FINDINGS OF FACT AND DECISION - 250098

NEW YORK STATE EDUCATION DEPARTMENT

IMPARTIAL DUE PROCESS HEARING

Case Cover Sheet

IHRS or NYC Case No.: 250098

School District: [Redacted]

Impartial Hearing Officer: Patricia L. Murrell, Esq., IHO

Request/Complaint Date: July 5, 2023

Date of Appointment: July 7, 2023

Filed/Date of Decision: December 3, 2024

NEW YORK STATE EDUCATION DEPARTMENT

IMPARTIAL DUE PROCESS HEARING

STUDENT, a minor, by and through Case No. 250098

his/her Parent(s),

[REDACTED]

Petitioners,

Patricia L. Murrell, Hearing Officer

- against -

New York City Department of Education

School District # [Redacted]

FINDINGS OF FACT AND DECISION

Respondent.

I. INTRODUCTION^[1]

This matter comes before the undersigned Impartial Hearing Officer (“Hearing Officer” or “IHO”), pursuant to the impartial hearing request and demand for due process (“Complaint”) filed on July 5, 2023, by the petitioner, [Redacted], the parent (“Petitioner” or “Parent) of [Redacted], currently a [Redacted]-year-old student with a disability (“Student”), as against the New York City Department of Education (“NYC-DOE”), Committee on Special Education (“CSE”) [Redacted], District [Redacted] (“Respondent” or “District”, together with Petitioner or Parent, the “Parties”).

On July 7, 2023, this Hearing Officer was appointed to preside over Case No. 250098. The Prehearing Conference (“PHC”) was held on August 17, 2023, during which the Parent confirmed that the primary issue presented for determination, as detailed in the Complaint related to a denial of a free appropriate public education (“FAPE”) for the 2023/2024 school year; based on the District’s alleged failure to provide or locate a provider for the Student’s special education teacher support services (“SETSS”), as mandated in the individualized education services program (“IESP”), dated June 6, 2022. Status Conference(s) were held on September 20, 2023, October 19, 2023, November 16, 2023, and December 21, 2023, during which it was reported that a proposed offer for resolution was being negotiated; however, on January 23, 2024, the Parties reported that the issues could not be resolved, and dates were selected for the due process hearing (“Hearing”).

II. JURISDICTION

This Findings of Fact and Decision (“Decision”) is being rendered in accordance with the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et. seq. (“IDEA”); the Federal Regulations implementing IDEA, 34 C.F.R. 300.1 et seq.; Codes, Rules and Regulations of the State of New York, 8 NYCRR § Part 200; New York State Education Law, and its implementing Regulations, Educ. Law Art. 89 § 4404, et. seq.; and Educ. Law Art. 73 § 3602-c, et. seq.

III. BACKGROUND

The Petitioner was represented by [Redacted], Esq., Attorney for the Parent. Respondent was represented by [Redacted], Esq., Attorney for the District. The Hearing was Closed. On February 13, 2024, the Parties provided their respective opening statements on the record during the Hearing (the “Hearing Record”). On March 7, 2024, the District’s proposed exhibits (1 through 8) were proffered for submission into evidence, with an objection as to exhibit “7”, which was overruled; and the Parent’s proposed exhibits (A through H) were proffered for submission into evidence, without objection. On April 17, 2024, the Respondent presented testimony of Special Education Teacher [Redacted] (“Special Education Teacher”); and the Petitioner presented testimony by the Parent, and the Executive Director of the [Redacted], LLC (“Agency”), [Redacted] (“Director”). Thereafter, on May 9, 2024, the Petitioner presented testimony by Special Education Itinerant Teacher (“SEIT”) [Redacted] (“SETSS Provider”). Each of the witnesses attested that the testimony provided during the Hearing was true and correct; and all of the witnesses were subjected to cross-examination. The Hearing set for May 23, 2024 was rescheduled for continuation due to disclosure issues; and on June 11, 2024, the Parent’s supplemental exhibits (I through L) were proffered for submission into evidence, without objection; the Parties presented their oral closing statement(s) and the Hearing was concluded. The Hearing Transcript(s) were circulated to the Parties on February 14, 2024, March 11, 2024, April 22, 2024, May 13, 2024, May 24, 2024 and June 13, 2024. On July 16, 2024, the District submitted its Post-Hearing/Closing Brief; ^[2] however, despite directive, the Parent did not submit a Post-Hearing/Closing Brief. The Record was Closed on November 19, 2024.

IV. ISSUES PRESENTED

This Hearing Officer certified the following issue(s) for adjudication at the Hearing:

A. Whether the Whether the District denied the Student a FAPE and/or Equitable Services for the 2023/2024 school year.

B. Whether the District should fund the total cost of SETSS services provided to the Student during the 2023/2024 school year.

V. FINDINGS OF FACT

After considering all the evidence in the Hearing Record, as well as the arguments asserted by both Parties, this Hearing Officer’s Findings of Fact are as follows:

1. On June 6, 2022, the CSE convened a meeting (“2022 CSE Meeting”), which was attended by the Parent, and the Special Education Teacher serving in a dual capacity as the District Representative (together, the “2022 CSE Team”); who classified the Student with an Other Health Impairment, and developed an IESP with an implementation date of September 8, 2022, and a projected annual review date of June 6, 2023 (“2022 IESP”); which referenced the results of the 2022 Occupational Therapy Progress Report, 2022 Teacher Report, 2022 Speech and Language Progress Report and 2022 Audiologist Report (collectively, the “2022 Reports”); and indicated that the Student was parentally placed in a non-public school (“NPS”). The 2022 IESP recommended Group SETSS (10/week), 1:1 Hearing Education Services (“HES”) (2/30), 1:1 Occupational Therapy (“OT”) (2x30), Speech-Language Therapy (“SLT”) (3x45), and 1:1 Counseling (1x30), to be provided at a separate location; together with 1:1 Paraprofessional for behavioral support, and an individual Frequency Modulation (“FM”) Unit to be used throughout the school day (“2022 Recommended Program”). ^[3]

2. On February 21, 2023, [Redacted], AuD, CCC-A conducted an Audiological Evaluation, which recommended the Student’s use of hearing aids during all waking hours, to assist with his communication, behavior, optimal listening skills and speech clarity; together with an FM system and/or remote microphone in academic settings and adverse listening environments (“2023 Audiological Evaluation”). ^[4]

3. On February 24, 2023, the SETSS Provider issued a Progress Report, which indicated that the Student’s reading speed had improved significantly; showed an emerging ability to spell simple words phonetically and express his thoughts using short sentences; demonstrated some regression in his math skills due to more rigorous curriculum; and had difficulty comprehending grade-level science and social studies concepts. The SETSS Provider highly recommended summer services for the Student because he requires consistent explanations, repetition and individualized assistance in academic related activities and concepts. (“2023 SETSS Progress Report”). ^[5]

4. On March 1, 2023, [Redacted], M.S. CCC-SLP issued a Speech/Language Progress Report, which indicated that the Student’s speech and language skills in reading, writing and math were significantly lower than his peers; despite significant progress, he continued to struggle with decoding unfamiliar words, reading non-phonetic words, requiring direct instruction and use of cognitive strategies. It was recommended that the Student would benefit from increased, repetitive practice to gain new skills, verbal reminders and external reinforcements; and that he should continue SLT (3x45) (“2023 Speech and Language Progress Report”). ^[6]

