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CASE NUMBER: 604166 - NYC: 251888
FINDINGS OF FACT AND DECISION
Case Number: 251888
Student’s Name:[1] REDACTED (“student”)
Date of Birth: REDACTED
School District: REDACTED
Hearing Requested by: REDACTED (“Parent”)
Request Date/Date Complaint Filed: 07/19/2023
Date(s) of Hearing: 1/16/2024, 2/12/2024, 3/27/2024, and 4/2/2024
Actual Record Closed Date: 4/22/2024
Date of Decision: 04/25/2024
Date of Distribution if Different than Decision Date: N/A
Hearing Officer: Leah Martin, Esq.
Time Sensitive: No
NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/16/2024
For the Student:
REDACTED (“Parent Advocate”)
REDACTED (“Agency Director”)
For the Department of Education:
REDACTED (“DOE Representative”)
NAMES AND TITLES OF PERSONS WHO APPEARED ON 02/12/2024
For the Student:
REDACTED (“Parent Advocate”)
REDACTED (“SETSS Provider”)
For the Department of Education:
REDACTED (“DOE Representative”)
NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/27/2024
For the Student:
REDACTED (“Parent Advocate”)
REDACTED (“Parent”)
For the Department of Education:
REDACTED (“DOE Representative”)
NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/02/2024
For the Student:
REDACTED (“Parent Advocate”)
For the Department of Education:
REDACTED (“DOE Representative”)
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on July 19, 2023. (Ex. A).[2] In the DPC, Parent alleges that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”) and equitable services under NYS Educ. Law §3602-c. (Ex. A). Parent has unilaterally obtained special education teacher support services (“SETSS”) from a private service agency (“Agency”) and is seeking direct funding for those services at an enhanced rate of $195 per hour for the 2023-24 school year and compensatory services for those owed in pendency. (Ex. A-2-3; Tr. 260).[3]
I was appointed on December 7, 2023 following recusal of the previous IHO. The previous IHO held a prehearing conference (“PHC”) on August 21, during which the DOE was given more time to investigate. (PHC Transcript). On September 18, a virtual status conference (“SC”) was held, at which Parent Advocate did not appear. (SC Transcript 9.18.23). On October 16 another SC was held, at which the parties were given more time to try to resolve the case. (SC Transcript 10.16.23). On October 25, another SC was held, at which the parties discussed that the DPC only alleges a failure to develop or implement an IESP, but an IEP meeting was held, and an IEP developed for the school year at issue. (SC Transcript 10.25.23). The transcript indicates that DOE Representative had contacted Parent Advocate regarding this discrepancy and had sent a copy of the May IEP and Parent Advocate had indicated her intention to speak to the Parent about it. (Id.). At the SC, a representative standing in for Parent Advocate indicated that Parent was actually challenging the school location that was offered because it could not implement the IEP, which was not raised in the DPC. (Id.). Pendency was also discussed at the October 25 SC, in which the parent’s representative indicated that they were requesting 12-month services based on the March 2018 preschool IEP and DOE Representative indicated that that IEP was not for 12-month services and could no longer be the student’s program because she was no longer a preschool student. (Id.).[4] The parent’s representative at that SC indicated that they would likely amend the DPC to fix the discrepancies discussed. (Id.). No amended complaint was ever submitted. On November 29, another SC was held at which DOE Representative reiterated that the allegations in the DPC did not correspond to the facts of the case and a hearing date was set for December 18. (SC Transcript 11.29.23).
Upon my appointment to the case, I emailed the parties to reschedule the hearing, certify issues, and explain evidentiary expectations for the hearing. (Rescheduling and Prehearing Orders Email). In that email, it was stated that the issues for hearing would be limited to those alleged in the DPC, which include only 1) a denial of a FAPE and equitable services for the 2023-24 school year based on the failure to develop an IEP for the summer months, the failure to develop an IESP for the 10-month school year, and the failure to implement SLT and SETSS services for the student; 2) the student’s entitlement to equitable services based on a timely written request by June 1st; 3) the appropriateness of any unilaterally obtained services; 4) the equities; and 5) pendency. (Id.). The email explicitly stated that any issues regarding the substantive appropriateness of any IEP or IESP developed, or the appropriateness of any proposed school location were not raised in the DPC and would not be considered at the hearing unless the complaint was amended. (Id.). The email also stated that the DOE’s burden to provide equitable services is only triggered by a timely request, so the Parent would be expected to provide evidence of such a request at the hearing. (Id.). Moreover, the email stated that the Parent’s Prong 2 burden regarding the appropriateness of any unilaterally obtained services is not met merely by showing that the services provided are similar to a previous IESP. (Id.). Finally, the email stated that the party seeking an extended school year has the burden of production on that issue. (Id.). Parent Advocate did not ask any questions about these rules or register any objections to them either by email or at the hearing. After receiving the Parent’s disclosures on December 15 (which did not include a request for equitable services), the undersigned reminded the parent’s representative that the hearing had been rescheduled to January and advised them to review my Rescheduling and Prehearing Orders Email, as it contained important information about the hearing issues and expectations. (Ext. Req. and Reminder Emails). DOE Representative requested and was granted an extension and adjournment due to a scheduling conflict, and the hearing was rescheduled to January 16. (Id.; Order of Extension4). Parent Representative did not respond to any of the scheduling or prehearing emails.
A virtual hearing was held on January 16, February 12, March 27, and April 2, 2024.[5] It was a closed hearing. The entire hearing was supposed to be concluded on January 16, but neither party had all their witnesses available, so a second hearing date was added to conclude the hearing. (Tr. 75-80, 142-151). An extension was jointly requested and granted for that purpose. (Tr. 144-145; Order of Extension5). At the start of the hearing, the issues and burdens were iterated and the undersigned asked Parent Advocate whether they had any evidence of a timely request for equitable services since none had been provided in their disclosures. (Tr. 87-88). Parent Advocate indicated only that it would be addressed through the Parent’s testimony. (Tr. 88). On the second hearing date the Parent was again unavailable, and a third hearing date had to be added to accommodate the Parent’s testimony. (Tr. 155-156). The third hearing date was then rescheduled due to a personal emergency of Parent Advocate. (DPH Rescheduling Emails). Parent appeared at the third hearing date (March 27),[6] but during cross examination the Parent hung up and did not rejoin the hearing. (Tr. 228-231). The Parent disconnected at a time when cross-examination was vigorous, and she seemed audibly flustered. Parent Advocate attempted to contact the Parent by phone and by email to get her to reconnect but received no response. (Tr. 230-233). Parent Advocate requested and was granted an extension to allow for the Parent’s testimony to be concluded. (Tr. 232; Order of Extension6). Parent Advocate was given until the end of the day to provide a suitable explanation for the Parent’s actions. (Tr. 233). DOE Representative did not get an opportunity to finish cross-examining the Parent and the undersigned did not have an opportunity to ask any questions. Parent did not respond to the Parent Advocate until more than two hours after disconnecting from the hearing, at which time her only explanation was that she was “at work with very choppy phone service.” (Ex. iii).[7] Based on that representation, Parent Advocate requested an additional hearing date so that the Parent could conclude her testimony (Ex. iii) and an additional hearing date was set. The morning of the final hearing date, Parent Advocate emailed to say that Parent “no longer plains [sic] to continue testifying in this matter. She feels that she has given any and all information that she is aware of during her prior testimony.” (Ex. iv). Parent Advocate was urged to try again to secure the Parent’s testimony or would risk consequences, including striking her entire testimony and/or an adverse inference against her. (Ex. iv). At the final hearing date, Parent did not appear to conclude her testimony. (Tr. 240). DOE Representative originally moved to strike the Parent’s testimony in its entirety. (Tr. 240-241). However, that motion was denied because the record is more complete with the testimony included. (Tr. 241-243). In the alternative, DOE Representative asked that the undersigned “take no consideration of the parent’s testimony.” (Tr. 242). Parent Advocate took no position. (Tr. 243). The testimony was allowed to remain in the record, with the finding that the Parent’s testimony was incredible, and with an adverse inference that, had the Parent returned to complete her testimony, it would not have supported her case. (Tr. 243). It was made clear that the Parent’s testimony would not be used to establish that a timely request for equitable services was made, to contradict the DOE’s Prong 1 burden, or to meet the Parent’s Prong 2 burden as to the appropriateness of the private services. (Tr. 243-245).
