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FINDINGS OF FACT AND DECISION
Case Number: 250153
Student’s Name: REDACTED
School District: REDACTED
Impartial Hearing Officer: Joshua Pal, Esq.
Date of Filing: 07/05/2023
Hearing Requested by: Parent
Date of Hearing: 09/21/2023
Record Close Date: 10/23/2023
Date of Decision: 10/23/2023
BACKGROUND
Parent,[1] through counsel, filed a Due Process Complaint (“DPC”) on or about July 5, 2023, which was later amended by Parent on July 24, 2023. (Ex. A). In the DPC, the Parent alleges that the Department of Education (“DOE” or “District”) failed to implement an individualized education service program (“IESP”) for the 2023-2024 school year. (Id.).
The only claim actually raised in the DPC is that Parent disagreed with the Committee on Special Education’s (“CSE”) decision to not mandate the Special Education Teacher Support Services (SETSS) on a twelve (12)-month basis. (Id.). By way of relief, Parent requests a finding that the District’s failure to implement the 1/12/2023 IESP constituted a denial of a free appropriate public education (“FAPE”) for the 2023-2024 school year.[2] (Id.). Parent also seeks an order that District fund Provider Agency for services rendered as well as fund a bank of hours for Occupational Therapy (“OT”) services to be provided during the 2023-2024 school year. (Id.). In light of the foregoing and as more fully discussed below, I find that Parent failed to make the required request for special education services by the June 1, 2023 deadline and is barred from relief in this claim. Further, I find that even if there was no June 1 issue, a) the DOE failed to meet its burden that it offered Student equitable services for the 2023-2024 school year, but b) Parent failed to meet their burden that Provider Agency offers Student specially designed instruction sufficient to meet Student’s needs, and c) the equities would not support the Parent’s entire requested relief even if Prongs I and II were met.
PROCEDURAL HISTORY
I was appointed on July 6, 2023. On August 24, 2023, the parties appeared for an eScribers pre-hearing conference. The District indicated that the matter was not resolved by the Parties and the matter was scheduled for a Due Process hearing, to be held on September 21, 2023.
On September 21, 2023, both parties appeared for a virtual hearing. The DOE did not seek to introduce witness testimony nor any other evidence. (See Transcript at p. 20-21). [3] Rather, the District argued that Parent failed to communicate their intention to seek services from the DOE by the statutory June 1 deadline and thus was precluded from any relief related to the 2023-2024 school year. (Tr. at 26). Parent offered seven exhibits (A-G) to be placed into the record, but later withdrew Exhibit B, as that document was not the operative IESP for the school year at issue. (Id. at 21-22). Exhibits A and C though G were entered into the record without objection by the DOE. (Id. at 24). Parent offered testimony via affidavit of two (2) witnesses (Ex. F, G): Parent and Director of Provider Agency, both of whom were cross-examined by the District. Parent rested, at which time the DOE’s counsel and Parent’s counsel each made an oral closing. Although not all exhibits are cited to in this decision, I have reviewed everything in evidence.
FINDINGS OF FACT AND DECISION
After a full review of the record generated at hearing, I make the following findings of fact and determinations.
Student is a REDACTED year old child classified as a Student with a Learning Disability. (Ex. D). On August 16, 2018, when Student was REDACTED years old, the CSE developed an IEP wherein they would receive 5 sessions of Special Education Itinerant Teacher (“SEIT”) Services per week in a group of 2, on a 12-month basis. (Ex. A). On December 8, 2021, the CSE developed a new program which mandated SETSS on a 10-month basis. (Ex. C).[4] Most recently, on January 12, 2023, after Student had turned REDACTED years old, the CSE developed an IESP which mandated 7 sessions per week of group SETSS as well as 2 30-minute sessions of OT on a 10-month basis. (Ex. D). Parent attended both the 2021 and 2023 CSE meetings. (Ex. C, D). [5]
On or about June 26, 2023, Parent, though counsel, sent a letter to the CSE. (Ex. C). In this letter, Parent expressed their concern with the December 8, 2021 IEP in that the SEIT services, on a 12-month basis, were removed.[6] (Id.). Parent was silent with respect to the January 12, 2023 IESP. The letter went on to inform the CSE of Parent’s intention to enroll Student at Private School and provide the services recommended in the 2018 IEP. (Id.).