5. On March 6, 2023, the CSE convened a meeting (“2023 CSE Meeting”), which was attended by the Parent, General Education Teacher [Redacted], and the Special Education Teacher serving in a dual capacity as the District Representative (together, the “2023 CSE Team”); who classified the Student with an Other Health Impairment, and developed an IESP with an implementation date of September 7, 2023, and a projected annual review date of March 6, 2024 (“2023 IESP”); which referenced the results of the 2023 SETSS Progress Report, 2023 Speech and Language Progress Report, 2023 Occupational Therapy Progress Report, 2023 Audiological Report, and 2023 Paraprofessional Justification Letter (collectively, the “2023 Reports”). The 2023 IESP noted that the Student’s significant hearing loss, speech-language deficits and inattention, makes it difficult for him to progress at a reasonable rate/pace in all content areas in the general education setting; and he requires academic supports and scaffolds to allow him to access the general education curriculum in Math and ELA; it is expected that the Student can make gains, and participate fully in all appropriate school-related activities with the support of his 1:1 Paraprofessional. The 2023 IESP indicated that he was parentally placed in an NPS; and recommended Group SETSS (10/week), 1:1 HES (2/30), 1:1 OT (2x30), SLT (3x30), and 1:1 Counseling (1x30), all to be provided at a separate location; together with a full-time 1:1 Paraprofessional, and an individual FM Unit for use throughout the school day (“2023 Recommended Program”). ^[7]

6. On May 5, 2023, the Parent executed a form obtained from the NYC-DOE, which indicated that the Student had been parentally placed in an NPS and would commence attendance in September 2023 at [Redacted] (“Private School”); the Parent sought a continuation of special education services for the 2023/2024 school year; and provided permission to the NYC-DOE to disclose information regarding the Student to the District of residence (“Notice of Intent for Continued Services”). ^[8]

7. On June 5, 2023, the CSE convened a meeting (“June 2023 CSE Meeting”), which was attended by the Parent, General Education Teacher [Redacted], and the Special Education Teacher serving in a dual capacity as the District Representative (together, the “June 2023 CSE Team”); who continued the Student’s classification of Other Health Impairment, and developed an Individualized Education Program (IEP) with an implementation date of July 5, 2023, and a projected annual review date of June 5, 2024 (“2023 IEP”); which referenced the results of the 2023 Reports. The 2023 IEP recommended a placement for the Student in NYC-DOE School Non-Specialized (District 1-32); together with 1:1 OT (2x30) and SLT (3x30), to be provided at a separate location with a provider, commencing July 5, 2023 through August 14, 2023 (the “2023 Recommended Summer Program”). ^[9]

8. On June 8, 2023, Assistant Professor of Pediatrics [Redacted], MD (“Pediatrician”) issued a Developmental Evaluation Letter, which determined that the Student was diagnosed with a Sensorineural Hearing Loss, Language Disorder, with Learning Difficulties and symptoms of Attention Deficit Hyperactivity Disorder (“ADHD”) (together, the “Student’s Diagnoses”). The Pediatrician recommended that the Student should continue to receive services and accommodations through an IEP; together with the support of a paraprofessional to provide behavioral interventions, redirection and refocusing to task, and explanation and/or clarification of instructions as needed (“2023 Developmental Evaluation Letter”). ^[10]

9. On June 27, 2023, the District issued a Prior Written Notice (“PWN”), which reiterated the recommendations in the 2023 IEP, and stated that General Education was considered as an option by the 2023 CSE Team but rejected on the basis that the Student’s “needs can be met with [SETSS] in the general classroom”. (“2023 PWN”). ^[11]

10. On July 1, 2023, an Agreement for Services was fully executed by the Parent and Director, which indicated that the Agency would provide the Student with SETSS (10/wk.) at an hourly rate of one-hundred-seventy-five ($175.00) dollars, for the twelve-month period during the 2023/2024 school year; with the understanding that the Parent is responsible to pay for the services if the NYC-DOE is not required or fails to do so (“Agency Contract”). ^[12]

11. On October 24, 2023, a Pendency Implementation Form was executed and issued, based on the uncontested FOFD for Case No. 227896, in which the District agreed to provide special education program and services to the Student, nunc pro tunc, to the date the Complaint was filed on July 5, 2023, for a collective 12-month extended school year (“ESY”), continuing until such time as a final decision was issued or settlement reached; more particularly, the pendency program included, Group SETSS for Math (5/wk.), Group SETSS for English Language Arts (“ELA”), and 1:1 OT (1x30) during July and August 2023; together with Group SETSS (10/wk.) and 1:1 OT (2x30) for ten (10) months; and 1:1 HES (2x30), 1:1 SLT (3x45), 1:1 Counseling (1x30), 1:1 Paraprofessional and an FM Unit, on an ESY basis (together, the “2023/2024 Pendency Program”). ^[13]

12. On November 1, 2023, the SETSS Provider issued a Progress Report, which indicated that the Student had made great progress in reading and moderate improvement in math; exhibits significant delays in understanding concepts; still requires consistent explanations, constant repetition, individualized remediation and assistance in academic related activities and concepts; and exhibits regression in his skills during the long weekends (“November 2023 SETSS Progress Report”). ^[14]

13. On February 14, 2024, the SETSS Provider issued a Progress Report, which indicated that the Student had made great progress in math; his decoding skills were consistent with grade-level; his receptive and expressive language skills, and ability to answer questions logically had improved; however, he requires more help in his comprehension, continues to have great difficulties in spelling and writing, exhibits significant delays in understanding concepts covered by social studies and science, and exhibits regression after long weekends and summer/holiday breaks. (“2024 SETSS Progress Report”). ^[15]

14. On May 16, 2024, the Executive Director of the Agency, [Redacted], duly-executed an Affidavit attesting that three-hundred-ninety-six (396) sessions of SETSS was delivered to the Student during the period between July 10, 2023 and May 10, 2024, at an hourly/session rate of one-hundred-seventy-five ($175.00) dollars, which aggregated to a total cost of sixty-nine-thousand-three-hundred ($69,300.00) dollars, as delineated in the ‘Attendance/Accounting Statement’. The Executive Director anticipated that an additional sixty-four (64) hours of SETSS would be provided to the Student by June 20, 2024, at an estimated cost of eleven-thousand-two-hundred ($11,200.00) dollars; which totals four-hundred-sixty (460) hours for the 2023/2024 school year, at an aggregate cost of eighty-thousand-five-hundred ($80,500.00) dollars (“Accounting Affidavit”). ^[16]

15. The Respondent proffered the Special Education Teacher [Redacted] as a witness, who holds a Master’s in School Administration; Master’s in Special Education; Master’s in Communication; Bachelor’s in Psychology; New York State (“NYS”) Permanent Certificate in Special Education; NYS Permanent Certificate in General Education.

