Requested by: [REDACTED] (“Parent”)

Date of Hearing: October 25, 2023

Record Close Date: December 5, 2023

Date of Decision: December 5, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 25, 2023

For the Parent and Student:

[REDACTED], Parent’s Counsel, [REDACTED]

For the Department of Education:

[REDACTED], Consultant Impartial Hearing Representative, Special Education Unit

PROCEDURAL HISTORY

On May 24, 2023, Parent,^[1] through counsel, filed a Due Process Complaint (“DPC”) (Ex. A). 2 In the DPC, Parent alleged, among other things, that the DOE failed to provide Student with special education services on an equitable basis for the 2021-2022 school year. Specifically, Parent alleged that the District failed to provide Student with Special Education Teacher Support Services (“SETSS”) and related services of Speech Language Therapy (“SLT”), Occupational Therapy (“OT”), and Counseling Services, that were mandated under Student’s Individualized Education Services Program (“IESP”), dated January 25, 2021 (Ex. A at 2). 3

As relief, Parent requested an order finding that the DOE failed to provide Student with special education services on an equitable basis for the 2021-2022 10-month school year, and directing the DOE to fund the following: SETSS, direct service, group service, in English, ^[3] periods per week; SLT, individual service, in English, one session per week, 30 minutes per session; SLT, group service, in English, one session per week, 30 minutes per session; OT, individual service, in English, one session per week, 30 minutes per session; Counseling Services, group service, in English, one session per week, 30 minutes per session (Ex. A at 2; Tr. 162, 209).^[4]

I was appointed Impartial Hearing Officer (“IHO”) for this case on May 25, 2023. A settlement conference with the representatives of the parties was held on June 28, 2023. 5 Thereafter, status conferences were held on August ^[2], 2023, August 8, 2023, August 23, 2023, September ^[5], 2023, and September 26, 2023.

On October 25, 2023, this matter was scheduled for a virtual Due Process Hearing (“DPH”). The District proffered no evidence or witnesses (Tr. 162; 188). Parent’s Attorney offered three exhibits, all of which were admitted into evidence (Tr. 163-165). The District made an opening statement where they raised the affirmative defense of failure to provide timely notice by June 1st, 2021 for equitable services (Tr. 165). In response, Parent’s Attorney argued, in part, that the affirmative defense was untimely (Tr. 167); and that the District engaged in conduct which constituted a waiver of this defense (Tr. 169-170; 180-182). Parent’s Attorney made an opening statement and presented the testimony of Parent through affidavit only (Ex. C). The District cross examined Parent (Tr. 196-202). Parent then rested and both parties proceeded to make closing statements (Tr. 204-209).

FINDINGS OF FACT

After a full review of the record, I make the following findings of fact and determinations. Unless otherwise noted, none of the facts are contested in this matter.

Student has been identified as a Student with a Disability and is classified with a Speech or Language Impairment (Ex. A at 1). Student struggles with many academic and social/emotional areas which requires a lot of extra assistance (Ex. C at 1). Without the extra assistance, Student would not be able to maintain their “mainstream placement” (Ex. C at 1).

On January 25, 2021, the Committee on Special Education (“CSE”) convened to consider Student’s eligibility for special education and related services (Ex. A at 2). The CSE developed an IESP recommending: SETSS, Direct Service, Group Service, English, 3 periods per week; SLT, Individual Service, English, 1x30 minutes per week; SLT, Group Service, English, 1x30 minutes per week; Counseling Services, Group Service, English, 1x30 minutes per week; and OT, Individual Service, English, 1x30 minutes per week (Ex. B at 7-9). The District failed to implement their own recommendations, to provide or to fund SETSS services and related services for Student, during the 2021-2022 school year (Ex. A at 2).

During the hearing, the District made the following concessions: That the IESP, dated January 25, 2021, was the operative IESP for the 2021-2022 school year; that Student was entitled to the services recommended in the IESP during the school year; that the District was responsible for recommending those services; and that the District did not implement those recommended services (Tr. 189-190).

LEGAL STANDARDS AND ANALYSIS

FAPE

The IDEA provides that children with disabilities are entitled to a FAPE. See 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”). See 20 U.S.C. § 1401(9). 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. See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order 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).

Dual enrollment

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. See 20 U.S.C. § 1412(a)(l)(A); Educ. Law § 4402(2)(a), (b)(2). 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 C.F.R. § 300.137(a). 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. See Educ. Law § 3602-c(2). Then, 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]." Educ. Law § 3602-c(2)(b)(l).

District’s June 1st, 2021 Argument

During their opening statement, the District raised for the first time that the matter should be dismissed because Parent did not notify the District of their intent to seek services by the June first that immediately preceded the school year in question, per Educ. Law § 3602-c(2) (Tr. 165-166; 179). Parent’s attorney disagreed, arguing, in pertinent part, that the June 1st notice requirement is a timing provision, subject to waiver. For multiple reasons, I find that Parent’s claim is not barred by Educ. Law § 3602-c.