In or around September 2023, Student began receiving SETSS on an individual basis from Provider Agency. (Ex. F, G, Tr. at 62).[7] Parent testified that they signed a contract with Provider Agency for the provision of SETSS.[8] (Tr. at 41). Director of Provider Agency testified via affidavit that the rate for their services is $195 per hour.[9] (Ex. G). Parent further testified that no provider had been located for the provision of OT. (Tr. at 48). Parent testified that they contacted “a few” occupational therapists over the summer but is “still trying to seek out” who they would like to work with Student. (Id.). Parent stated that the rate was not the issue but they “need to find the right people.” (Id.). In contrast, Director of Provider Agency testified that they spoke with Parent regarding OT and not only identified a provider, but signed a contract to begin services once Student was settled in school, sometime after the Jewish holidays. (Tr. at 71). Director of Provider Agency testified that the rate charged by the OT provider is $250 per hour and that 100% of that amount goes to the provider, as opposed to the rate charged for SETSS, from which a portion goes to the Provider Agency. (Ex. G, Tr. at 75). Parent now seeks direct funding for the SETSS that are to be provided to Student for the 2023-2024 school year as well as a bank of hours for the OT services that are eventually to be provided. (Ex. F).
Burden
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, 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 (NYS Educ. Law § 4404(1)(c)).
FAPE
The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (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 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/June 1 requirement
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 (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 CFR 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 (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)).
Here, at the outset of the DPH, District Representative raised the issue of the June 1 requirement. (Tr. at 26). Parent Representative argued that because this issue was not raised prior to the DPH, it is deemed waived by the District. (Tr. at 28). Parent’s position is inconsistent with recent SRO decisions. (See Application of a Student with a Disability, Appeal No. 23-140, Application of a Student with a Disability, Appeal No. 23-162). [T] he issue of the June 1st deadline fits with other affirmative defenses, such as the defense of the statute of limitations, which are required to be raised at the initial hearing (see 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"]. (Id.). As was the case in SRO 23-140, I find that “while it would have been preferable for the district to have raised the issue at the pre-hearing conference or status conference, the district did raise it at the initial hearing level and the parent had the opportunity to respond to the defense.” I find that the District did not waive the June 1 requirement either procedurally or substantively.
In their opening statement, Parent Representative argued that the defense was waived and stated that if Parent was aware of the June 1 issue, they “would have actually presented evidence that [they] did submit a June 1st letter, but [they] have been denied that opportunity because the District has failed to put [them] on notice that this was going to be an issue for this hearing.” (Tr. at 28). I find Parent Representative’s argument unavailing and do not credit any testimony that a request for services was sent to the CSE before June 1, 2023. First, there is nothing in the record to suggest that Parent was denied the opportunity to offer proof of their statutorily required request for services for the 2023-2024 school year into evidence. Second, Parent failed to request that this IHO allow them any time to procure the email which would serve as proof of their compliance with the June 1 deadline.[10] Third, Parent offered into evidence the Ten Day Notice they sent to the CSE on June 26, 2023, despite there being nothing in the record to suggest that the District ever raised the issue of Parent’s failure to provide such a notice before unilaterally obtaining services. (Ex. C). Finally, the content of the Ten Day Notice itself does not support Parent’s position that a request for special education services for the 2023-2024 school year was timely made. In their letter, Parent references the December 8, 2021 IEP meeting (nearly 2 years earlier) and expresses concern “that the IEP team removed the SEIT program.” (Id.). Parent stated that they were “writing to reject the most recent reduced recommendations.” (Id.). Had a request for services been made less than 4 weeks earlier, one would expect there to be a reference to said request in a subsequent communication regarding Student’s services. I find that the June 26, 2023 Ten Day Notice was the first and only communication to the CSE. Having found that the June 1 requirement under Educ. Law § 3602-c(2) was not satisfied, I find that Student is ineligible to receive special education services and am dismissing this matter with prejudice.