16. The Special Education Teacher testified that she attended the 2023 CSE Meeting, during which the Parent requested services be provided to the Student during the summer; however, the 2023 CSE Team explained to the Parent that they did not believe that SETSS was appropriate because the proposed summer camp was not within an academic setting, and the SETSS Provider would be required to reinforce his academic skills. ^[17]

17. The Petitioner proffered the Parent as a witness, who testified regarding the Student’s Diagnoses, his educational history received through early intervention services (“EIS”) and the committee on preschool special education (“CPSE”). The Parent confirmed her attendance at the 2023 CSE meeting, during which the Special Education Teacher advised that the Student would not be entitled to receive SETSS because the summer camp was in a recreational not academic setting; in response to wit, the Parent testified that she was baffled because the Student had previously received SETSS during the 2022 summer period when he was at home, and it was anticipated that the Student would only be attendance at the summer camp for three (3) weeks during the 2023 summer period.

Further testifying that the Private School gave the Student an enormous packet of homework for the summer, which he was expected to complete, and the SETSS Provider was needed to help reinforce his skills learned during the academic year because he has a history of regression. The parent authenticated the terms of the Agency Contract. ^[18]

18. During cross-examination, the Parent testified that she executed the Agency Contract based upon her reliance on the determinations reached by the 2022 CSE Team that the Student needed SETSS during the summer, as set forth in the last-agreed 2022 IEP. The Parent confirmed that although the Student received his mandated OT, he did not receive SLT because she could not locate a provider.^[19]

19. During redirect, the Parent testified that because the Student was having continuous SETSS services, he was able to retain the old concepts while building upon them; and while he continues to struggle and have challenges in the areas of language, science, social studies and spelling, and has some learning difficulties with multiplication, he made good progress in math. ^[20]

20. The Petitioner proffered the Executive Director of the Agency, [Redacted], who holds a Master’s in Special Education; and Master’s in General Education.

21. The Director authenticated the Agency Contract and confirmed that the Agency charged an hourly rate of one-hundred-seventy-five ($175.00) dollars for SETSS services provided to the Student during the 2023/2024 ESY. ^[21] During cross-examination, the Director testified that the Agency rate was allocated to the SETSS Provider at seventy-five ($75.00) dollars/hour, and the remaining one-hundred ($100.00) dollars was used to address Agency overhead costs; including, inter alia, compliance, staff supervision and development, insurance, loan costs, programs apps and the Student’s portfolio. ^[22]

22. The Petitioner proffered the SETSS Provider, [Redacted] as a witness, who holds a Master’s in Special Education; Master’s in General Education; Master’s in History/Archeology; Bachelor’s in Elementary School Education; NYS Professional Certificate in Special Education; and NYS Professional Certificate in General Education.

23. The SETSS Provider testified that she has worked with the Student since Kindergarten and provided SETSS services (10/wk.), during which she accessed his Google classroom, and remediated his schoolwork and homework. The SETSS Provider testified that the Student made significant progress in reading and some progress in math; with moderate improvement in social studies. Further testifying that she works on other subjects with him and needs to remediate everything several times to ensure his comprehension. ^[23]

VI. CONCLUSIONS OF LAW AND DISCUSSION

This Hearing Officer will examine the facts established by documentary and testimonial evidence contained in the Hearing Record; and determine the proper application of Federal and State Regulations, Statutes and Caselaw, to render a Decision that discusses the following, as applicable to the 2023/2024 school year: (1) whether the Student was entitled to SETSS; (2) whether the District failed to locate a SETSS provider; (3) whether the District met its statutory burden of proof, production and persuasion relating to the alleged denial of FAPE; and (4) whether equitable considerations favor an award directing District funding for SETSS.

A. IDEA

The IDEA’s purpose is “to ensure that all children with disabilities have available to them a free appropriate public education.” T.K. v. N.Y.C. Dep’t of Educ., 810 F.3d 869, 875, (2d Cir. 2016); citing 20 U.S.C. § 1400(d)(1)(A). More particularly, the IDEA seeks to ensure that (1) 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) the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-239 (2009); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). The Second Circuit finds that, “[i]n practice, this means that [the Districts] have an affirmative obligation to provide a basic floor of opportunity for all children with disabilities, … described [as] an education likely to produce progress, not regression, and one that affords the student with an opportunity greater than mere trivial advancement.” T.K., 810 F.3d 869, 875; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005); quoting Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009); P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008).

The centerpiece of the IDEA and its principal mechanism for achieving the goal of “a basic floor of opportunity for all children with disabilities” is the IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); D.S. v. Bayonne Bd. of Educ., 54 IDELR 141 (2010); quoting Polk v. Cent. Susquehanna Intermediate Unit, 16, 853 F.2d 171, 173 (3d Cir. 1988). The IEP is the means by which special education and related services are tailored to the unique needs of a particular child. Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017); quoting, Rowley, 458 U.S. 176, 181. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak, 142 F.3d 119, 130; see Rowley, 458 U.S. 176, 203. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” Walczak, 142 F.3d 119, 132; quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989).

B. FAPE

FAPE must be offered to each Student with a disability residing in the District who requires special education services or programs. 20 U.S.C. §1412(a)(1)(A); Educ. Law §4402(2)(a)(b)(2). The District offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”. Rowley, 458 U.S. 176, 203. A FAPE is offered to a student when (a) the board of education 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. Rowley, 458 U.S. 176, 206-207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012); M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra, 427 F.3d 186, 192. However, under the IDEA, a substantive violation may arise where the substantive content, such as the educational services, contained in the IEP, is insufficient to afford FAPE; and procedural violations may occur when the District fails to comply with the IDEA’s process-based requirements.

The IDEA directs that a two-part inquiry must be made based on substantive grounds and procedural inadequacies, to determine whether a Student received a FAPE. 20 U.S.C. §1415(f)(3)(E). At the first step, Courts examine whether there were procedural violations of the IDEA, namely, “whether the state has complied with the procedures set forth in the IDEA.” Cerra, 427 F.3d 186, 192. If procedural violations are alleged, then a determination is made that the Student did not receive a FAPE, only if the District’s alleged procedural inadequacies: (a) impeded the Student’s right to a FAPE, (b) significantly impeded the Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student, or (c) caused a deprivation of his/her educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d 167, 190; M.H., 685 F.3d. 217, 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009). Courts then examine whether the IEP was substantively adequate, namely, whether it was “reasonably calculated to enable the child to receive educational benefit[s].” Cerra, 427 F.3d 186, 192; quoting, Rowley, 458 U.S. 176, 206-

07. Since Rowley, Courts have generally viewed violations of FAPE as substantive when they involve:

(1) content, adequacy and compliance with an IEP;

(2) implementation of the IEP; or (3) failure to educate in the least restrictive learning environment. Substantive inadequacy automatically entitles the Parents to reimbursement. As discussed more fully infra, an examination was undertaken by this Hearing Officer to determine whether the Student’s right to a FAPE was procedurally and/or substantively hindered by the District, during the 2022/2023 school year.

