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FINDINGS OF FACT AND DECISION
Case No. 249370
Student’s Name: REDACTED
Date of Birth: REDACTED
Hearing Requested by: Parent
Record Close Date: September 22, 2023
Decision Date: September 22, 2023
Time Sensitive: YES
Hearing Officer: Eryn DeFontes, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
For the New York City Department of Education (“District” or “DOE”): — Parents
District Representative — Parents
PROCEDURAL HISTORY
On June 27, 2023, a due process complaint (“DPC”) was filed against the New York City Department of Education (“DOE” or “District”) by the Parent under Case No. 249370, pursuant to the Individuals with Disabilities Education Act (“IDEA”).[1] The undersigned Impartial Hearing Officer (“IHO ) was appointed on June 29, 2023. A due process hearing was held on August 24 and September 12, 2023. The Parent was not represented by counsel and proffered exhibits A through G, which were admitted into the hearing record. The District did not object to the contents therein. A list of the documentary evidence in this proceeding is appended to this Order.
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA, 2 and its implementing regulations,[3] and the New York State Education Law and its implementing regulations. [4]
BACKGROUND AND POSITIONS OF THE PARTIES
The Student is a REDACTED-year-old child who is classified by the DOE’s Committee on Special Education (“CSE”) as a child with a Disability.[5] The Student’s classification is not in dispute. The Student attends a private school. The Parent alleges that the DOE denied the Student a free appropriate public education (“FAPE”) for the 2023-2024 school year (“SY”), by failing to provide the Student specialized education and related services designed to meet the Student’s unique needs, by reducing the number of special education teacher support services (“SETSS”) hours from 15 to 10. [6]
With respect to relief, the Parent requests that the CSE reconvene and restore the Student’s hourly SETSS amount from 10 hours to 15. 7
20 U.S.C. § 1400 et seq.
LEGAL STANDARDS AND FRAMEWORK
In IDEA impartial due process proceedings conducted in New York, the burden is on the DOE to establish that it provided a student with a FAPE. 8 Both the IDEA and the Education Law provide that children with disabilities are entitled to a FAPE. 9 A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive IEP. 10 A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. [11]
Regarding students enrolled in nonpublic schools, the IDEA requires school districts to participate in a consultation process for making special education services available to students in nonpublic schools and to “allocate a proportional share of federal IDEA funds to provide special education and related services to parentally-placed private school children” with disabilities.[12] “Th[ese] more limited services provided to parentally-placed children in private schools is commonly known as equitable participation, and is distinct from the FAPE requirement.”[13] In New York, “Boards of education . . . 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 or person in parental relation of any such student.” 14 The “request shall be reviewed by the committee on special education [CSE] of the school district of 8 M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017).
20 U.S.C. § 1400 (d)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
20 U.S.C. §§ 1401(9), (29).
location, which shall develop an individualized education service program [IESP] for the student . . . [and] assure that special education programs and services are made available to students with disabilities . . . on an equitable basis” to programs at other public or nonpublic schools in that district.[15] This law is known as the “dual enrollment” statute. [16]
In IDEA due process proceedings, School districts have the burden of proof, including the burden of persuasion and burden of production, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement.[17] As this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.[18] In this case, the DOE did not present any witness testimony or documentary evidence to explain why the Student’s SETSS hours were reduced from 15 to 10 hours, despite the Supreme Court’s admonition that “[a] reviewing court may fairly expect those authorities [school district staff] 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 their circumstances”. [19]
Additionally, the DOE did not object to nor contest the evidentiary material submitted by the Parent. Consequently, the Parent is entitled to a presumption as to the truth of the facts set forth in the documentary evidence, to the extent those facts are credible and not contradicted by the hearing record. Nevertheless, the evidence establishes that the DOE failed to provide the Student with specialized education and related services designed to meet the student’s needs for the SY at issue through its failure to provide the Student with an IEP that was reasonably calculated to provide the Student with some meaningful benefit. 20
FINDINGS OF FACT AND DECISION
The Student currently attends a private school. On May 16, 2023, a CSE meeting was held to formulate an IEP and IESP for the Student. The Parent was in attendance.[21] The IEP and IESP (“IEP/IESP”) note the evaluative data used to inform the recommendations as a March 2023 SETSS progress report (“progress report”) and a Speech Language Progress Report. [22] However, the Prior Written Notice (“PWN”) also cites a neurological assessment. [23]