For completeness of the record, were the June 1 defense not applicable, I will discuss the merits of Parent’s claims. For reasons discussed below, were the case not dismissed due to the June 1 requirement and Student was in fact entitled to special education services for the 2023-2024 school year, I would find that Parent is not entitled to the relief being sought. As SROs have recently held, and as Parent’s Counsel implied via their opening statement and closing argument, cases such as this are subject to analysis under the Burlington/Carter standard, the prongs of which are discussed below.
Prong I
The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). 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).
As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at hearing. While the District Representative did not explicitly concede Prong I, they indicated on the record that they were presenting no witnesses or documents in support of their case. (Tr. at 20). Therefore, I am constrained to find that the DOE failed to offer Student equitable services for the 2023-2024 school year. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer equitable services for the 2023-2024 school year. [11]
Prong II
A private school placement must be "proper under the Act." Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985). This means that the private school must offer an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d at 112)" Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)
Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
Director of Provider Agency testified that in their role, they screen, hire, and contract with their special education teachers, related service providers, supervisors, consultants, and trainers. (Ex. G). They testified that they undertake a screening process for prospective students and assign an appropriate educator to them. (Id.). They testified that Student is currently receiving SETSS on a one-to-one (1:1) basis from Service Provider. (Id.). While the actual Service Provider did not offer testimony at the DPH, Director of Provider Agency testified that Service Provider prepares for sessions, creates goals, writes progress reports, and meets with teachers and parents. (Id.). Director of Provider Agency testified that Student is already showing signs of progress.[12] (Tr. at 76-77).
I find that Parent has not met their burden in proving that the private program offered an educational program which met Student’s needs under Prong II of the Burlington/Carter standard. The record before me is lacking with respect to evidence of Student’s educational needs. While Director of Provider Agency testified that goals were established, lessons were planned, and progress was tracked, there is nothing in the record to establish how the program met Student’s individual needs, such that Student could benefit from Service Provider’s services. There was no evidence presented as to what Provider Agency identified as Student’s needs or what was being done to address these needs. I found Director of Provider Agency’s testimony to be conclusory, rather than informative, in light of the evidence presented. I find it impossible to determine whether the services from Service Provider were appropriate and whether the program offered was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. I am unable to determine what Student’s needs were as determined by Provider Agency, what services were provided to Student or how they were reasonably calculated to meet those needs, when or how said services were provided, or how Student progressed under this program.
Further, Parent and Director of Provider Agency offered conflicting testimony regarding how Student receives the services in addition to whether they were even receiving them at all as of the date of the DPH. Parent testified that Student receives the services during the school day but is pulled out of the class. (Tr. at 49). Parent went on to testify that Student receives services at a time when she will not miss a class, such as during lunch.[13] (Tr. at 51). Director of Provider Agency testified that Student is usually pulled out of class but sometimes receives the services in the classroom, to make sure skills are being transferred. (Tr. at 67). Lastly, the most recent IESP mandated SETSS in group sessions, but Student was receiving individual service. (Ex. D, G, Tr. at 68). There is nothing in the record to support why individual SETSS is appropriate for Student.
Similar to my finding with respect to whether District met their burden on Prong I, in reviewing the record before me, I am constrained to find that Parent has not established that Student’s individual special education needs were addressed by Service Provider or that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." Id.