At the DPH, the DOE entered three exhibits (Ex. 1-3) into evidence and called no witnesses.[8] Parent entered into evidence six exhibits (Ex. A-F)[9] and presented testimony from three witnesses: the Agency Director,[10] SETSS Provider, and Parent, although the Parent’s testimony was incomplete. Four IHO Exhibits were added to complete the record. (Ex. i; ii; iii; iv). The parties made oral closing arguments on the record. (Tr. 249-261). The record was closed on April 22, after receipt and review of the hearing transcript. (Record Close Email).
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law §§ 3602-c and 4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.
BACKGROUND
During the 2023-24 school year, the student is in the fourth grade and classified as a student with a speech or language impairment. (Ex. 1-1-2). The student has been parentally placed in a mainstream classroom in a private school (“Private School”) for at least the last two school years. (Ex. 1-2; A-1).[11] For the 2023-24 school year, Parent wanted to consider a public placement so the committee on special education (“CSE”) convened a meeting on May 15, 2023 and developed an individualized education program (“IEP”) for the student, to be implemented on September 7, 2023.[12] (Ex. 1-1, 4). At the 5/15/23 IEP meeting, Parent expressed that she would consider the recommended program and placement and raise any concerns with staff at the proposed school location (after later receipt of a placement letter). (Ex. 1-4). The 5/15/23 IEP recommended placement in an integrated co-teaching classroom (bilingual in REDACTED for three subjects) and SLT (3x30x1 in REDACTED) for the 10-month school year. (Ex. 1-13-14). On July 7, 2023, the DOE sent Parent a prior written notice (“PWN”) of the recommended program and a school location letter (“SLL”), offering a public-school location to implement the 5/15/23 IEP (“Proposed Public School”). (Ex. 2; 3).[13] There is no evidence in the record that Parent ever notified the DOE of their rejection of the 5/15/23 IEP or Proposed Public School placement or requested equitable services for the 2023-24 school year. On September 2, 2023, Parent signed a contract with the Agency to provide 7 periods of direct, group SETSS per week in REDACTED at a rate of $195 per hour for the 2023-24 school year. (Ex. D-1-2). Parent now seeks direct funding for those services and compensatory hours for any pendency services that were not received.
ISSUES
As discussed in the Analysis section below, the only issues timely raised in the DPC were a denial of a FAPE and equitable services based on the failure to develop or implement either an IEP or an IESP for the school year at issue. (Ex. A). As discussed repeatedly prior to and during the hearing, the DPC does not allege any substantive deficiencies of the 5/15/23 IEP, nor does it allege the inappropriateness of the Proposed Public School. Parent Advocate was notified of these pleading deficiencies well in advance of the hearing and given multiple opportunities to amend yet failed to submit an amended complaint. At hearing, Parent Advocate argued for the first time that the IEP was inappropriate because it offered English Language Arts in English, despite the student’s need for REDACTED instruction,[14] and that the DOE did not prove that the Proposed School Location was appropriate because they did not affirmatively prove that the school had the requisite bilingual program.[15] (Tr. 95, 257-259). At no time did the Parent allege that the Proposed School Location was factually incapable of implementing the student’s IEP. At no time did Parent Advocate dispute the DOE’s assertion that the Parent failed to submit a request (timely or otherwise) for equitable services for the school year at issue. In her opening, Parent Advocate indicated that Parent would “explain her position concerning [the June 1st] letter” in her testimony (Tr. 95) but did not explain what that position would be and did not mention it in closing. Parent Advocate argued at the hearing that the private SETSS services are appropriate for the student (Tr. 259) but did not give specific reasons other than the student’s need for bilingual services. As to pendency, Parent Advocate argued at the hearing that the July 16, 2018 IEP was the last agreed upon program (Tr. 263-264). Parent Advocate argued that the private SETSS “are similar or the same services” to the SEIT services recommended in the 7/16/18 IEP (Tr. 264) but did not offer any legal support for her claim that the Parent can decide to substitute pendency services for other similar services.
The DPC claims that the Parent “will assert at this impartial hearing that: The [DOE] failed to develop an IEP/IESP for [the student] for the 2023-24 school year that is reasonably calculated to confer educational benefit …[that they] failed to evaluation [him] in all areas of suspected disability …[that that student] must be recommended to receive extended school year or 12-month services to maintain his developmental levels and prevent significant regression … [and that Parent] attempted to locate [DOE] providers to work with her child at the Standard DOE rate and was unable to locate any bilingual REDACTED licensed certified providers that would work for the current DOE stand rate.” (Ex. A-2). However, the DPC itself only predicts that the Parent would make those claims at the hearing, it did not affirmatively assert those facts. Moreover, Parent made none of those claims at the hearing.
At hearing, the DOE argued that the student was not entitled to equitable services because Parent had not submitted a written request for equitable services. (Tr. 88-89, 249, 253-256). In the alternative, the DOE argued that they had met their Prong 1 burden by proving that a timely IEP, PWN, and school location letter were issued in this case and that Parent had not alleged any deficiency in that program in the DPC. (Tr. 90-91, 249-253). As to Prong 2, DOE Representative argued that the services provided did not match what the Parent claims as the last agreed upon program because no SLT was being provided and the Agency is providing SETSS rather than the 2018 IEP’s special education itinerant teacher (“SEIT”) mandate, and the SETSS is provided individually rather than in the recommended group setting. (Tr. 91-92). Moreover, DOE Representative argued that the unilateral services appear to be based on a preschool IEP, which is outdated and cannot be appropriate for a ten-year-old student. (Tr. 92). DOE Representative argued that the equities favor the DOE. (Tr. 94). As to pendency, DOE Representative argued that Parent has not disagreed with the 5/15/23 IEP, so for the purposes of pendency it would be the last agreed upon placement. (Tr. 256-257).
FINDINGS OF FACT
Based on consideration of all the evidence at the hearing, I make the following findings of fact:[16] According to 2017 testing,[17] the student’s general cognitive ability is below average, and his abilities range from average in nonverbal areas to low in verbal domains. (Ex. 1-1). His daily living, socialization, and motor skills are adequate, but his communication skills are moderately low. (Ex. 1-1).
It is unclear from the record whether the 2017 evaluation was the student’s last formal testing.
The May 15, 2023 CSE meeting included a school psychologist (and district representative), a special education teacher, a general education teacher, and the Parent.[18] (Ex. 1-1-2, 20). The CSE attempted to have a Rabbi from the student’s private school participate, but he was unable to connect despite repeated attempts. (Ex. 1-2). The CSE attempted to get reports from the agency providing the student with SLT at the time of the meeting, but none were sent. (Ex. 1-4). According to the information available to the CSE,[19] the student’s language deficits affect his performance in a mainstream classroom, and he requires simplification and repetition of directions. (Ex. 1-2, 4). Sometimes the pace of instruction is too fast for the student to follow, at which time he spaces out. (Ex. 1-4). He requires prompts and reminders to follow directions, answer questions, and complete assignments. (Ex. 1-2-3). He often mimics his peers. (Ex. 1-3). The student was noted to have deficits with preplanning, following multi-step directions, multitasking, time-management, and transitions. (Ex. 1-5).