C. IESP

Traditionally, an appropriate educational program begins with an IEP, which includes a statement of the student’s present levels of academic achievement and functional performance (34 C.F.R. 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008); establishes annual goals designed to meet the student’s needs resulting from the student’s disability and enables him or her to make progress in the general education curriculum 34 C.F.R. 300.320(a)(2)(i); 34 C.F.R. 300.320(2)(i)(A); 8 NYCRR 200.4(d)(2)(iii); and provides for the use of appropriate special education services. 34 C.F.R. 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)(6). The Supreme Court has indicated that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” Endrew F., 137 S. Ct. 988, 999. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created”. Endrew F., 137 S. Ct. 988, 1001. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit”. Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); Endrew F., 137 S. Ct. 988, 1001 (the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Rowley, 458 U.S. 176, 192. The student’s recommended program must also be provided in the least restrictive environment

(“LRE”). 20 U.S.C. §1412(a)(5)(A); 34 C.F.R. 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR

200.1(cc); 8 NYCRR 200.6(a)(1); Newington, 546 F.3d 111, 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d 119, 132.

In order to meet its legal obligations, the District must have an IEP in effect at the beginning of each school year for each child with a disability in its jurisdiction. 34 CFR 300.323(a); 8 NYCRR 200.4(e)(1)(ii); Cerra, 427 F.3d 186, 194; K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), aff'd, 530 Fed. App’x 81 (2d Cir. 2013); B.P. v. New York City Dep’t of Educ., 841 F. Supp.2d 605, 614 (E.D.N.Y. 2012); Tarlowe, 2008 WL 2736027, at *6. Similarly, when a student with disabilities who resides in New York attends an NPS, Article 73 of the New York State Education Law allows for the creation of an IESP under the “dual enrollment” statute. Educ. Law §3602-c. Separate from the services plan proposed under the IDEA, the Education Law requires the District to review a parental request for dual enrollment services and “develop an [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an [IEP].” Educ. Law § 3602-c(2)(b)(1). The dual enrollment statute has been routinely treated by the New York Court of Appeals 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 as well as the right to seek redress through the due process hearing system called for by the IDEA. The Courts have addressed the question of whether a District must provide special education programs and services to a student with a disability at the student’s NPS and found that the location in which services are provided to a parentally-placed NPS student with a disability pursuant to Section 3602-c should be determined based on what is appropriate to meet the individual educational needs of the Student, with consideration given to least restrictive environment principles. Bd. of Educ. of Bay Shore Union Free Sch. Dist. v. Thomas K., 14 N.Y.3d 289, 293-94 (2010); Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 183-88 (1988).

Dual enrollment provides that the NYS resident Student who was parentally placed in an NPS, is also regarded as being enrolled in the public-school District for the purpose of receiving special education programming under Education Law § 3602-c, services for which the District may be held accountable through an impartial hearing. The IDEA directs that, in general, this Hearing Officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. §1415(f)(3)(E)(i). The District offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”. Rowley, 458 U.S. 176, 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an [IESP].” Walczak, 142 F.3d 119, 130; see Rowley, 458 U.S. 176, 203. “The adequacy of a given [IESP] turns on the unique circumstances of the child for whom it was created”. Endrew F., 137 S. Ct. 998, 1001. The IDEA’s purpose is “to ensure that all children with disabilities have available to them a free appropriate public education.” T.K., 810 F.3d 869, 875, citing 20 U.S.C. § 1400(d)(1)(A). However, in order to determine whether a Student is eligible to receive a FAPE under the IDEA, the District must first conduct an initial evaluation to identify the Student’s educational needs. 20 U.S.C. § 1414(a)(1)(A); 34 C.F.R. 300.301(a). Therefore, to provide this Student a FAPE, an IESP developed and recommended by the District must reflect timely and comprehensive evaluation results (8 NYCRR § 200.4(d)(2)(i)); and “must include special education and related services tailored to meet the unique needs of a particular child and be reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Bd. of Educ. of Hyde Park., 459 F.3d 356, 363 (2d Cir. 2006).

In pertinent part, Chapter 378 of the Laws of 2007 – Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State Education Law Section 3602-c, (Sept. 2007) (“ Guidance Memo ”), explains that providing services on an “equitable basis” means that “special education services are provided to parentally placed [NPS] students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district.” The Guidance Memo also provides that “parentally placed [NPS] students must be provided services based on need and the same range of services provided by the district of location to its public-school students must be made available to nonpublic students, taking into account the student’s placement in the [NPS] program.” Educ. Law § 3602-c(2-a). If any disputes occur between parents and school districts related to IESPs, State law provides that “[r]eview of the recommendation of the [CSE] may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of Education Law § 4404,” which effectuates the due process provisions called for by the IDEA. Educ. Law § 3602-c(2)(b)(1). Incorporated among the procedural protections of the IDEA and the analogous State law provisions is the Parent’s opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. 20 U.S.C. §§ 1221e-3, 1415(e)-(f); Educ. Law § 4404(1); 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5(h)-(l). It is widely held that if a parent enrolls the child in public school in the District where the child resides, the District must make FAPE available and be prepared to develop an IEP for the child. “ Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools ” 80 IDELR 197 (OSERS 2022); see also Guidance Memo, Attachment 1 at p. 12, VESID Mem. (Sept. 2007). ^[24]

i. IMPLEMENTATION OF IESP

The Parent contends that the District failed to implement the 2022 IESP by neither (i) providing the services mandated by the IESP, nor (ii) locating a SETSS provider for the Student.

The centerpiece for the implementation of FAPE is the IEP or IESP. S.H. v. State- Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 264 (3d Cir. 2003). Although the statutory scheme of New York State Education Law Section 3602-c, levies the responsibility of selecting and placing the Student in an NPS on the Parent, the implementation of the special education program and related services called for by the Student’s IESP falls on the District. “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). Therefore, the District is obligated to provide the Student with the educational and related services enumerated in the IESP. 20 U.S.C. §1401(9)(D); 34 CFR 300.17(d); 20 U.S.C. § 1414(d); 34 CFR 300.320. However, the Courts have reasoned that the District’s failure to implement these services would constitute a denial of FAPE only if the District failed to implement substantial or significant provisions of the IESP. Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Fisher v. Stafford Township Bd. of Educ., 289 Fed. App’x 520, 524 (3d Cir. 2008); V.M. v N. Colonie Cent. School Dist., 954 F Supp. 2d 102, 118-19 (N.D.N.Y. 2013). Hence, in reviewing a perceived failure to implement claims under the IDEA, Courts have held that it must be ascertained whether the aspects of the IESP that were not followed were substantial or “material”. A.P. v. Woodstock Bd. of Educ., 370 Fed. App’x 202, 205 (2d Cir. 2010); Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 (9th Cir. 2007) (holding that a material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled student and the services required by the student’s IEP); see also Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73, 75-76 (D.D.C. 2007) (holding that where a student missed a ‘handful’ of speech-language therapy sessions as a result of the therapist’s absence or due to the student’s fatigue, the student nevertheless received consistent speech-language therapy in accordance with his IEP, and the district’s failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student’s program).