12-month/Summer Services
In their DPC, Parent requests that Student receive a 12-month program for the 2023-2024 school year. While the District bears the burden of explaining the decision-making process with respect to the services recommended, Parent still carries the burden with respect to the appropriateness of services unilaterally obtained for Student. The threshold question when considering whether an Extended School Year (“ESY”) of twelve (12) months is appropriate is whether such a program is necessary to prevent substantial regression. 8 N.Y.C.R.R. §200.6(k); 200.1(eee). "Substantial regression" is defined as "a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year." 8 NYCRR 200.1[aaa]. In order to constitute “substantial regression,” the student’s educational loss during the summer must be so severe that is requires an inordinate period of re-teaching at the beginning of the next school year (8 weeks or more) to recoup the previous level of skill or knowledge. See VESID, “Extended School Year Programs and Services Questions and Answers,” (2006) (available at http://www.vesid.nysed.gov/specialed/publications/policy/esy/qa2006.htm); "Questions and Answers Extended School Year 2017," Office of Special Educ. [Feb. 2017], available at http://www.p12.nysed.gov/specialed/applications/ESY/esy-2017/ documents/questions-and-answers-extended-school-year-2017.pdf; Application of a Student with a Disability, Appeal No. 05-114 (a review period of eight weeks or more would likely indicate that substantial regression has occurred).
Here, Parent has offered no evidence to establish Student’s need for ESY services. In fact, Parent Representative did not make a request for summer services in their opening or closing statements. Neither of the witnesses offered any testimony or other evidence regarding Student’s risk of substantial regression that might have justified such a request, had one been made. Additionally, Director of Provider Agency’s testimony was silent as to whether they contracted for or provided services to Student during the summer months of the 2023-2024 ESY. In their affidavit testimony, Parent requested a bank of 40 hours, corresponding to 40 weeks, which is less than would be included in an ESY. This further supports the position that summer months were not being requested for Student. As with the Prong II discussion above, there is insufficient evidence in the record to support a finding that services during the summer months of the 2023-2024 ESY are appropriate or warranted, and that portion of the DPC must be dismissed with prejudice for failure to prosecute. [14]
Occupational Therapy
As discussed above, Parent seeks a bank of 40 hours of OT, to be paid at a reasonable market rate, as a provider has not yet been retained to provide services for Student, per Parent. (Ex. F). There was conflicting testimony offered at the DPH with respect to OT services. Parent testified that they had not yet found “the right one” despite their efforts and that they were having a hard time finding a provider. (Id., Tr. at 48). To the contrary, Director of Provider Agency testified that not only had she spoken to Parent about OT services, but they had signed a contract for OT and would be starting in late October or early November. (Tr. at 72). They also testified that the provider was available but it was Parent’s decision to delay receipt of services. (Tr. at 71). Given the inconsistent and incredible testimony offered regarding the OT services, I would not order Parent’s requested relief. If there were no June 1 issue, and Student were entitled to the mandated services, I would order 36 hours at the DOE rate and would order the DOE to identify providers from which Parent could choose to receive services.
Equities
While I find that Parent failed to meet their burden as to the appropriateness of the unilateral placement, I will analyze the equities for completeness. Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009) In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
Parent sent their Ten Day Notice on June 26, 2023. (Ex. C). Assuming that Parent were seeking summer services, which was alleged in the DPC but was never mentioned in the Ten Day Notice, the letter would have been late. I take official notice that the ESY for the 2023-2024 school year started on July 5, 2023, so the letter was only sent 6 business days before the start of the school year. If summer services were being awarded, which they are not, a reduction in award would be warranted. Regarding the letter itself, it fails to provide proper notice to the CSE, even if it was not intended to seek summer services. The letter inexplicably takes issue with the December 2021 IESP, despite the fact that a January 2023 CSE meeting occurred, which Parent attended. The failure to put the District on notice of the operative IESP defeats the purpose of sending such a letter in the first place. Due to this failure, a reduction in award, were one to be ordered, would be appropriate.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) Parent’s claim for direct funding for the Student’s SETSS services by Provider Agency is DENIED for the 2023-2024 school year and this case is dismissed, with prejudice.
(2) Parent’s claim for a bank of hours for Occupational Therapy is DENIED for the 2023-2024 school year and this case is dismissed, with prejudice.