At the time of the 5/15/23 IEP, the student was struggling with phonics rules, soft ‘c’ and ‘g’ words, and multisyllabic words. (Ex. 1-2). With comprehension, the student could answer ‘wh’ questions, sequence pictures to tell a story, and sometimes state the main idea of a passage, but struggled to answer inferential questions, compare and contrast, or use details to support his conclusion about the main idea. (Ex. 1-2-3). Parent described his reading comprehension as an area of weakness. (Ex. 1-4). In writing, the student was struggling with grammar, capitalization, and punctuation and was not able to write a paragraph with three to four sentences. (Ex. 1-2). His writing skills were described to be “highly deficient in comparison to his classmates.” (Ex. 1-3). In math, the student had mastered money facts and had some proficiency with time, greater than or less than, determining odd or even numbers, and rounding. (Ex. 1-3). He could add and subtract two to three numbers but needed reminders to regroup and made errors with borrowing. (Ex. 1-3). He needed help with word problems. (Ex. 1-3-4). Parent described math as an area of strength. (Ex. 1-4). In the Private School general education setting, the student had made progress in answering ‘wh’ questions after being read a text, in writing, and in math. (Ex. 1-2-4). Socially, the student was noted to fight with his siblings but was able to participate in social activities with his peers. (Ex. 1-4-5).
The 5/15/23 IEP included management needs of manipulatives and teaching props, math and reading fluency drills, color coding and highlighting, graphic organizers, kinesthetic activities, a word wall for spelling and vocabulary, a visual schedule, sensory breaks, repetition and review of material, extra time for processing information and responding, encouragement and praise, preferential seating near a teacher and away from windows and doors, chunking, scaffolding, refocusing prompts, redirection, color-coded instructional materials, previewing material and pre-teaching concepts, modeling, instructions and directions broken down, repeated directions, multisensory instruction, visuals (such as outlines, checklists, and sentence starters), frequent teacher check-ins for comprehension, help with math word problems, functional grouping with peers of similar strengths and needs, and transition assistance (including encouraging the student to request teacher aid when necessary). (Ex. 1-5-6). SETSS Provider testified that he believes these management needs are appropriate for the student. (Tr. 187-188).[20] The IEP also contains testing accommodations. (Ex. 1-15). SETSS Provider did not recall having any concerns with the IEP’s goals (Tr. 188-189), and the Agency based their goals for the student on the IEP’s goals (Tr. 131, 185, 189).
The IEP notes that the student is not currently performing at grade level. (Ex. 1-6). It goes on to state that the student’s “continuous need for support, redirection, repetition, modeling and reviewing of concepts can be addressed through special education teacher and related services. It is anticipated that [he] will make progress in the general education curriculum with the support Special Education teacher in ICT classroom and Speech and Language Therapy.” (Ex. 1-6). The IEP states that related services or SETSS only were considered and rejected because the student “needs the support of a full time teacher” and that a 12:1:1 special class in a community school “was considered and rejected as being too restrictive at this time.” (Ex. 1-20; 2-2). There is no indication in the record that the student experiences regression over school breaks, or that Parent either requested extended school year services at the meeting or noted concern over the lack of a 12-month program.
The 7/6/18 IEP in evidence is a preschool IEP that does not address academic subjects such as reading, writing, or math. (Ex. B). The 7/6/18 IEP recommended special education itinerant teacher services in REDACTED in a group up to two four days a week for 1.5 hours per day and one day a week for one hour, to be provided in the regular early childhood program selected by the parent, as well as SLT in REDACTED (2x30x1) at the parent’s selected childcare location, all on a 12-month basis. (Ex. B-12-13). Agency Director testified that this was the last placement ever implemented for the student. (Tr. 128-129). There is no evidence in the record that the Parent has ever requested or that the student has ever had an IESP.
The Agency service contract in evidence states that Parent “confirms their understanding that [the student] is entitled to receive funding or reimbursement from the NYC DOE for the following recommended services: 1. SETSS, Direct Service, Group Service, REDACTED, 7 periods per week; 2. Speech-Language Therapy, Individual Service, REDACTED, 2x30 minutes per week.” (Ex. D-1). However, the record does not support the Parent’s assertion that SETSS have ever been recommended for the student, or that she had ever requested equitable services from the DOE such that the student would have been entitled to funding for those provided during the 2023-24 school year. The contract also provides that the Parent will “retain counsel and file a due process complaint in attempts to obtain funding for the recommended services mentioned-above for the 2023-24 school year.” (Ex. D-2). It does not appear from the record that Parent fulfilled that obligation, as she is represented by an advocate rather than legal counsel in these proceedings. Agency Director testified that the service contract does not cover SLT because they had no provider available at the time of the contract (Tr. 116-117). He testified that although SETSS and SLT are both listed as the services to which the student is entitled on page one of the contract, page two specifies the contracted services, which only includes SETSS at a rate of $195. (Tr. 118-119; Ex. D-2).
The Agency charges $195 per hour for individual SETSS, which includes provider hourly rates of $90-110, taxes, insurance, materials, rent, support staff, professional development, and other overhead costs as well as interest on loans. (Ex. E-2-3; Tr. 123-126). The Agency has been providing up to seven hours per week of SETSS to the student during the 2023-24 10-month school year. (Ex. E-4; Tr. 121, 123, 165). Agency Director’s affidavit states that “[a]lthough the student is mandated for group services, we were not able to locate a similarly situated group of students. As such, we are providing the services in a 1:1 setting.” (Ex. E-4). However, he testified on cross-examination that the Agency does not offer group SETSS (Tr. 109-110), so I do not credit the assertion that the Agency attempted to place the student in a group SETSS setting. Agency Director testified that he had reviewed the 5/15/23 IEP and knew that SETSS were no longer being recommended for the student. (Tr. 127). However, he testified that Parent had requested SETSS because she “believed that that’s the appropriate program.” (Tr. 110). He testified that SETSS and SEIT services are interchangeable and there is no difference between them, as they are both special education services. (Tr. 111-112). The student’s SETSS sessions are provided at the Private School. (Ex. E-4; Tr. 163-164). Agency Director testified that the Parent signs off on monthly invoices for services (Tr. 120), but there are no invoices in evidence.
The student’s individual provider (“SETSS Provider”) is bilingual (REDACTED) and certified to teach students with disabilities from birth to second grade. (Ex. E-4; F-1). He is also trained in teaching literacy and comprehension. (Ex. E-4). Although not mentioned in the Agency Director’s affidavit, he testified on cross-examination that the SETSS Provider is only certified to teach students from birth to grade two and the student is in the fourth grade. (Tr. 112-113). Agency Director stated that the student is not beyond a second-grade level of functioning.[21] (Tr. 113). SETSS Provider is supervised by a special education teacher with many years of experience. (Ex. E-4). The sessions are pull-out, and the student is generally pulled out of his ELA class. (Tr. 182). SETSS Provider testified that he provides “English instruction by using REDACTED,” which he described as saying it in REDACTED and then saying it in English. (Tr. 170-171). He testified that the student “somewhat” speaks English and the ELA instruction in the Private School is done in English. (Tr. 178). He testified that when he observes the student in English class, the student tends to understand what the teacher is teaching but that he sometimes appears lost and looks to his peers to see what is happening when the concepts are complex rather than concrete. (Tr. 176-178).
Agency Director testified that the SETSS Provider creates goals for the student and writes quarterly progress reports. (Ex. E-4-5; Tr. 130). He also stated that sessions notes for each session are kept in their online system. (Tr. 140). However, none of the progress reports[22] or session notes are in evidence, nor was there any testimony about how the goals were developed (other than reference to the IEP), or how the sessions are individualized to meet the student’s needs. There is conflicting evidence in the record regarding the goals worked on in the student’s SETSS sessions. Agency Director testified that SETSS Provider is working on the goals from the 5/15/23 IEP (Tr. 131; see also 185), which contradicted his affidavit testimony, which stated that the SETSS Provider created goals for the student (Ex. E-4). SETSS Provider testified that his goals for the student were to integrate him into the classroom, to focus on math regrouping and borrowing, multistep directions, reading fluency, and understanding classroom rules and instructions (Tr. 169), but those are more like areas of weakness rather than specific or measurable goals. He did not mention any specific goals from the 5/15/23 IEP. He testified that his goals are documented in the Agency electronic portal (Tr. 181), but they are not in evidence. SETSS Provider testified that they use the Wilson books for sight words and fluency (Tr. 169). He testified that he uses modeling for multistep directions. (Tr. 169). For math he uses manipulatives. (Tr. 169-170). He did not state whether these are methods he uses with all students or whether they are specifically adapted to this student.