1. DUTY TO LOCATE SETSS PROVIDERS

In the absence of a current [mutually-agreed-to] IESP, the District had a statutory obligation to provide SETSS to the Student in conformity with the 2022 IESP. Educ. Law § 3602-c(2)(a), (b)(1); 20 U.S.C. §1401(9)(D); 34 CFR 300.17(d); 20 U.S.C. §1414(d); 34 CFR 300.320. The Hearing Record establishes that the District failed to develop an IESP for the 2023/2024 school year, with which the Parent agreed; therefore, the District should have complied with the mandates for SETSS (10/wk.) as set forth in the 2022 IESP (“Mandated SETSS”). Here however, the District did not offer any testimonial or documentary evidence that it located or supplied the Student with a SETSS provider, prior to commencement of the 2023/2024 school year, or thereafter when it became apparent, upon the Parent’s filing of the Complaint, that the Agency located by the Parent would be billing for SETSS services at a rate higher than the District’s standard rate.

On the one hand, while it may be viewed as permissible for the District to include the Parent in the identification process of a particular provider, especially if the Parent is willing and able to do so; however, it does not follow that the responsibility to redress a Parent’s inability to locate a provider is shifted to the Parent. The District’s burden to locate a SETSS provider cannot be transferred to the Parent; more particularly, the District “cannot abdicate its affirmative duties under the IDEA.” Anchorage Sch. Dist. v. M.P., 689 F.3d 1047, 1055-56 (9 th Cir. 2012). Consequently, it is this Hearing Officer’s determination that the District’s failure to provide or locate a provider for the Mandated SETSS during the 2023/2024 school year, is deemed an implementation failure, which constituted a material and significant deviation from the 2022 IESP; amounted to a denial of the Student’s Equitable Services due under Educ. Law §3602-c, et. seq; as well as, a serious violation of the District’s responsibilities under the IDEA, which resulted in a procedural and substantive violation of the IDEA and resulted in a denial of the Student’s FAPE. A.P., 370 Fed. App’x 202, 205; Van Duyn, 502 F.3d 811, 822.

D. BURDEN OF PROOF

As a matter of general jurisprudence, the party with the burden of proof has the duty and obligation to prove or disprove a disputed fact; and under the IDEA, the burden of persuasion in an administrative hearing challenging an [IESP] is on the party seeking relief. Schaffer v. Weast, 546 U.S. 49, 59-62 (2005) (finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not). However, under New York State law, during an impartial hearing, the burden of proof has been placed on the school district, who bears the burden of proof, production and persuasion; except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law §4404(1)(c); see also, Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014); C.F.,746 F.3d 68, 76; R.E., 694 F.3d 167, 184-85. More particularly, to determine whether the Parent is entitled to reimbursement of expenses incurred for the unilateral placement of a disabled child in an IDEA challenge to an [IEP], this Hearing Officer is guided by the three-step Burlington/Carter test: (1) first the District must establish that the placement and services offered by the [IEP] were neither inadequate, inappropriate nor denied the Student a FAPE; however, if the District fails to meet that burden, then the Parents are entitled to tuition reimbursement if (2) they establish that the Student’s unilateral placement was appropriate; and (3) that equitable considerations support the Parents’ claim. See, Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985). The District is required under the due process procedures set forth by New York State law to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record. The District is tasked with establishing sufficient facts and introducing proper evidence to demonstrate that recommendations made based on the Student’s educational needs were appropriate. In order to meet its burden, the District must show (a) that it complied with the procedural requirements set forth in the IDEA; and (b) that the [IESP] developed for the Student is reasonably calculated to confer educational benefits thereon. Rowley, 458 U.S. 176, 206-07; M.S. v. Bd. of Educ., 231 F.3d 96, 102 (2d Cir. 2000), cert. denied, 532 U.S. 942 (2001).

Here however, the Hearing Record is wholly devoid of any legal or statutory authority, or testimonial or documentary evidence, which explains why the District (i) failed to provide or locate a SETSS provider for the Student; and/or (ii) failed to sufficiently negate or otherwise refute the facts established in the Hearing Record or relief sought by the Parent. Accordingly, as demonstrated by the findings of fact and conclusions stated herein, it is this Hearing Officer’s determination that the District failed to provide the Student with Equitable Services or a FAPE appertaining to the provision of Mandated SETSS during the 2023/2024 school year, as recommended by the 2022 IESP; consequently, the District failed to satisfy its burden of persuasion or disprove that it denied the Student a FAPE.

E. RELIEF – FUNDING for SETSS SERVICES

The Parent contends that the District should be directed to pay for the SETSS provided to the Student during the 2023/2024 school year. Specifically, the Parent seeks an award for the District’s retrospective payment to the Agency for a projected four-hundred-sixty (460) hours of SETSS services that were provided to the Student by the SETSS Provider, between the period of July 10, 2023 through and including June 20, 2024, at an hourly/session rate of onehundred-seventy-five ($175.00) dollars; the estimated total cost of which aggregates and shall not exceed eighty-thousand-five-hundred ($80,500.00) dollars.

The IDEA requires that special education services are to be provided “at no cost to parents,” 20 U.S.C. § 1401(29), and numerous provisions of the IDEA reflect Congress’ determination that the guarantee of a FAPE should extend to all children with disabilities, regardless of their financial means. 20 U.S.C. § 1437(b)(7). “The Act contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as [non-disabled] children [and] . . . provides for placement in private schools at public expense where this is not possible.” Burlington, 471 U.S. 359, 369. The child’s FAPE must “meet the standards of the State educational agency” and conform to the IEP required by 20 U.S.C. §1414(d); 20 U.S.C. §1401(9)(B); 20 U.S.C. §1401(9)(D). The IDEA provides Federal funding for the education of children with disabilities, conditioned on the States implementing laws that guarantee educational standards. 20 U.S.C. §1412(a). In uniformity therewith, all special education services, inclusive of SETSS, are provided free of charge to eligible children by the NYC-DOE. Thus, it is widely held that “to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the [District] should have supplied in the first place”. Reid, 401 F.3d 516, 524.

Under certain circumstances, Parents may be awarded relief in the form of reimbursement for the cost of private educational services and/or unilaterally-obtained related services, which are attained for a Student, by the Parents, in response to the District’s failure to provide services and/or offer services that are deemed inadequate or inappropriate; and the services selected by the Parents were appropriate, and equitable considerations support the Parent’s claim. Carter, 510 U.S. 7; Burlington, 471 U.S. 359; R.E., 694 F.3d 167, 184-185. “Parents who are dissatisfied with their child’s education can unilaterally change their child’s placement . . . and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IEP] dispute is resolved, if they satisfy the Burlington/Carter test.” Ventura de Paulino v. New York City Dep’t of Educ., 959 F.3d 519, 526 (2d Cir. 2020). The Supreme Court found that Congress intended retroactive reimbursement to parents by the District as an available remedy in a proper case under the IDEA. Burlington, 471 U.S. 359, 370-71; Gagliardo, 489 F.3d 105, 111; Cerra, 427 F.3d 186, 192. “Reimbursement merely requires [the District] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the Student a FAPE. Burlington, 471 U.S. 359, 370-71; 20 U.S.C. § 1412(a)(10)(C)(ii); 34 CFR 300.148.