The progress report, which is directly quoted throughout the IEP/IESP, notes the following:
While [Student] is able to read most grade level text orally with accuracy, [she] continues to need additional support with her rate and prosody to become more fluent. 24
[Student] has great difficulty demonstrating an understanding of text beyond a literal level. She is able to recall events in story and identify some details in text but labors in distinguishing important events, key details, making inference, summarizing and making connections. 25
Writing: During the meeting it was reported that [Student] has great ideas but struggles to put them on paper. 26 The writing process is very difficult for [Student]… she struggles with crafting complete sentences, sentence extensions, revising and editing her work. [27]
[Student] has demonstrated a better effort in Math. She is beginning to recognize patterns and relationships in numbers. [Student] continues to have some difficulty with skip counting by 3’s, 5’s and 10’s correctly unless she is prompted to do so. Her difficulties are inconsistent, that is, some days she is better at it than others. [Student] continues to need manipulatives such as counters and number lines, as well as use her fingers to add and subtract correctly. In addition, she needs help with strategy and goal when solving word problems. [Student] has shown improvement in solving addition/subtracting equations using a visual place value chart but she needs continued prompting to complete work/stay focused. 28
Among other special education services, the abovementioned IEP/IESP recommended SETSS (direct and group) in Math, 5 times per week, and English Language Arts (“ELA”), 5 times per week, for a total of 10 hours per week. The Parent maintains that this is a reduction from the 15 hours the Student was previously recommended. [29]
The IEP/IESP notes the Parent’s disagreement with the reduction in SETSS hours:
The parent stated that [Student ]struggles to express her ideas and comprehend what she has read at times. She struggles with her executive function skills with effects her writing skills, [sic] and being able to organize and put her thoughts down on paper. The parent stated that [Student] avoids doing math at home. She has great anxiety surrounding math and doing exams. [30]
The parent stated that her math skills are not on the same level as peers. The parent and school representatives were in disagreement with the decrease of SETSS support. They stated that [Student] requires 15 hours of SETSS support to continue to make academic progress. 31
Although it has been held that a “parental disagreement with a school district's proposed IEP does not amount to a denial of meaningful participation”, 32 the progress report cited in the IEP/IESP document Student’s ongoing need for 15 hours of SETSS, “It is imperative that [Student’s] current service plan remain in place so Student can continue to strengthen her skills.” 33 Moreover, despite some documented improvement, the progress report clearly identifies Student’s significant and ongoing challenges in Math and ELA. 34
The DOE offered no evidence to refute the above findings, nor did the DOE present a cogent explanation for the reduction of the Student’s SETSS hours. To wit, the IEP/IESP in addition to the PWN fail to adequately explain the reduction in SETSS from 15 to 10 hours per week but merely states:
A general education setting without Special Education Teacher Support Services would not provide adequate support to address [Student’s] educational needs. Special
Class in a community school 12:1 was deemed too restrictive. This IEP recommends an appropriate program and related services in the least restrictive environment and is reasonably calculated to enable [Student] to meet her goals and make academic progress. 35
Relief
The Parent in this case seeks CSE review “of new academic reports and use of current psychologist, counselor and teacher evaluation to determine number of hours for SETSS.” 36 As a general matter, the district has an obligation to review the IEP of a student with a disability periodically but at least annually, and the CSE, upon review, must revise a student's IEP as necessary to address: "[t]he results of any reevaluation"; "[i]nformation about the child provided to, or by, the parents" during the course of a review of existing evaluation data; the student's anticipated needs; or other matters. 37 State regulations additionally provide that, if parents believe that their child's placement is no longer appropriate, they "may refer the student to the [CSE] for review". 38
Based upon the foregoing and in the absence of contradictory evidence or objection from the DOE, the Parent’s request that the CSE reconvene and consider the recommendations referenced in this decision, is granted. It is widely held that Courts may award various forms of retroactive and prospective equitable relief: “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves”. 39 Lastly, equitable considerations are relevant in fashioning relief, and the court enjoys broad
35 IHO ii 29; IHO iv 2. 36 IHO i. 37
20 U.S.C. 1414[d][4][A]; 34 CFR 300.324[b][1][ii][C]; 8 NYCRR 200.4[f][2][ii]. Parent proffered additional documentation in support of an increase in SETSS hours (P-D; P-F). 38
8 NYCRR 200.4[e][4].
See Reid at 522. (citations omitted).
discretion in doing so. 40
CONCLUSION:
The DOE denied the Student a FAPE for the 2023-2024 school year and the CSE shall be Ordered to reconvene and consider the evaluations and reports referenced in this decision.