Timeliness of District’s Affirmative Defense

A preliminary issue before me is whether District’s affirmative defense was raised in a timely manner. Parent’s position is the District waived this defense when they failed to raise it at the “earliest possible moment” (Tr. 167). According to Parent, there have been “lengthy discussions” and “subpoenas sent out,” therefore to raise an affirmative defense on the day of trial, over a 2021 – 2022 school year, should be rejected (Tr. 167-168).

Here, I find that an affirmative defense is timely when raised during the impartial hearing. See, NYS State Review Officer (“SRO”) Appeal No. 19-069; M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 (S.D.N.Y. 2014) [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]. The District raised this affirmative defense during their opening statement at the due process hearing (Tr. 165-166). I find that the due process hearing is analogous to an initial administrative hearing and, therefore, was timely made. While Parent’s Attorney may disagree, they failed to provide any authority to support their position. Parent’s Attorney did cite to SRO decisions 23-033, and 23-032 (Tr. 168); however, in both those cases, the June 1st argument was raised by the presiding IHO, and not by the district. See, Appeal No. 23-033 at 9-10; see, Appeal No. 23-032 at 9. Here, the District raised this argument at the start of the proceedings during their opening statement; therefore, I find the District timely raised this affirmative defense.

Affirmative Defense

Having found the affirmative defense timely, I further find that the District failed to prove their argument. The District raised the affirmative defense during their opening, as it contains new facts to be established (elements of notice and of a date certain) that would have the effect of denying the Parent’s claims. See, e.g., Carter v. Eighth Ward Bank, 33 Misc. 128 (Sup. Ct. N.Y. Cty 1900) (“an affirmative defense can . . . consist only of new matters constituting a defence [sic], i.e., [a] new matter which, assuming the complaint to be true, constitutes a defence [sic] to it”). Further, under the IDEA and the NY State Education Law, school districts have the burden of proof that a FAPE has been provided to the student, except that where tuition reimbursement is sought, the parent has the burden of proof with respect to the appropriateness of the parent’s chosen educational placement. See Education Law § 4404(1)(c); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014); and R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012).

As the party invoking the defense, the Department was obligated to do more than simply make the charge during their opening statement. The District should have placed the Parent on notice of the defense before the hearing, and more importantly, was obligated to offer evidence at the hearing to establish the defense’s elements. During the hearing, the District offered no witnesses, affidavits, or exhibits to demonstrate how June 1 notices are received from parents, whether a search was made for a specific notice from Parent here, or whether any notice had been received. In failing to do so, the affirmative defense was not proven, and Parent had no burden to refute an unsupported allegation. I therefore reject the argument for this reason alone. ^[6]

Burden of Proof

Under the IDEA and the NY State Education Law, school districts have the burden of proof that a FAPE has been provided to the student, except that where tuition reimbursement is sought, the parent has the burden of proof with respect to the appropriateness of the parent’s chosen educational placement. See Education Law § 4404(1)(c); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012).

Here, I find that the District failed to provide Student a FAPE on an equitable basis for the 2021-2022 school year. The District, which bears the burden of proof, failed to put forth any evidence or witnesses. Accordingly, I find that the District failed to provide Student a FAPE for the 2021-2022 school year.

The implementation of IESP services falls on the district of location insofar as "boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent." Educ. Law § 3602-c(2)(a). 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.” Educ. Law § 3602-c(2)(b)(1). Additionally, section 3602-c

Sch. Dist., Appeal No. 18-088 (August 31, 2018), at pg. 8. The SRO found that, even when the parties “do not dispute that the parents failed to request special education services by June 1[,]” it was still the case that “the district prepared an IESP for the student and began providing [the] services . . . to the student at the nonpublic school. Thus, by making the conscious choice to proceed after the June 1 deadline by providing services . . . ‘for whatever reason,’ the district’s actions constituted an implied waiver.” Id. Here, the District made the conscious choice to provide Student with services. The operative IESP for the 2021-2022 school year included the following language: “Date of IESP Meeting: 01/25/2021”; “Projected Date IESP Is To Be Implemented: 02/08/2021”; and “Projected Date Of Annual Review: 01/25/2022” (Ex. B at 1). These dates clearly contemplated services beyond June 1, 2021, that extended into the 2021-2022 school year. As such, I find there was an implied waiver for the entirety of the period for which those services were to be provided. provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404.