The Hearing Record demonstrates that the District substantively and procedurally denied the Student a FAPE. Specifically, as to the denial of the Student’s FAPE, the District: (i) failed to provide educational services in the form of SETSS; and (iii) failed to locate a SETSS provider to address the Student’s educational needs. More particularly, the District failed to offer any proof that it provided the Student’s Equitable Services, in the form of a SETSS provider, as mandated by the IESP; and such failure was violative of the IDEA, Education Law §3602-c, and denied the Student a FAPE. In addition, the Parent neither had the obligation to locate a provider, nor the financial responsibility to fund the cost of the SETSS services provided to the Student, during the 2023/2024 school year. Consequently, where the District is statutorily obligated pursuant to the mandates of the 2022 IESP to provide SETSS services to the Student, this Hearing Officer finds that the District should also be equally responsible for the full and direct retrospective payment of the cost of the Mandated SETSS services, which the Student received from the Agency’s SETSS Provider during the 2023/2024 school year.

a. Appropriateness of Unilateral Placement with Agency for SETSS

Parents seeking reimbursement for private tuition or unilaterally-obtained related services “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” Gagliardo, 489 F.3d 105, 112; M.S., 231 F.3d 96, 104; Educ. Law § 4404(1)(c). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [District’s] placement is appropriate should be considered in determining the appropriateness of the Parent’s placement…’” Gagliardo, 489 F.3d 105, 112; Frank G., 459 F.3d 356, 364; quoting Rowley, 458 U.S. 176, 207. When determining whether the Parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d 356, 364; Gagliardo, 489 F.3d 105, 115; citing, Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003) (“evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA”). To qualify for reimbursement under the IDEA, the Parent need not show that the placement provides every special service necessary to maximize the Student’s potential. Frank G., 459 F.3d 356, 364-65. Traditionally, the Parent would need only to demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a Student with disabilities, supported by such services as are necessary to permit the Student to benefit from instruction. Gagliardo, 489 F.3d 105, 112.

The Second Circuit has noted that while evidence of the Student’s actual progress is “relevant to the court’s review, . . . such progress does not [in and of] itself demonstrate that a private placement was appropriate”. Gagliardo, 489 F.3d 105, 115; Berger, 348 F.3d 513, 522; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 (1st Cir.2002). It is generally understood that in a private school “it is more difficult to assess the significance of grades and regular advancement”. Frank G., 459 F.3d 356, 364. Therefore, evidence of academic progress is not dispositive in determining whether a Student’s unilateral placement is appropriate. Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 (S.D.N.Y. Feb. 4, 2013); M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App’x 76, 78 (2d Cir. Mar. 29, 2013). However, a finding of progress is, nevertheless, a relevant factor to be considered. Gagliardo, 489 F.3d 105, 115, citing Berger, 348 F.3d 513, 522; T.K., 810 F.3d 869, 878. Similarly, “if the child’s lack of progress under a particular IEP does not render the IEP inappropriate . . . the fact that the child may not have progressed under the parents’ chosen program should not automatically mean that the program was inappropriate at the time the placement decision was made.” C.B., 2005 WL 1388964, at *18; citing Antonaccio v. Bd. of Educ. of Arlington Cent. Sch. Dist., 281 F. Supp. 2d at 710, 724 (S.D.N.Y. 2003).

Here, however, appropriateness of the Student’s unilaterally obtained SETSS provided by the Agency should not be in contention, as they were the exact type and frequency of services that the District recommended for the Student in the 2022 IESP, which were based on his Diagnoses, cognitive and academic delays, speech-language deficits and inattentiveness that impacted his performance and caused him to struggle in school. More particularly, in February 2023, the SETSS Provider indicated that the Student demonstrated some regression in his math skills; had difficulty comprehending grade-level science and social studies concepts; and required consistent explanations, repetition and individualized assistance in academic related activities and concepts. Thereafter, in March 2023, the Speech-Language Pathologist reported that the Student’s speech and language skills in reading, writing and math were significantly lower than his peers; and despite significant progress, he continued to struggle with decoding unfamiliar words, reading non-phonetic words, requiring direct instruction and use of cognitive strategies. However, the Hearing Record also reflects that the Student exhibited some progress; specifically, the November 2023 SETSS Progress Report, indicated that the Student had made great progress in reading and moderate improvement in math; exhibits significant delays in understanding concepts; and the 2024 SETSS Progress Report indicated that the Student had made great progress in math; his decoding skills were consistent with grade-level; his receptive and expressive language skills, and ability to answer questions logically had improved. In addition, the Parent opined that because the Student was receiving continuous SETSS services, he was able to retain the old concepts while building on them; and although he continues to struggle and have challenges in the areas of language, science, social studies and spelling, he made good progress in math. Accordingly, for the reasons discussed supra, the Hearing Record contains sufficient evidence to support a finding that the Parent has met the burden to show that the Student’s unilateral placement with the Agency was appropriate; specifically, the Agency provided SETSS services to reasonably meet the Student’s educational needs, in conformity with the 2022 IESP mandates.

b. Balancing of the Equities

Equitable considerations are relevant to fashioning relief under the IDEA. Burlington, 471 U.S. 359, 374; R.E., 694 F.3d 167, 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000). Having found that the Student’s unilateral placement at the Agency was appropriate for the 2023/2024 school year, the last determinant for funding relates to whether the Parent’s claim is supported by equitable considerations.

The Hearing Record demonstrates that during the 2023/2024 school year, the Student received SETSS services from the Agency, which the District was unequivocally obligated to provide, in conformity with the 2022 IESP. In addition, the Agency Contract evinces that the Parent is financially indebted to pay the Agency for the SETSS services provided to the Student. L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 491 (S.D.N.Y. 2013) (in reviewing the appropriateness of a unilateral placement, courts prefer objective evidence over anecdotal evidence); L.Q. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 490 (S.D.N.Y. 2013). Based thereon, it is this Hearing Officer’s finding that the District failed to offer the Student a FAPE for the 2023/2024 school year; no ten-day-notice was required from the Parent; the Parent’s unilateral placement with the Agency was appropriate; and there is adequate proof that the Parent is legally obligated pay for the SETSS services. Consequently, it is this Hearing Officer’s determination that the Hearing Record supports the Parent’s entitlement to an award for the District’s direct payment to the Agency for the SETSS provided to the Student, during the 2023/2024 school year.

The Second Circuit Court of Appeals has held that a direct payment remedy is an appropriate form of relief in some circumstances, and that “[i]ndeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework.” E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014); see also, Mr. and Mrs. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011) (appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, have not done so due to a lack of financial resources). Unquestionably, cost should not be a permissible reason for the District to defer or deflect its obligation to implement the Student’s SETSS services. Educ. Law § 3602-c(2)(a); (7)(a)-(b) (providing that “[b]oards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend [NPS] located in such school districts, and that the cost for services is recoverable from the district of residence, either directly with the consent of the parent for a district of location to share information or through the Commissioner of Education and the State Comptroller”).