(3) Parent’s claim for Extended School Year/12-month services is DENIED for the 2023-2024 school year and this case is dismissed, with prejudice.
Dated: October 23, 2023
_____________________
Joshua Pal, Esq.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DISTRICT EVIDENCE
None
PARENT EVIDENCE
A. Amended Due Process Complaint — 7/24/2023 (4 pages)
C. Ten-Day Notice — 6/26/2023 (3 pages)
D. Individualized Education Services Program (IESP) — 1/12/2023 (11 pages)
E. Provider Credentials — various (1 page)
F. Affidavit of Parent — 9/20/2023 (3 pages)
G. Affidavit of REDACTED — 9/20/2023 (3 pages)
IHO EXHIBITS
None
APPENDIX
Redacted Information — Term Used In FOFD
REDACTED — Student
REDACTED — Parents/Guardians
REDACTED — Parent Attorney/Representative
REDACTED — District Attorney/Representative
REDACTED — Private School
REDACTED — Provider Agency
REDACTED — Director of Provider Agency
REDACTED — Service Provider
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. The pronoun “they” is used as needed.
[2] Though not explicitly raised as a claim in the DPC, the fact that this is being sought as part of Parent’s relief implies that the services at issue were not implemented. Further, the Parties’ conduct at the hearing supports the position that Parent adequately alleged (and District understood) that the implementation of services was at issue.
[3] References to the transcript from this point forward will be denoted as “Tr. at" followed by the applicable page number.
[4] This exhibit merely references the 2021 program. The record before me does not establish what was specifically mandated under this program. It is also unclear whether this was an IEP or IESP or what school Student attended at the time the program was developed. In this exhibit, Parent references the “IEP meeting” and “IEP Team.”
[5] Based on the limited record before me, it is unclear whether any other IESPs were developed aside from the 3 described in this paragraph.
[6] It is curious that Parent specifically raised their concern with the 2021 IESP in this 2023 letter, despite having attended the 2023 meeting with the CSE. The record offers no explanation for this reference in Parent’s Ten Day Notice.
[7] Neither Parent’s nor Director of Provider Agency’s affidavits reference a start date for the provision of SETSS services. In fact, on cross-examination, Parent testified that they were not sure if Student has received services yet because they were still looking for teachers. (Tr. at 43). Director of Provider Agency testified that Student was receiving services as of the date of the hearing, which was in September. (Tr. at 62). I find that services began during the first week of school in September. The record was silent as to any services provided over the summer months of the 2023-2024 school year.
[8] Said contract was not offered into evidence.
[9] Parent testified via affidavit that they are seeking to have Provider Agency paid at a reasonable market rate. Parent did not request an order requiring the DOE to pay Provider Agency the amount Parent is contractually obligated to pay.
[10] Parent testified that they sent an email to the CSE requesting services on May 30, 2023. (Tr. at 37). I do not find Parent’s testimony to be credible, for reasons to be discussed later in this decision.
[11] Again, these conclusions are being offered assuming that Student was entitled to receive Special Education services for the 2023-2024 school year.
[12] I did not find any testimony regarding progress made thus far into the 2023-2024 school year credible (3 weeks of school, as of the date of the DPH), as Director of Provider Agency testified that from what they were told by Parent, a lot of progress was evident, contradicting Parent’s testimony that they did not believe the services had started yet.
[13] In general, I found Parent’s testimony to be unreliable and will not afford it much weight. Parent’s answers often appeared evasive and lacked candor. For example, Parent repeatedly asked District Representative to repeat their questions but made no such requests to Parent’s Representative. Further, the answers were frequently not responsive to District Representative’s questions.
[14] In a communication between myself and counsel for both parties, Parent Representative explained that the summer months were not pursued at the DPH, as this was covered under pendency, though an order for summer services is still being requested (though not argued in closing). I find this position unpersuasive. Not only was no pendency agreement offered into evidence, a pendency agreement would not establish the need for said services in the future. Each party is still responsible for presenting their case at a DPH, which did not happen with respect to ESY.