Agency Director testified on redirect that the first quarterly progress report showed progress reading (blending) and math (borrowing/regrouping). (Tr. 132-133). SETSS Provider testified that the student is reading faster with fewer mistakes. (Tr. 170). There is no objective evidence of progress in the record.
Agency Director’s affidavit does not mention SLT, but he testified on cross-examination that the Agency has been providing SLT to the student since the end of December, 2023. (Tr. 109, 114-115). There is no information in the record as to the qualifications of the student’s SLT provider (other than bilingual REDACTED) or how the services are implemented, what they work on, how they are individualized, or the student’s progress therein.
Parent’s testimony has been deemed incredible and will not be considered to establish any fact in evidence. However, for the purposes of the record, I will recount it here. Parent first testified that she notified the DOE of her wishes concerning special education services for the 2023-24 school year. (Tr. 205). She testified that on May 19, 2023,[23] she received a link from the DOE[24] through email and she “clicked on that link and it asked [her] to fill out a couple of questions and then it was submitted.” (Tr. 205, 209). She testified that when she clicked on the link a google form appeared and said it would automatically generate a letter and sent it to the DOE. (Tr. 209-210). At that time, Parent was directed to look for the email with the link and forward it to Parent Advocate so that the hearing record could be clear. (Tr. 211). Parent then forwarded the email to Parent Advocate, who forwarded it to the DOE Representative and the undersigned. (Tr. 211-212, 217, 219). It is included in the record as IHO Ex. i. (Tr. 221-222). The email with the link contradicts the Parent’s testimony, as it was sent by the Agency and not the DOE. (Ex. i-1). Furthermore, the email indicates that if the parent clicks the link and completes the form, it will automatically generate a letter to send to the DOE team. (Ex. i-2). When the link is clicked and the form submitted, it generates a confirmation screen that states “Thank you! Your responses will generate a Letter of Intent emailed directly on your behalf to the DOE & copying the parent’s email. The letter will inform the DOE-district of your intention to continue to seek IEP services for the upcoming school year. Please reach out to your [Agency] Coordinator for any questions or concerns.” (Ex. ii-1).[25] Despite the confirmation indicating that the parent would be copied on the request letter, she could not find any copy in her email. (Tr. 224-225). Parent agreed that the confirmation screen only mentioned a continuation of IEP services rather than IESP services. (Tr. 225). Parent never reached out to the Agency regarding the fact that she did not receive a copy of the letter of intent and had no independent knowledge of any request letter being sent on her behalf. (Tr. 225-226).
Parent testified that the student had an IESP at that time that recommended SETSS and SLT (Tr. 205-206), but there is no evidence of that in the record. She testified that she asked the DOE to keep his SETSS and SLT services “as is,” meaning seven periods of SETSS and 2x30 of SLT. (Tr. 206, 227). There is no evidence of this request in the record. Parent testified that “the services are helping [the student] a lot.” (Tr. 208). Parent could not remember whether she had any specific disagreements with the 5/15/23 IEP. (Tr. 227).
Parent testified that she did not find it odd that she received the emailed link to request services only a few days after attending an IEP meeting in which she had stated that she would consider a public placement and forthcoming school location offer. (Tr. 216). She testified that she did call the Proposed Public School but could not remember when. (Tr. 217). She became defensive when asked to remember specific dates or names. (Tr. 217, 226). She testified that she did not find the school appropriate because the student speaks REDACTED, and the school did not speak REDACTED. (Tr. 217). She could not remember who she spoke with (Tr. 217) and did not specify whether the person she spoke to did not speak REDACTED or whether they had no bilingual/REDACTED classes or personnel at the school. She testified that she believes the Agency sent a Ten-Day Notice on her behalf, but she was not sure. (Tr. 218, 227). There is no evidence in the record of such a letter being sent. Parent testified that the Agency “worked on [her] behalf,” but she was not sure whether they represent her as legal counsel or advocate. (Tr. 228). During questioning about the capacity in which she is represented by the Agency, Parent hung up (Tr. 228) and ignored Parent Advocate’s attempts to contact her for the next two hours (Ex. iii). Parent then refused to return on the next hearing date to conclude her testimony. (Ex. iv).
LEGAL FRAMEWORK
IDEA
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 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). 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). The IEP must be likely to produce progress greater than mere “trivial advancement.” Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005). The IDEA requires school districts to provide appropriate education to students with disabilities, "not one that provides everything that might be thought desirable by loving parents." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998) quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). The IEP must be reviewed at least annually [34 C.F.R. §300.324(b)(1)(i)], and a district must have an IEP in place for each student identified with a disability within its jurisdiction at the beginning of each school year [8 NYCRR §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010)].
For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2). Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see alsoHouston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
Pendency
The IDEA and the New York State Education Law require that a student remain in the student’s then-current educational placement, unless the student’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation, or placement of the student.[26] Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships. Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; see,Wagner v. Bd. of Educ., 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996].
Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement. Mackey v. Bd. of Educ., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D., 694 F.2d at 906. Although not defined by statute, the phrase “then current placement” has been found to mean either:
(1) the placement described in the student’s most recently implemented Individualized Education Program (“IEP”);
(2) the operative placement actually functioning at the time when the due process proceeding was commenced; or
(3) the placement at the time of the previously implemented IEP.[27]
Courts have generally agreed that a student’s “then-current educational placement” refers to a student’s last-agreed-upon educational program (and services) before the parent requested the due process hearing. SeeDervishi, 653 Fed. Appx. at 57-58; Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71. Parentally placed students with IESPS also have a right to due process and pendency under NY law. Application of a Student with a Disability, Appeal Nos. 23-068; 23-065.
The Second Circuit has stated that educational placement means “the general type of educational program in which the child is placed”[28] and that “the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers.” [29] However, if there is an agreement between the parties on the student’s educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student’s then-current educational placement.[30] The regulations provide that an SRO decision that “agrees with the parents that a change of placement is appropriate . . . must be treated as such an agreement.”[31] Similarly, an agreement is implied by law where an unappealed FOFD from an IHO finds that a unilateral placement is appropriate.[32]
A parent cannot determine that the child's pendency placement would be better provided in a different school and invoke stay-put to force the district to pay for it. Scheff v. New York City Dep't of Educ., 123 LRP 19155 (S.D.N.Y. 06/27/23); Ventura de Paulino v. NYC Dep’t of Educ., 959 F.3d 519, 532-36 (2d Cir. 2020). The Ventura rule applies even if the district has not offered a pendency placement. See Araujo v. NYC Dep’t of Educ., 2020 WL 5701828 (S.D.N.Y. 9/24/20), Application of a Student with a Disability, Appeal Nos. 23-042; 20-199. “Pendency is not a divisible, a-la-carte program that may change at any given time as such a practice would undermine the "status quo" concept so prevalent in stay-put jurisprudence.” Application of the Dep’t of Educ., Appeal No. 23-023, citing Application of a Student with a Disability, Appeal No. 21-014, Application of the Dep't of Educ., Appeal No. 19-039; Application of a Student with a Disability, Appeal No. 18-139 cf. N.E. v. Seattle Sch. Dist., 2015 WL 12564236, at *4 [W.D. Wash. Oct. 27, 2015] [finding that a "multi-stage" IEP cannot be treated as divisible for purposes of pendency, explicitly rejecting the "divide-and-conquer" approach to determining the pendency placement] , aff'd sub nom., 842 F.3d 1093 [9th Cir. 2016]). In Application of the Dep’t of Educ., Appeal No. 23-023, the SRO determined that when parent moved the student from one private school (where the student had pendency) to another, she rejected the entirety of the pendency placement (including the provision of SEIT and related services that were provided by the former private school).