The Hearing Record has established that the District failed to implement the Student’s SETSS for the 2023/2024 school year; therefore, the remaining issue relates solely as to the total hours and rate the District should be obligated to pay the Agency for providing his SETSS. It is this Hearing Officer’s finding that the testimonial and documentary evidence presented by the Parent, inclusive of the Agency Contract, Accounting Affidavit, and Attendance/Accounting Statement, collectively support the aggregate four-hundred-sixty (460) hours of SETSS that were provided to the Student during the 2023/2024 school year. Furthermore, although the District examined the ‘overhead costs’ expended by the Agency, which were included in the hourly SETSS rate of one-hundred-seventy-five ($175.00) dollars, this Hearing Officer does not regard the expenses as either untoward or excessive. Consequently, it is the finding of this Hearing Officer that the Agency’s hourly rate of one-hundred-seventy-five ($175.00) dollars was fair, and the four-hundred-sixty (460) hours of SETSS of services provided to the Student is well-substantiated. Accordingly, it is the determination of this Hearing Officer that subsequent to its submission of invoices to the District, the Agency is entitled to receive full retrospective funding in an aggregate amount not to exceed eighty-thousand-five-hundred ($80,500.00) dollars for the SETSS provided to the Student during the 2023/2024 school year. In accordance therewith, it is the further determination of this Hearing Officer that the District shall remit payment to the Agency, for the full-cost of Mandated Services not to exceed four-hundred-sixty (460) hours, billable by the Agency at the hourly rate of one-hundred-seventy-five ($175.00) dollars, which aggregates to, and shall not exceed, a total cost of eighty-thousand-five-hundred ($80,500.00) dollars for the SETSS provided to the Student during the 2023/2024 school year.

F. RELIEF SOUGHT FOR ADDITIONAL CLAIMS

As stated supra, in electing not to present appropriate documentary or testimonial evidence sufficient to refute certain allegations raised in the Complaint, the District failed to satisfactorily meet its burden in demonstrating that a FAPE was offered to the Student during the 2023/2024 school year. In response, some might assert that the Parents should axiomatically prevail under Prong I based solely on the District’s absence of adequate evidence in the Hearing Record, which could only be viewed as a request for a default judgment against the District. However, an impartial hearing officer is not automatically required to order any and all relief requested by the Parent, as it has been held that an outright default judgment awarding compensatory education or any relief requested, without question, is a disfavored outcome even in those instances where the District’s conduct in denying the Student a FAPE and [thereafter] in failing to actively participate in the impartial hearing process is, viewed by some, as egregious. Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005); G.M. v. Dry Creek Joint Elementary Sch. Dist., 595 F. App’x 698, 699 (9th Cir. 2014); Jalloh v. Dist. of Columbia, 535 F. Supp. 2d 13, 19-20 (D.D.C. 2008); Sykes v. Dist. of Columbia, 518 F. Supp. 2d 261, 267 (D.D.C. 2007).

As such, notwithstanding whether the relief sought relates to an alleged denial of FAPE, tuition funding or a compensatory award, the IDEA requires each IHO to reach a determination founded on substantive grounds based on the contents of the hearing record. Accordingly, this Hearing Officer can neither render a declaratory nor default judgement on the basis of insufficient factual evidence in the Hearing Record. More particularly, an IHO is not vested with “the inherent power to make up remedies out of whole cloth”. S. Kingstown Sch. Comm. v. Joanna S., 2014 WL 197859, at *9 n.9 (D.R.I. Jan. 14, 2014), aff’d, 773 F.3d 344 (1st Cir. 2014). State regulations provide in relevant part that “[t]he decision of the [IHO] shall set forth the reasons and the factual basis for the determination. . . [and] shall reference the hearing record to support the findings of fact.” 8 NYCRR 200.5(j)(5)(v). Additionally noting that neither IHOs nor State Review Officers (“SROs”) have authority to enforce prior decisions rendered by administrative hearing officers, much less to enforce decisions of the courts. Educ. Law §§ 440([1)(a); (2); see e.g., A.R. v. New York City Dep’t of Educ., 407 F.3d 65, 76, 78 n.13 (2d Cir. 2005) (specifically, IHOs do not retain jurisdiction to enforce even their orders, and that a party who receives a favorable administrative determination may seek enforcement in court); A.T. v. New York State Educ. Dep’t, 1998 WL 765371, at *7, *9-*10 & n.16 (E.D.N.Y. Aug. 4, 1998). The scope of the Hearing must be strictly limited to the issues asserted within the four corners of the Complaint. 8 N.Y.C.R.R. § 200.5 (j)(l)(ii); 20 U.S.C. § 1415(F)(3)(b ); B.P., 841 F. Supp. 2d 605, 611; R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 Civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Further, the Courts have traditionally distinguished between systemic violations that should be addressed by the Federal Courts, as opposed to “technical questions of how to define and treat individual students’ learning disabilities, which are best addressed by administrators”. Levine v. Greece Cent. Sch. Dist., 2009 WL 261470, at *9 (W.D.N.Y. 2009), aff'd, 353 Fed. App’x 461 (2d Cir. Nov. 12, 2009); Dean v. Sch. Dist. of City of Niagara Falls, 615 F. Supp. 2d 63, 70 (W.D.N.Y. 2009).

Here, certain issues for adjudication were provided in advance of the Hearing; addressed by the witnesses during the Hearing; delineated in the Closing Brief(s); and now decided herein by this Hearing Officer. Remaining however, are certain bare allegations or claims presented in the Complaint and/or raised in the Closing Brief(s), which do not have adequate factual evidence in the Hearing Record that would fully satisfy the factual basis required to render a determination and/or otherwise support a finding that the Student was either denied a FAPE or his rights violated, as a result of the District’s alleged (in)actions during the 2023/2024 school year. Consequently, due to the absence of sufficient testimonial or documentary evidence supported by the Hearing Record in relation to the aforementioned issues/claims, further consideration by this Hearing Officer cannot be undertaken; and accordingly, the Parent’s request for relief of any remaining issues or claims, which have not been specifically addressed herein, must be Denied.

ORDER

WHEREFORE IT APPEARING that the Hearing Record adequately demonstrates the following: (i) District developed the 2022 IESP, which mandated that ten (10) hours of SETSS be provided to the Student; (ii) District failed to offer or locate a SETSS provider for the Student’s 2023/2024 school year; (iii) District failed to satisfy its statutory burden of persuasion refuting that it procedurally and/or substantively denied the Student a FAPE and/or denied the Student’s Equitable Services for the 2023/2024 school year; and (iv) equitable considerations favor an award directing retrospective payment for the Mandated SETSS rendered to the Student during the 2023/2024 school year by the Agency’s Provider.