A district cannot be absolved of its statutory obligation to implement services for the student simply by being inactive in implementing the mandated services. The DOE had the obligation to provide services to the Student in conformity with the IESP. See Educ. Law§ 3602c(2)(a), (b)(l). In failing to do so, the DOE failed to provide the Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district. More than that, it has been held that the Department may not effectively compel a parent to resort to self-help in obtaining a SETSS provider. See e.g., Application of a Student with a Disability, Appeal No. 21-101. Such a “de facto delegation from the district to the parent of the obligation to find a SETSS provider . . . at an acceptable rate is manifestly unreasonable” id., and a violation of State law. See Application of a Student with a Disability, Appeal No. 20-115 (“core instruction provided by a school district must be performed either by teachers who are employees of the district or pursuant to a contract for special education services that a district is specifically authorized by law to enter into”) (internal citation omitted, emphasis added); see also Application of a Student with a Disability, Appeal No. 20-087; and Application of a Student with a Disability, Appeal No. 20-140.

REMEDIES

The remedy for a school district’s failure to provide appropriate equitable services required under Education Law § 3602-c is similar to the remedy for a school district’s failure to provide appropriate services under the IDEA. See Application of a Student with a Disability, Appeal No. 20-023, citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 (D.Conn. 2017). Under the IDEA, courts can “grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA (see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 [2d Cir. 2002]), “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme, 790 F.3d at 454).

Compensatory Education

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 [2d Cir. 2008]. Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate”, and “hearing officers may award ‘educational services . . . to be provided prospectively to compensate for a past deficient program.’” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005). “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.” See Id. at 522. Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.” See Id. at 518.

There are generally two approaches to fashioning a compensatory education award: 1) the “quantitative” approach followed in the Third Circuit, see, e.g., M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 [3d Cir. 1996] [holding that a student denied a FAPE is entitled to compensatory education equal to the period of deprivation], and 2) the “qualitative” approach relied on by the 6th and D.C. Circuits, see, e.g., Reid, 401 F.3d at 518, 524 [requiring a flexible, fact-specific approach in which the award relies “on individual assessments” and is “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place”].

The Second Circuit has not taken a preferred approach, opting instead as a general practice to “leave the mechanics of structuring the compensatory education award to the district court’s sound discretion”, so long as “the relief is [] appropriate in light of the purpose of the Act” Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 [2d Cir. 2016]; see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 [E.D.N.Y 2008] [noting that “the Second Circuit has not articulated a test for determining how [compensatory education] services are calculated”, and awarding compensatory relief equal to the amount of time the student was deprived of services]. In calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP], or encompass analogous educational services appropriate to the Student’s current needs”; however, the ultimate award “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Doe. v. East Lyme, 790 F.3d at 457.

Under New York law, the DOE has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA. Education Law § 4404(1)(c). However, the Parent also has a responsibility to identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the DOE’s failure to provide the Student with a FAPE for the years at issue. See JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (E.D. Pa. 2021), [noting that “[w]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”]; Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 (D.D.C. 2017) [holding that a hearing officer “must solicit the evidence necessary to determine the student’s specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits”] [internal quotes and citation omitted].

Parent is seeking the services recommended in the January 25, 2021, IESP (Ex. C at 2). Parent explained that Student struggles in many academic and social/emotional areas and requires a lot of extra assistance to maintain their “mainstream placement” (Ex. C at 1). Additionally, Parent credibly testified that, despite their best efforts, they were unable to locate any SETSS or related service providers and that DOE failed to make available any SETSS or related service providers (Ex. C at 2). As a result, Parent testified that Student failed to receive SETSS or any of the recommended related services for the entire 2021-2022 school year (Ex. C at 2).

SETSS

The DOE did not present any evidence or testimony to challenge or rebut the lack of SETSS services to Student. Thus, in keeping with Parent’s request, I find that the District should fund the SETSS that were not provided during the ten-month 2021 – 2022 school year, that being three sessions per week, 60 minutes per session, for a total of 120 hours.^[7] These hours are sufficient to compensate Student for the District’s failure to implement the IESP.

Related Services

The DOE did not present any evidence or testimony to challenge or rebut the lack of related services to Student. Thus, in keeping with Parent’s request, I find that Student is entitled to the related services that were not provided during the ten-month 2021 – 2022 school year. Specifically, Student will be entitled to SLT, individual service, one session per week, 30 minutes per session, for a total of 20 hours; 8 SLT, group service, one session per week, 30 minutes per session, for a total of 20 hours; 9 Counseling Services, group service, one session per week, 30 minutes per session, for a total of 20 hours;^[10] and OT services, individual service, one session per week, 30 minutes per session, for a total of 20 hours.^[11] These hours are sufficient to compensate Student for the District’s failure to implement the IESP.

OTHER CONTENTIONS

I have reviewed Parents’ 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

8 This total was calculated based upon 30 minutes of services per week for a 40-week school year period.

9 This total was calculated based upon 30 minutes of services per week for a 40-week school year period. finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parents’ remaining claims not discussed herein are dismissed with prejudice.