Where a district fails to implement a student's pendency placement, students should receive the pendency services to which they were entitled as a compensatory remedy. E. Lyme, 790 F.3d at 456 [directing full reimbursement for unimplemented pendency services awarded because less than complete reimbursement for missed pendency services "would undermine the stay-put provision by giving the agency an incentive to ignore the stay-put obligation"]; Student X, 2008 WL 4890440, at *25 (EDNY 2008); Application of a Student with a Disability, Appeal No. 23-028; 23-022.
Dual Enrollment
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).
A district has no obligation to develop or implement an IESP for a student absent a timely written request preceding each school year. See NYS Educ. Law §3602-c(2); Application of a Student with a Disability, Appeal Nos. 23-162; 23-114; 23-036; 23-032; 23-018; 21-138; 18-088; Application of the Dep’t of Educ., Appeal No. 23-101; Lee-Holowka v. Emma Willard Sch., 72 Misc. 3d 1214(A), *6 (S.Ct. Rensselaer Co. 2021). The June 1 deadline is applicable, even if the student has already been identified as a student with a disability and has previously received equitable services pursuant to an IESP. See Application of a Student with a Disability, Appeal Nos. 23-018 (parent’s position to the contrary would be contrary to the statute, which does not differentiate between students already identified and receiving IESP services and those who are not); 23-118 (“parent's argument about the district's obligation to annually review the student's IEP and to provide prior written notice conflates the district's obligations under the IDEA with the requirements of Education Law § 3602-c in an effort to excuse the parent's failure to comply with Education Law § 3602-c”); 23-032; 23-162. In Commissioner of Education Decision No. 15,195 (3/29/05), it states that Section 3602-c does not require the DOE to post notice of the June 1 deadline and the fact that parents were unaware of the deadline does not provide a legal basis for a waiver of the deadline; see alsoApplication of a Student with a Disability, Appeal Nos. 23-162 (stating that regardless of any provision in the DOE’s standard operating procedure manual (SOPM) obliging the district to send an IESP request form to parents by April 1, the DOE’s failure to send such a letter does not excuse the Parent’s compliance with the 6/1 deadline); 23-114 (“even if the district violated its policy as articulated by the parent, a violation of the district's policy or SOPM, standing alone, would not constitute a per se failure to offer the student a FAPE”).
Upon receipt of a timely written request, the district of location's committee on special education (“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]." NYS Educ. Law §3602-c(2)(b)(l). Special education services under an IESP must be provided on an equitable basis as compared to the services provided to other students with disabilities attending public schools and nonpublic schools. Section 3602-c also enables a parent to initiate an impartial hearing, pursuant to Educ. Law §4404, to challenge an IESP. State law requires the DOE to locate and assign publicly provided teachers for all dually enrolled students. Educ. Law §3602-c(2)(a); see also Office of Special Educ. Memos, Clarifying Information Related to Contracts for Instruction, July, 2009; Q and A related to Contracts for Instruction, June 2010 (both explaining that the DOE cannot contract for educational services with nonprofits or other agencies, except in rare circumstances not applicable here).
The June 1st deadline is a defense that must be raised at the lower administrative level. See, e.g., Application of a Student with a Disability, Appeal Nos. 23-162; 23-032; 23-018; 21-138; 18-088. If the district raises the defense of the June 1st deadline at the DPH, even if raised for the first-time during summation, they are not required to submit evidence to prove the lack of a timely request for equitable services. SeeApplication of a Student with a Disability, Appeal Nos. 23-162; 23-140; 23-118 (finding that the IHO did not improperly shift burden to parent regarding a June 1 request because “the parent was the individual in whose custody and control the purported notice would have rested” and parent did not attend the hearing and their attorney did not deny that no timely request for equitable services was submitted); 23-114 (“as long as the district raised the June first deadline as an affirmative defense at any time during the impartial hearing, the district did not waive its defense”). Unless the June 1 Letter was sent without parent’s knowledge or authority, the fact that it was sent by counsel on the parent’s behalf instead of by the parent directly does not invalidate an otherwise valid/timely request for equitable services. Application of the N.Y.C. Dep’t of Educ., Appeal No. 24-042.
When the DOE fails to implement equitable services to which the student is entitled, any reimbursement or direct payment for privately obtained services is analyzed under the Burlington/Carter framework - the DOE may be required to reimburse parents for their expenditures for private educational services if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 369-70 (1985); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012); T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d. Cir. 2009); Application of a Student with a Disability, Appeal No. 21-119. Parents who reject a school district's IEP and choose to unilaterally place their child at a private school without consent or referral by the local educational agency do so at their own financial risk. Burlington, 471 U.S. at 373-74; Carter, 510 U.S. at 14; Ventura de Paulino, 959 F.3d at 526; S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 356-58 (S.D.N.Y. 2009)(finding the parent in that matter had no financial standing to sue for direct retrospective payment to private placement where terms of enrollment contract absolved her of responsibility for paying tuition). “The propriety of retrospective direct payment as a remedy for denial of a FAPE depends on whether the plaintiff has standing to seek that relief.” Ferreira v. New York City Dep’t of Educ., 2023 WL 2499261, *26-27 (S.D.N.Y. March 14, 2023), citing S.W. v. N.Y.C. Dep't of Educ., 646 F. Supp. 2d 346, 355-56 (S.D.N.Y. 2009); Application of a Student with a Disability, Appeal Nos. 21-026 (finding that absent evidence of a contract for unilateral services, there was no harm to the parent that would warrant reimbursement or direct funding); 23-122 (denying funding for unilaterally obtained SETSS where the service contract did not contain essential terms and no invoices were in evidence).
In cases where the chief complaint is implementation of an IESP, an award of prospective funding would “award compensatory services for harms not yet realized by the parent, i.e. an anticipated failure of the district in implementing the student’s educational programming going forward.” Application of the NYC Dept’s of Educ., Appeal No. 23-275. Moreover, in such a case, prospective relief for failure to implement an outdated program “runs the risk of locking the student into an outdated, inappropriate program for the remainder of the [] school year.” (Id.).
Burdens
In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking tuition reimbursement for a unilateral parental placement has the burdens of persuasion and production on the appropriateness of such placement. NYS Educ. Law §4404(1)(c).
Relief
A board of education may be required to pay for educational services obtained unilaterally by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). These three conditions (“Prongs”) constitute the Burlington/Carter analysis.
A unilateral placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)(“[Parents] 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.”). Specially designed instruction is defined as “adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that result from the student’s disability.” 8 N.Y.C.R.R. §200.1(vv); 34 C.F.R. §300.39(b)(3). Educational progress can be a factor weighing in favor of the appropriateness of a unilateral placement. Frank G., 459 F.3d at 365. To qualify for reimbursement under the IDEA, parents need not show that the unilateral placement is perfect or that it meets all state educational standards. Id. at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).