IT IS HEREBY ORDERED that after full consideration of the Hearing Record, together with the applicable Federal and State Regulations, and the Conclusions of Law, this Hearing Officer has determined that the District failed to provide a FAPE to the Student during the 2023/2024 school year;

IT IS HEREBY FURTHER ORDERED that the District failed to provide Equitable Services to the Student during the 2023/2024 school year;

IT IS HEREBY FURTHER ORDERED that the Mandated SETSS unilaterally-obtained from the Agency by the Parent was appropriate for the Student under the IDEA, and equitable considerations favor the District’s funding of the full cost for the SETSS services provided to the Student during the 2023/2024 school year, in an amount aggregating and not to exceed eighty-thousand-five-hundred ($80,500.00) dollars;

IT IS HEREBY FURTHER ORDERED that within ten (10) business days of the presentment of the Invoices submitted by or on behalf of [Redacted], LLC (Agency), the District shall remit payment directly to the Agency for an aggregate amount not to exceed eighty-thousand-five-hundred ($80,500.00) dollars, in its entirety, which represents full retrospective funding for the four-hundred-sixty (460) hours of Mandated SETSS services, provided by the Agency to the Student, during the 2023/2024 school year, payable at the Agency’s enhanced rate of one-hundred-seventy-five ($175.00) dollars;

IT IS HEREBY FURTHER ORDERED that the Parent’s request for any additional claims asserted or relief sought in the Complaint, for which no supporting testimonial or documentary evidence was provided during the Hearing or otherwise supported by the Hearing Record, is hereby Denied;

IT IS HEREBY FURTHER ORDERED that the Parent’s request for any claims asserted or relief sought, which were raised subsequent to filing the Complaint and/or raised for the first during the Hearing or in the Closing Brief, is hereby Denied;

IT IS HEREBY FURTHER ORDERED that the Parent’s request for any relief sought or claims asserted, which were withdrawn prior, during or subsequent to the Hearing, is hereby Denied;

IT IS HEREBY FURTHER ORDERED that the Parent’s request for any relief sought that is not within the jurisdictional ambit or authority of this Hearing Officer, is not properly seated before me, and is hereby Denied;

IT IS HEREBY FURTHER ORDERED that any remaining issue, claim or contention not expressly addressed in this Decision, is hereby Denied.

IT IS SO ORDERED.

Dated: December 3, 2024

_/s/ Patricia L. Murrell___________,

Hearing Officer, Patricia L. Murrell

IHO.PatriciaMurrell@gmail.com

Copies to: All Parties

NOTICE OF RIGHT TO APPEAL

Within forty (40) days of the date of this Decision, the Parent and/or the 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 twenty-five (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 forty (40) days from the date of the decision sought to be reviewed. An appealing party shall file the (i) notice of intention to seek review, (ii) notice of request for review, (iii) request for review, and (iv) proof of service with the Office of State Review of the New York State Education Department within two (2) days after service of the request for review is complete. The Rules of Procedure for Proceedings 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.

PARENT EXHIBIT(S)

Ex.	Description	Date(s)	No. Page(s)
A.	Impartial Hearing Request	July 4, 2023	6
B.	Individualized Education Services Program	June 6, 2022	15
C.	Provider’s Certification	Various	4
D.	2023 SETSS Progress Report	November 1, 2023	4
E.	Services Affidavit of [Redacted]	January 6, 2024	1
F.	Notice of Intent for Continued Services	May 5, 2023	1
G.	Agency Contract for SETSS	July 1, 2023	1
H.	Prior Written Notice	June 27, 2023	4
I.	Résumé of [Redacted]	Undated	4
J.	Accounting Affidavit of [Redacted]	May 16, 2024	1
K.	2024 SETSS Progress Report	February 14, 2024	4
L.	Attendance/Accounting Statement - SETSS	Various	10
		Total Exhibit Page(s):	53

DISTRICT’S EXHIBIT(S)

Ex.	Description	Date(s)	No. Page(s)
1.	Audiological Evaluation	February 21, 2023	3
2.	SETSS Progress Report	February 24, 2023	4
3.	Speech/Language Progress Report	March 1, 2023	3
4.	Individualized Education Services Program	March 6, 2023	15
5.	Individualized Education Program	June 5, 2023	17
6.	Developmental Evaluation Letter	June 8, 2023	1
7.	Affidavit of [Redacted]	February 29, 2024	2
8.	Résumé of [Redacted]	Undated	1
		Total Exhibit Page(s):	47

HEARING OFFICER EXHIBIT(S)

Ex.	Description	Date(s)	No. Page(s)
IHO-1	Pendency Implementation Form	October 24, 2023	2
IHO-2	District’s Post-Hearing/Closing Brief	July 16, 2024	12
		Total Exhibit Page(s):	14

TRANSCRIPTS

Type of Conference/HearingDate(s)No. Page(s)

Prehearing ConferenceAugust 17, 202317

Status ConferenceSeptember 20, 202310

Second Status ConferenceOctober 19, 202310

Third Status ConferenceNovember 16, 20239

Fourth Status ConferenceDecember 21, 20239

Fifth Status ConferenceJanuary 23, 202414

Due Process Hearing – Day OneFebruary 13, 202420

Due Process Hearing – Day TwoMarch 7, 202418

Due Process Hearing – Day ThreeApril 17, 202489

Due Process Hearing – Day FourMay 9, 202441

Due Process Hearing – Day FiveMay 23, 20247

Due Process Hearing – Day SixJune 11, 202429

Total Transcript Pages273

Total Document Page(s):387

Footnotes

[1] The Hearing Record cited to in these Findings of Fact and Decision (hereinafter, the “Decision”) includes and references documents, which are designated as follows: to the Transcript, “Tr.” followed by the respective page/line number(s); to the Exhibits, as designated by the Parent’s Disclosure/Exhibit List, which are identified alphabetically: (A through L); District’s Disclosure/Exhibit List, which are identified numerically: (1 through 8); “IHO” for Impartial Hearing Officer Exhibits, (IHO-1 through IHO-2); and, as to any other document(s) included in the Hearing Record not specifically assigned an exhibit number, each of which will be identified by the respective document name and relevant page numbers, therein.

[2] See, IHO-4 – District’s Post-Hearing/Closing Brief.

[3] See, B-1; through, B-15. N.B.: Copies of 2022 Evaluation Reports were not proffered into the Hearing Record.

[4] See, 1-1; through, 1-3.

[5] See, 2-1; through, 2-4.

[6] See, 3-1; through, 3-3.

[7] See, 4-1; through, 4-15. N.B.: Copies of 2023 Paraprofessional Justification Letter, and/or 2023 Occupational Therapy Progress Report were not proffered into the Hearing Record.

[8] See, F-1.

[9] See, 5-1; through, 5-17.

[10] See, 6-1.

[11] See, H-1; through, H-4.

[12] See, G-1.

[13] See, IHO-1;-1; IHO-1-2.

[14] See, D-1; through, D-4.

[15] See, K-1; through, K-4.

[16] See, J-1; see also, L-1; through, L-10.

[17] See, Tr. 96:1-25; through and including, Tr. 99:1-8.

[18] See, Tr. 114:18-25; through and including, Tr. 126:1-5.

[19] See, Tr. 126:14-25; through and including, Tr. 132:1-17.

[20] See, Tr. 132:23-25; through and including, Tr. 134:1-19.

[21] See, Tr. 141:11-25; through and including, Tr.145:1-8.

[22] See, Tr. 147:12-25; Tr. 148:1-10.

[23] See, Tr. 174:2-25; through and including, Tr. 181:1-10.

[24] See, https://www.nysed.gov/sites/default/files/special-education/memo/chapter-378-laws-2007-guidance-on-nonpublic-placements-memo-september-2007.pdf.