ORDERS

Finding there to be no facts in dispute, and that there are no legal issues to resolve at hearing, IT IS HEREBY: ORDERED THAT the New York City Department of Education shall directly fund Special Education Teacher Support Services, Direct Service, Group Service, in English, three (3) periods per week, sixty (60) minutes per period, for a total of one hundred twenty (120) hours, for Student for the 2021-2022, 10-month, school year, to be administered by a licensed or certified provider of Parent’s choosing; and it is further; ORDERED THAT the New York City Department of Education shall pay the licensed or certified provider of Parent’s choosing outlined above at a rate which DOE has paid the same or similar provider within the last six (6) months as determined by the New York City Department of Education’s Implementation Unit within thirty-five (35) days of the New York City Department of Education’s receipt of a valid contract between Parents and the chosen provider(s), an affidavit attesting that the services billed for were provided and after submission of invoices for services rendered, and it is further

ORDERED THAT the New York City Department of Education shall fund a bank of compensatory Speech-Language Therapy services, on an individual basis, in English, one (1) session per week, thirty (30) minutes per session, for a total of twenty (20) hours, for Student for the 2021-2022, 10-month, school year, to be administered by a licensed or certified provider of Parent’s choosing; and it is further

ORDERED THAT the New York City Department of Education shall pay the licensed or certified provider of Parent’s choosing outlined above at a rate which DOE has paid the same or similar provider within the last six (6) months as determined by the New York City Department of Education’s Implementation Unit, within thirty-five (35) days of the New York City Department of Education’s receipt of a valid contract between Parents and the chosen provider(s), an affidavit attesting that the services billed for were provided and after submission of invoices for services rendered; and it is further

ORDERED THAT the New York City Department of Education shall fund a bank of compensatory Speech-Language Therapy services, on a group basis, in English, one (1) session per week, thirty (30) minutes per session, for a total of twenty (20) hours, for Student for the 2021-2022, 10-month, school year, to be administered by a licensed or certified provider of Parent’s choosing; and it is further

ORDERED THAT the New York City Department of Education shall fund a bank of compensatory Counseling Services, on a group basis, in English, one (1) session per week, thirty (30) minutes per session, for a total of twenty (20) hours, for Student for the 2021-2022, 10-month, school year, to be administered by a licensed or certified provider of Parent’s choosing; and it is further

ORDERED THAT the New York City Department of Education shall fund a bank of compensatory Occupational Therapy services, on an individual basis, in English, one (1) session per week, thirty (30) minutes per session, for a total of twenty (20) hours, for Student for the 2021-2022, 10-month, school year, to be administered by a licensed or certified provider of Parent’s choosing; and it is further

SO ORDERED.

Dated: December 5, 2023 /s/ Cynthia M. Lindblom

Cynthia M. Lindblom

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of the 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.

EVIDENCE

Parent

Exhibit Date Document Pages A 5/24/2023 DPC 4 B 1/25/2021 IESP 12 C 7/26/2023 Affidavit of Parent 2

DOE

N/A

IHO

N/A

APPENDIX

[REDACTED] Information Term Used In FOFD [REDACTED] Student [REDACTED] Parent [REDACTED] Parent’s Attorney [REDACTED] Agency Attorney

Footnotes

[1] No personal identifying information is contained within the body of this Findings of Fact and Decision (“FOFD”). For personal identifying information, please refer to the attached appendix. Further, this FOFD contains no references to the gender binary.

[2] References to the exhibits from the Due Process Hearing are denoted “Ex.”

[3] I note that the DPC refers to the January 25, 2021, document as an IEP, or Individualized Education Program, when the document is actually entitled an IESP.

[4] References to the transcript from the Due Process Hearing are denoted “Tr.”

[5] Settlement conferences are conducted by an OATH IHO not assigned to the case whose purpose is to aid the parties in exploring and facilitating a resolution to the DPC. The content of the conferences is confidential, and the parties are directed to attend with knowledge of the dispute and settlement authority should there be an interest in resolution. Settlement Conferences are not recorded and are not part of the record.

[6] Even if the District had introduced evidence, their argument would still fail. The District consciously created an operative IESP for the 2021-2022 school year, which I find implicitly waived any notification requirement. The SRO has considered the effect of the doctrine of implied waiver on the June 1 requirement in § 3602-c(2), as that doctrine was relied upon in the Second Circuit decision of N.L.R.B. v. New York Tele. Co., 930 F.2d 1009 (2nd Cir. 1991), which “held that a waiver will not be implied unless ‘it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them.’” Application of the Board of the Lewiston-Porter Centr.

[7] This total was calculated based upon 3 hours of services per week multiplied by a 40-week school year.

[10] This total was calculated based upon 30 minutes of services per week for a 40-week school year period.

[11] This total was calculated based upon 30 minutes of services per week for a 40-week school year period.

Impartial Hearing Decision