Even where a private placement generally has services that might meet a student’s needs, if the school fails to tailor its program to the student’s unique needs and the student fails to make progress in the program, the program will not be considered an appropriate placement under Prong 2. Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 510-511 (S.D.N.Y 2010); Application of a Student with a Disability, Appeal No. 23-057 (noting that where the record contained general information about the school’s programming but not any details about specific instructional methods or modifications tailored to the student, or details about the student’s specific program or services, parent failed to meet their Prong 2 burden). In reviewing the appropriateness of a unilateral placement, courts prefer objective evidence over anecdotal evidence. L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 491 (S.D.N.Y. 2013); L.Q. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 490 (S.D.N.Y. 2013)(rejecting parents' argument that counseling services met student's social-emotional needs where "[t]here was no evidence . . . presented to establish [the counselor's] qualifications, the focus of her therapy, or the type of services provided" and, further, where "[the counselor] did not testify at the hearing and no records were introduced as to the nature of her services or how those services related to [the student's] unique needs"); R.S. v. Lakeland Cent. Sch. Dist., 2011 WL 1198458, at *5 (S.D.N.Y. 3/30/11)(rejecting the parents' argument that speech-language therapy services met student's needs where parents "did not offer any evidence as to the qualifications of the provider of the therapy, the focus of the therapy, or when and how much therapy was provided"), aff'd sub nom, 471 Fed. App'x 77 (2d Cir. 6/18/12); R.H. v. Bd. of Educ. Saugerties C. Sch. Dist., 2018 WL 2304740, at *7 (N.D.N.Y. 5/21/18), aff'd, 776 Fed. Appx. 719 (2d Cir. 2019)(finding insufficient evidence of a student's progress at a unilateral placement where the hearing record did not include objective evidence, such as report cards, progress notes, work samples, standardized assessments, or progress towards written goals); Application of a Student with a Disability, Appeal Nos. 23-085 (holding that despite the parent’s attempt to replicate a program similar to the student’s last-agreed upon summer IEP, parent failed to meet their Prong 2 burden where they failed to come forward with evidence that described the services and delivery thereof or how they met the student’s needs and the record did not show that the student made progress); 23-081 (upholding the IHO’s denial of reimbursement for related services, noting that there was no Ten-Day Notice, the hearing record lacked consistent information about the level of services received and did not explain how the services addressed the student’s needs); 23-066 (holding that where the hearing record was sparse as to what services the student received or how they addressed the student’s needs - there was testimony that individual goals were developed and reviewed quarterly and that services were specialized but none of the goals or assessment reports were in evidence – the IHO correctly found that Parent did not meet their burden to establish the appropriateness of unilateral equitable services); 23-162 (despite parent’s unilateral services conforming with the last IESP, parent failed to meet their Prong 2 burden at hearing where the hearing record contained no specific information about how the services provided were specially designed to meet the student’s needs, what needs the sessions addressed and whether the services were appropriate and although there was testimony that goals and progress reports were developed, they were not in evidence); 23-050 (upholding the IHO’s denial of reimbursement where “there was not enough evidence in the hearing record to support the parent's request for tuition reimbursement. Specifically, the IHO noted that ‘[w]ithout the benefit of any documentation from the nonpublic program or any witness testimony from the school concerning the relevant school years, I would be hard pressed to conclude that the family had sought to address, much less make, a demonstration of the propriety of the unilateral placement.’”); 23-100 (upholding the IHO’s denial of funding for 1:1 nursing services where the was “no evidence in the hearing record as to how or by whom the student’s 1:1 nursing services are provided, nor [was] there any evidence that the parent is legally obligated to pay for 1:1 nursing services for the student.”); 23-200 (upholding the IHO’s determination that parents had failed to meet their Prong 2 burden where the record lacked information from the school or person who provided instruction as to how his programming was determined, assessment results, progress reports, information about how they addressed the student’s deficits or modified instruction, “or other information that described the nature of the specially designed instruction the student may have received.”).
Under Burlington/Carter, if the parents are financially obligated to pay for the contracted services and have met their prong two burden, the contract must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced. SeeCarter, 510 U.S. at 16 (“Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”); J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”).
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 (2009). In making that equitable determination, a hearing officer may consider many factors, including whether a parent’s unilateral withdrawal of the 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 themself of need-based scholarships or other financial aid from the private school, 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. 34 C.F.R. §300.148(d); E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014). Unreasonable conduct by the Parent is another basis for a reduced award on equitable grounds. 34 C.F.R. §300.148(d)(3); 20 U.S.C. §1412(a)(10)(C)(iii); see alsoC.L. vs. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014)(noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"); W.M. v. Lakeland Cent. Sch. Dist., 783 F. Supp. 2d 497, 506 (S.D.N.Y. 2011)(parents delayed student’s evaluation); Neske v. New York City Dep’t of Educ., 123 LRP 37531 (2d Cir. 12/26/23)(parents were uncooperative in the placement process); Maysonet v. New York City Dept. of Educ., 2023 WL 2537851 (S.D.N.Y. 3/16/23)(reduction due to parents’ unreasonable actions in not participating in the IEP and failure to produce progress reports after promising to produce them); Application of a Student with a Disability, Appeal Nos. 23-046 (parents rejected DOE offer of a service provider); 23-312 (reduction attributed to parent’s lack of candor at the hearing and failure to comply with IHO orders).
Hearing Issues
Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing. See Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-056. A party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees [20 U.S.C. §1415(f)(3)(B); 34 C.F.R. §§300.508(d)(3)(i), 300.511(d); 8 N.Y.C.R.R. §§200.5(i)(7)(i)(a); (j)(1)(ii)] or the original due process complaint is amended prior to the impartial hearing [20 U.S.C. §1415(c)(2)(E)(i)(II); 34 C.F.R. §300.507(d)(3)(ii); 8 N.Y.C.R.R. §200.5(i)(7)(b)]. “The parent must state all of the alleged deficiencies in the IEP in their initial due process complaint in order for the resolution period to function. To permit [the parents] to add a new claim after the resolution period has expired would allow them to sandbag the school district." R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 187-88 n.4 (2d Cir. 2012); B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 58-59 (2d Cir. 2014).
When a matter arises that did not appear in a due process complaint notice, the next inquiry focuses on whether the district, through the questioning of its witnesses, "open[ed] the door" to the issue. M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 250-51 (2d Cir. 2012); see also Bd. of Educ. of Mamaroneck Union Free Sch. Dist. v. A.D., 739 Fed. App'x 79, 80 (2d Cir. 2018)(Plaintiffs opened the door to counseling issue through their opening and elicited testimony); B.M., 569 Fed. App'x at 59 (DOE did not open the door to certification issue where only mention of teacher certification was during foundational questions, not in support of substantive arguments); J.G. v. Brewster Cent. Sch. Dist., 2018 WL 749010, at *10 (S.D.N.Y. 2/7/18)(DOE did not open the door regarding a denial of a FAPE for previous school years where evidence regarding that year was only offered and discussed as background information in support of the current year’s IEP decisions); A.M. v. New York City Dep't of Educ., 964 F. Supp. 2d 270, 282-84 (S.D.N.Y. 2013)(DOE did not open the door to issue where there was only “passing mention” of it during testimony and “there is no indication that the DOE sought, let alone obtained, a strategic advantage by raising it.”); J.C.S. v. Blind Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, *9 (S.D.N.Y. 8/5/13)(DOE did not open the door to issue where it was mentioned only in terms of background and foundational testimony). In Scott v. New York City Dep't of Educ., the Court found that parents’ “broad allegation in the due process complaint that that the IEP was ‘not based upon adequate evaluations’ is not sufficient to raise the subsidiary issue of the CSE’s failure to consider [a specific evaluation].” 6 F. Supp. 3d 424, 438-9 (S.D.N.Y. 2014). Furthermore, the Scott Court found that the DOE had not opened the door to the subsidiary issue where the DOE “only briefly addressed the issue.” Id. at 439. Similarly, in Application of a Student with a Disability, Appeal No. 23-024, the State review officer (“SRO”) stated that the DPC’s allegation that the DOE failed to offer a FAPE for the relevant school year without any specific allegations regarding the operative IEP did “not put the district on notice of what issues the parent had regarding the [IEP].”
ANALYSIS AND CONCLUSIONS OF LAW
Hearing Issues
Here, the only issues appropriately raised in the DPC are a denial of a FAPE and equitable services based on the failure to develop or implement either an IEP or an IESP for the school year at issue. The DPC does not allege any substantive deficiencies in the 5/15/23 IEP, nor does it allege the inappropriateness of the Proposed School Location. Parent Advocate was warned about this deficiency many times in the conferences leading up to the hearing, and in the prehearing orders and made no attempt to amend the complaint. Despite that failure, which I find unreasonable under the circumstances, DOE Representative did open the door to those issues at the hearing through the questioning of witnesses and in their arguments. Despite the DOE’s opening the door to these issues, there is no evidence in the record to even legitimately raise any alleged deficiency in the 5/15/23 IEP or to assert that the Proposed Public School was factually incapable of implementing the IEP, such that would trigger the DOE’s obligation to prove otherwise.