ORDER
Based upon the above Findings of Fact, it is hereby:
ORDERED that the DOE shall convene an IEP meeting, at a time and place convenient for the Parent, within 15 days of this Order, to review and include the results of the evaluations and reports referenced in this decision, and develop an appropriate IEP that includes, at a minimum:
a) A total of at least fifteen (15) hours of direct and group SETSS (comprised of both
Math and ELA).
IT IS FURTHER ORDERED that the DOE’s implementation unit shall authorize all services hereby ordered within 15 (fifteen) days.
SO ORDERED.
Dated: September 22, 2023 Eryn DeFontes
Eryn DeFontes, Esq.
Impartial Hearing Officer
40 See Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16 (1993); see also, Letter to Zirkel, 81 IDLER 22, (2022) (“inclusion or omission of a proposed resolution should not be read to create conflict with, or limitation upon, an impartial hearing officer’s authority and ability to formulate an appropriate equitable remedy”).
DOE Exhibits
NONE
Parent’s Exhibits:
Exhibit: #A STUDENT Neuropsych 2021 #B Psychologist evaluation REDACTED #C STUDENT 2023 SETSS Report #D Affidavit from TEACHER 8/18 #E _Gr2_ParentReports_Spring23 (pdf.io).pdf MAPP Score #F Support Letter Supplemental #G Speech Therapist report 3-23
IHO Exhibits
IHO i DPC
IHO ii IEP 5/16/23 IHO iii IESP 5/16/23 IHO iv PWN 5/16/23
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of their 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
Footnotes
[1] IHO i; 20 U.S.C. Section 1415(f)) and Section 4404(1) of the New York State Education Law.
[3] 34 C.F.R. § 300 et seq.
[4] Educ. Law Art. 89 § 4404 et seq., 8 NYCRR § Part 200.
[5] IHO ii, iii.
[6] IHO i; Tr. 55; See also, 20 U.S.C. §§ 1401(9), (29). Tr. 8.
[11] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[12] See E.T. and D.T. ex rel. E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at 10 (S.D.N.Y. 2012) (citing J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 665 [S.D.N.Y. 2011] [internal quotation marks omitted]); see also 20 U.S.C. § 1412(a)(10)(A)(i)-(ii); 34 C.F.R. §§ 300.131 – 300.133, 134).
[13] E.T. and D.T. ex rel. E.T., supra., at 11 (internal quotations and citations omitted); c.f. Application of a Student with a Disability, Appeal No. 20-115 (Sept. 3, 2020) at pg. 4 (noting that in a particular case the difference in applying a FAPE standard or an “equitable services standard” is a “distinction without a difference” where N.Y. Educ. Law § 3602-c “has been routinely treated . . . as providing eligible students with an individual right to special education services that must be tailored to the student’s particular needs by the CSE” that are then protected “through the due process hearing system called for by the IDEA” (internal citations omitted). N.Y. Educ. Law § 3602-c(2)(a).
[15] Id. at § 3602-c(2)(b) (emphasis added).
[16] See Application of a Student with a Disability, Appeal No. 20-115 (Sept. 3, 2020) at pg. 1.
[17] NYS Educ. Law § 4404(1)(c).
[18] The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).
[19] Endrew F., 137 S.Ct. at 1002. (emphasis supplied). P-C-23; P-D-1; P-G-3; See also, Rowley at 206-07
[21] Parent participated via telephone (IHO ii 1; 29).
[22] Id. at 1; P-C; P-G.
[23] IHO iv 2. 24 Id. 25 Id. 26 Id.
[27] Id. at 2. IHO ii-2.
[29] IHO i; Tr. 5.
[30] IHO ii-3. 31 Id. at 29. 32 See P.K., 569 F. Supp. 2d at 383 ["A professional disagreement is not an IDEA violation"]; Sch. for Language and Commc'n Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] ["Meaningful participation does not require deferral to parent choice"]; 33 Id. at 3; P-C-3. IHO ii 1-3; P-C.