First, as mentioned previously, the DPC does not raise those issues. Parent did not testify as to any disagreement she had with the 5/15/23 IEP and the arguments of her advocate are not evidence. Furthermore, although Parent made a conclusory statement that they did not speak REDACTED at the Proposed Public School, she did not give specifics as to the basis of that claim, did not say that they had no bilingual ICT classes, and could not remember who she spoke to from the school or when. Moreover, for all the reasons discussed previously, the Parent’s testimony is incredible. Even if I had not deemed the Parent incredible due to her actions in leaving the hearing and refusing to return, and even without the adverse inference, I would not find her testimony credible. Parent was adamant about remembering the date she filled out the request for services but was incorrect about that date. Then she became increasingly more defensive and combative when asked to recall specific details. Her testimony regarding submitting a request for equitable services was proved to be entirely false when explored on cross-examination and provided with the underlying email. Not only was she wrong about the date, but she was wrong about the email coming from the DOE. Furthermore, given that the confirmation page only stated that a letter would be sent seeking a continuation of IEP services, rather than equitable services, and that it stated that she would be copied on the request letter and she received no such copy, it was not reasonable for Parent to believe that a letter requesting equitable services for the 2023-24 school year was sent on her behalf. Parent’s claims that the student had an IESP in place at the time she submitted the request, or that he was previously recommended for SETSS services both also appear to be false. Accordingly, although I find no facts even alleged which would be sufficient to challenge the 5/15/23 IEP or the Proposed Public School, there are certainly no credible facts in evidence to do so.
Even if the Parent Advocate’s argument regarding the inappropriateness of the IEP due to the recommendation for ELA in English were established by any facts in evidence, I would reject that argument. I find it appropriate that, even for bilingual students, English language arts be taught in English. Moreover, the student’s Private School program does the same, so it is disingenuous for the Parent to claim that this would be inappropriate.
As mentioned previously, the DPC claims that the Parent would assert at the hearing that the student requires 12-month services and that the Parent was unable to find service providers willing to work at the DOE’s standard rate. Neither of these issues are asserted as fact in the DPC, rather they preview what they anticipate that the Parent would establish at the hearing. However, neither of these allegations were mentioned at the hearing, let alone established through a credible witness. Accordingly, the only issues properly raised by the DPC, and hearing evidence was the failure to develop an IEP or IESP.
Prong 1
As to Prong I of the Burlington/Carter standard, the DOE met its burden at the hearing. The DPC alleged that no IEP or IESP was developed, and the DOE proved otherwise. A timely IEP was developed, and a timely placement offer made to implement the IEP. Parent indicated their desire to consider a public placement at the IEP meeting and never notified the district that they were rejecting the IEP or Proposed Public School placement. Parent has not alleged any substantive deficiency in the IEP. There was no timely request for equitable services. So, the DOE had no obligation to develop or implement an IESP. Although the Parent may have wanted the student’s preschool services to continue, the DOE is not obligated to provide everything thought desirable by loving parents, and the Parent did not follow the proper procedure to notify the district of their private placement or their desire for equitable services. For these reasons, I find that the DOE met its Prong 1 burden here.
Prong 2
For the purposes of appeal, even if the DOE had not met its Prong 1 burden, I would find that Parent has not met their Prong 2 burden and thus would not be entitled to funding. First, as to the SLT, there is no evidence of a financial obligation (either through a contract, testimony, or invoices) in the record, nor has the Parent requested funding for those services. Furthermore, there is no evidence in the record regarding the service provider’s qualifications or any information about the provision of services or how they meet the student’s needs.
As to the private SETSS, the record does not establish that SETSS Provider is appropriately qualified, that the services are specially designed or tailored to meet the student’s needs, and there is no objective evidence of progress in the record. The services do not even match what Parent claims was the last agreed upon program, because that program recommended SEIT services in a group rather than individual SETSS. I did not find the Agency witnesses to be reliable for the reasons noted in the facts section above. I believe that Agency Director was deliberately misleading when he testified in his affidavit that they were unable to find a group to place the student with for group SETSS and that the SETSS Provider is certified to provide the services. They do not even offer group services, and the SETSS Provider is not certified to teach students in fourth grade. The testimony regarding the student’s functional levels was so uncertain and general that I do not find the claims about the student’s functional levels to be credible. I am not convinced that the Agency ever assessed the student with any reliable measures. There is no corroborating evidence of any kind in the record, such as assessment results, written goals, session notes, progress reports, invoices, or report cards. Based on the evidence before me and considering the totality of the circumstances here, I do not find that Parent has met their burden of showing that the unilaterally obtained services were appropriate for the student for the 2023-24 school year.
Prong 3
For the purposes of appeal, even if I had found differently on Prongs 1 and 2, I would still find that no relief was appropriate based on equitable considerations here. The equities overwhelmingly favor the DOE. Parent did participate in the CSE meeting, but they never notified the district of their rejection of the public placement or their desire for equitable services. They never provided Ten-Day Notice of their intention to seek funding for private services. I do not find it credible that Parent even considered the public placement here, since she clicked the link that she thought would request equitable services only days after the IEP meeting and before even receiving the school location letter. I am not convinced that she even attempted to contact the Proposed Public School to inquire about the placement there. The hearing had to be delayed multiple times to accommodate the Parent. Finally, and most importantly, the Parent’s conduct at the hearing was entirely unreasonable. While it is true that a parent is not required to give testimony, this Parent chose to do so but then only wanted to do it on her terms. When the questions got hard, she hung up and refused to return, without allowing the DOE Representative a full and fair opportunity to question her and without allowing the undersigned to ask clarifying questions. As such, I find that the Parent’s actions in abandoning the hearing similarly abandoned any right she had to the requested relief.
Pendency
I agree with DOE Representative that the student’s pendency placement is the 5/15/23 IEP because Parent has not challenged that program. Thus, by default, it is the last agreed upon program. Even if that were not the case, it would be inappropriate for the preschool IEP to be the pendency placement for this fourth-grade student as it is too old to be appropriate and did not even address any academic subjects or concerns. Regardless, I do not find that the student is entitled to funding for pendency services here because Parent has rejected the IEP and chosen to parentally place the student in private school. Furthermore, they have clearly tailored their private related services based on their belief about what services are most appropriate (SETSS vs. SEIT and individual vs. group) rather than the mandate in the pendency IEP (or any previous mandate). A parent cannot simply decide what services they wish the student to receive and then invoke pendency to force the district to pay for it. Ventura de Paulino v. NYC Dep’t of Educ., 959 F.3d 519, 532-36 (2d Cir. 2020). Furthermore, Parent cannot reject the placement portion of the last agreed upon IEP but then invoke pendency in the related services only because “[p]endency is not a divisible, a-la-carte program.” Application of the Dep’t of Educ., Appeal No. 23-023, citing Application of a Student with a Disability, Appeal Nos. 21-014, 18-139, Application of the Dep't of Educ., Appeal No. 19-039; N.E. v. Seattle Sch. Dist., 2015 WL 12564236, at *4 (W.D. Wash. Oct. 27, 2015)(finding that a "multi-stage" IEP cannot be treated as divisible for purposes of pendency, explicitly rejecting the "divide-and-conquer" approach to determining the pendency placement), aff'd sub nom., 842 F.3d 1093 (9th Cir. 2016). Accordingly, in rejecting the public placement the Parent has rejected the entire pendency placement and compensatory services are not warranted here.
I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDER
Based upon the above Findings of Fact and Conclusions of Law:
- IT IS HEREBY ORDERED that all claims raised by Parent are dismissed with prejudice.
SO ORDERED.
DATED: April 25, 2024 Leah Martin, Esq. (Signed Electronically)_ 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.
APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD
DOE’S EXHIBITS
Exhibit | Document | Date | Pages |
1. | IEP | 5/15/23 | 20 |
2. | PWN | 7/7/23 | 3 |
3. | SLL | 7/7/23 | 2 |
PARENT EXHIBITS
Exhibit | Document | Date | Pages |
A | Impartial Hearing Request | 7/19/23 | 5 |
B | IEP | 7/6/18 | 15 |
C | Release Form | 7/11/23 | 1 |
D | Service Contract with Agency | 9/2/23 | 2 |
E | Agency Director Affidavit | 12/11/23 | 6 |
F | SETSS Provider Certificate | Undated | 1 |
IHO’S EXHIBITS
Exhibit | Document | Date | Pages |
i. | ‘Letter of Intent’ Email | 5/18/23 | 2 |
ii. | ‘Letter of Intent’ Confirmation Screen | Undated | 1 |
iii. | Parent Disconnect Emails | 3/27/24 | 2 |
iv. | Parent Refusal Emails | 4/2/23 | 2 |
Footnotes
[1] Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Exhibits shall be referred to as follows: Ex. followed by lettered designations for Parent Exhibits, numbered designations for DOE Exhibits, and lower-case roman numeral designations for IHO Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parent Exhibit A, page 1, will be referred to as (Ex. A-1).
[3] The DPC also requested speech and language service (“SLT”) at an enhanced rate and extended school year services (Ex. A-2), but Parent Advocate did not make those requests at the hearing, so they will not be considered herein.
[4] Through the discussion at the SC, it appears that the 3/7/18 IEP, which the DPC claims is the basis of pendency, was amended on July 6, 2018 to include summer services. (SC Transcript 10.25.23).
[5] Any references to the DPH Transcript will be cited as “Tr.” followed by the page number in the transcript.
[6] Parent joined the hearing by phone but also had computer access for viewing the exhibits.
[7] Given the circumstances under which she disconnected from the hearing, the fact that it took her over two hours to respond to Parent Advocate, and her ultimate refusal to reappear to complete her testimony, I find that the Parent was untruthful in her claim that she got disconnected from the hearing due to spotty phone service.
[8] The DOE timely disclosed a witness list with four witnesses. (See DPH DOE Evidence). After adding a second hearing date to accommodate both parties’ witnesses, DOE Representative decided not to call any witnesses. (Tr. 155).
[9] Exhibit G was a duplicate of the DOE Exhibit 1 and was not entered. (See Parent Disclosures; Tr. 84-85). Exhibit B was entered only for the limited purpose of pendency. (Tr. 104-105).
[10] He has a master’s in general and special education and completed a post-master’s program in applied behavioral analysis (“ABA”). (Ex. E-1). He oversees intake and provision of services at the Agency. (Ex. E-2).
[11] His class there has approximately 20 students, one teacher and one assistant, and is teaching general education on grade level. (Tr. 192-193). One or two of the other students in the class receive special education services. (Tr. 196).
[12] There is no indication in the record that the Parent requested or that the student qualifies for summer services. The record contains no evidence that the student experiences regression or that Parent has concerns about regression.
[13] Parent did not object to the admission of these documents at hearing or deny receipt, thus the Parent’s receipt of the letters is admitted as fact.
[14] This allegation is not contained in any hearing evidence or the DPC. Accordingly, there are no factual allegations raised regarding this issue. The arguments of counsel are not evidence. Although the DOE Representative did potentially open the door to this issue through questioning of witnesses, since the Parent has not plead any facts, either in the DPC or through hearing evidence, to suggest the 5/15/23 IEP was substantively inappropriate, it is not properly in dispute. The only testimony that even approached this topic was the Agency Director’s testimony that if a student’s IEP recommends bilingual services, it is important that they be provided bilingually. (Tr. 136). He clarified that a student with SETSS needs a SETSS provider who speaks his dominant language. (Tr. 137). He was not speaking directly about this student, he did not testify similarly about services that are not recommended to be bilingual, and he did not offer an opinion as to whether it would be appropriate to teach English language arts in a language other than English.
[15] The DOE likely opened the door to this issue as well through questioning of the Parent, but, again, the Parent (even if credible) did not aver that the Proposed Public School was factually incapable of implementing the IEP. Thus, this issue is not properly in dispute and the DOE had no burden to affirmatively prove otherwise.
[16] Facts from the previous sections above are incorporated here as well.
[17] None of the student’s evaluations are in evidence.
[18] The IEP notes that “[t]he parent actively participated in the IEP meeting and was part of all discussions regarding recommendations, management needs, goals, promotional criteria, classification of disability and other considerations such as testing accommodations, wherever applicable. The team encouraged the parent to express thoughts and opinions in regard to the team’s recommendations, and as to whether or not they feel new assessments in any area should be conducted, based on concerns they may have based on school performance or significant lack of progress. The team also informed parent that if they wish, they are free to request a new assessment in any area, in writing, for the CSE’s consideration.” (Ex. 1-4).
[19] This included 2017 test results, a previous IEP from February 2023, and a teacher report from May 11, 2023. (Ex. 1-1; 2-1). None of those documents are in evidence.
[20] The record does not establish that SETSS Provider utilizes the majority of these management needs.
[21] He stated that this was based on teacher reports, records review, and their own assessments (Tr. 113), none of which are in evidence except for the most recent IEP. SETSS Provider testified that the student’s reading is “probably” “about” a second-grade-level, with comprehension “probably around 1st grade.” (Tr. 165-166). He did not do any formal assessments that objectively establish the student’s level, but he did testify that he “gave him material from other grades, and it seemed that he was most - - he knew the answers mostly when it came to that level.” (Tr. 173, 175). SETSS Provider estimated that the student was at a mid-to-end-of-second-grade level in math, based on informal testing. (Tr. 174-175). Those levels were informally assessed as of September, 2023. (Tr. 175). He testified that his supervisor did formal testing around the same time, but he did not know what assessments were used and did not recall any of the results. (Tr. 179). There is no indication in the record of the student’s current levels.
[22] The Agency Director’s affidavit states that “[t]he progress report entered into evidence is an accurate representation of what [SETSS Provider] has been working on with [the student], including goals, over the course of the 2023-24 school year.” (Ex. E-5). However, there is no progress report in evidence, and Agency Director acknowledged as much on cross examination (Tr. 131). This suggests that Agency Director’s affidavit was created off a template, rather than written specifically for this student. Parent Advocate requested permission to submit additional documentary evidence at the end of the Agency Director’s testimony (Tr. 147-150), but never submitted any.
[23] Parent testified that she remembered the exact date when she got the email but did not remember the date of the IEP meeting (Tr. 215).
[24] Parent could not remember who specifically it came from but testified that the email stated that it came from the DOE. (Tr. 209).
[25] This confirmation was generated by DOE Representative clicking the link and submitting the form during the hearing (Tr. 220), but Parent testified that she believes it was the same confirmation screen she saw when she submitted the student’s form (Tr. 224).
[26] 20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4], 4410[7][c]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see, Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. Jan. 18, 2005]; Application of a Student with a Disability, Appeal No. 14-024; Application of the Dep't of Educ., Appeal No. 08-061).
[27] Dervishi v. Stamford Bd. of Educ., 653 Fed. Appx 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014][holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; seeDoe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987].
[28] Concerned Parents, 629 F.2d at 753, 756.
[29] T.M., 752 F.3d at 171.
[30] Bd. of Educ. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; seealsoLetter to Hampden, 49 IDELR 197 [OSEP 2007].
[31] See 34 C.F.R. § 300.514(a) and (c); Mackey v. Bd. of Educ., 386 F.3d 158, 163 (2d Cir. 2004)
[32] See Bd. of Educ. v. Schutz, 290 F.3d 476,103 LRP 37743 (2d Cir. 2002); Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 52 IDELR 1 (9th Cir. 2009); St. Tammany Parish Sch. Bd. v. State of Louisiana, 142 F.3d 776, 28 IDELR 194 (5th Cir. 1998); Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 24 IDELR 839 (3d Cir. 1996).