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CASE NUMBER: 609680- NYC: 256793
FINDINGS OF FACT AND DECISION
| Case Number | 256793 |
|---|---|
| Student’s Name | REDACTED |
| Home District | REDACTED |
| Service District | REDACTED |
| Impartial Hearing Officer | Ginger James |
| Date of Filing | September 7, 2023 |
| Hearing Requested by | Parent |
| Date of Hearing | November 14, 2023 |
| Record Close Date | November 21, 2023 |
| Date of Decision | November 24, 2023 |
| Time Sensitive | No |
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 14, 2023
For the Student:
REDACTED, Parent’s Representative
For the New York City Department of Education:
REDACTED, District Representative
BACKGROUND AND POSITIONS OF THE PARTIES
Parent,[1] through counsel, filed a Due Process Complaint (“DPC”) on September 7, 2023 (Ex. A).
In the DPC, Parent alleges, among other things, that the Department of Education (“DOE” or “District”) failed to provide Student a free appropriate public education (“FAPE”) on an equitable basis for the 10-month, 2023-2024 school year. On May 31, 2018, the Committee on Pre-School Education (“CPSE”) drafted an Individualized Education Program (“IEP”) which recommended Special Education Itinerant Teacher (“SEIT”) services to be administered in REDACTED in a group of two, two hours per week (“the May 2018 IEP”) (Ex. A-2). On December 20, 2022, the Committee on Special Education (“CSE”) drafted an Individualized Education Services Program (“IESP”) which recommended individual Speech-Language Therapy (“SLT”) to be administered in REDACTED two times per week for 30 minutes (“the December 2022 IESP”) (Ex. A-2). Parent alleges that, for the 2023-2024 school year, the District, through the CSE, failed to recommend an appropriate placement for Student when it “removed the SEIT services and did not replace it with anything to address [Student’s] academic delays for the 2023-2024 school year” (Ex. A-2). Parent further asserts that because the District failed to provide a proper placement, Parent had to “implement the SEIT program independently for the 2023-24 school year and seek reimbursement or direct funding from the DOE” (Ex. A-3).
As relief, Parent seeks an Order finding that the DOE failed to provide Student special education services on an equitable basis for the 10-month, 2023-2024 school year and directing that the DOE fund: SEIT services, to be provided in REDACTED in a group of two for two hours per week (Ex. A; Ex. D-1, 8). Parent also requested pendency.
PROCEDURAL HISTORY
On September 13, 2023, I was appointed Impartial Hearing Officer (“IHO”) for this case.
Between September 27, 2023 and September 29, 2023, through a series of emails, a representative from the law firm representing Parent and I scheduled the following appearances: October 12, 2023 for a Settlement Conference; October 24, 2023 for a Status Conference; and November 9, 2023 and November 14, 2023 for a Due Process Hearing (“DPH”) (IHO Ex. I). No one from the District responded to those emails (IHO Ex. I).
On October 12, 2023, Parent’s Representative met with an OATH IHO for a Settlement Conference.[2] No one from the District appeared.
On October 24, 2023, Parent’s Representative appeared before me for a Status Conference. No one from the District appeared.
On October 24, 2023, I issued an Order which served to memorialize what transpired at the October 24, 2023 Status Conference and which included information regarding how the DPH would be conducted (IHO Ex. II).
On October 25, 2023, the District filed a Notice of Appearance (“NOA”) for District Representative (IHO Ex. III).
On November 14, 2023, Parent’s Representative and District Representative (“the Parties”) appeared before me for the DPH. At the outset, I conducted a Pendency Hearing (Tr. 5-10).[3] At the DPH, District Representative did not proffer any exhibits (Tr. 10). Parent’s Representative proffered Exhibits A through J, which included an affidavit by Associate Director of Educational Services at Provider Agency (“Associate Director”) (Ex. I) and an affidavit by Parent (Ex. J) (Tr. 10-12). District Representative had no objection to any of the exhibits, and I admitted all into evidence (Tr. 12). District Representative did not proffer any witness testimony (Tr. 10). The Parties agreed that the operative IEP for this matter was developed on May 31, 2018 (Ex. D), and that Student is entitled to two hours of special education services for the 2023-2024 school year (Tr. 12-13, 18). Parent’s Representative maintained that Student should receive SEIT services as recommended on the May 2018 IEP and not Special Education Teacher Support Services (“SETSS”) (Tr. 13-14). District Representative took no position on whether Student should receive SEIT services or SETSS (Tr. 14-15). The Parties agreed that the DOE did not implement the recommendations contained in the operative IEP (Tr. 13, 18). The Parties also discussed whether certain evaluations had been conducted and whether the CSE had reconvened to consider those evaluations (Tr. 15-17). Specifically, another IHO had ordered the District to conduct a bilingual psychological evaluation, a bilingual speech-language evaluation, a classroom observation and a social history (Tr. 15; Ex. B). According to DOE records, the bilingual psychological and speech-language evaluations had been conducted, the CSE had reconvened and developed a new IESP and Parent subsequently had requested a neuropsychological evaluation (Tr. 15-17). I agreed to order the CSE to conduct evaluations that had not been conducted and to reconvene (Tr. 17). Finally, the Parties agreed that the DOE will directly fund the services set forth in the operative IEP by funding a certified or licensed provider of Parent’s choosing at a “reasonable market rate” not to exceed the rate previously paid to the same provider by the DOE’s own Implementation Unit within the last six months upon presentation of a valid contract between Parent and provider and an affidavit attesting that the services billed for were provided (Tr. 18-19).
On November 24, 2023, I issued an Order on Pendency (IHO Ex. IV).
SETSS Instead of SEIT Services Is Appropriate
In their DPC, Parent’s Attorney asserts that “[Student] has been making progress utilizing the SEIT program and requires either a continuation of the broader SEIT program or an appropriate placement in a hybrid special education/general education program that should address their special education needs in a mainstream environment” (Ex. A-2-3). At the DPH, when asked about SEIT services versus SETSS, Parent’s Representative stated that they “would prefer SEIT because that’s what it says in the IEP,” and asked that I “include another evaluation so that the CSE can recommend SETSS” (Tr. 13-14). District Representative took no position on whether Student should receive SEIT services or SETSS (Tr. 14-15). I find that SETSS is appropriate.
First, SEIT services are generally reserved for preschool students with disabilities. See Educ. Law § 4410(1)(k); 8 NYCRR 200.16(i)(3)(ii).[4] The IEP at issue is over five years old at this time, and Student is over REDACTED years old and in REDACTED grade (Ex. F-1).
Second, despite Parent’s Attorney’s assertion that Student “has been making progress utilizing the SEIT program” (Ex. A-2-3), the record is not clear that Student is receiving SEIT services. Associate Director testified that Provider Agency is administering SEIT services (Ex. I-2). However, Parent contracted with Provider Agency for SETSS (Ex. E-3) and Parent testified that Student is receiving “Special Education services” (Ex. J-2). Additionally, the Progress Report Parent submitted states that Student “receives 2 hours of SETSS services” and that Student requires an increase in SETSS (Ex. F-1, 8).
Accordingly, I find that SETSS are appropriate for Student and not SEIT services.
Funding for a 10-Month School Year
I find that Student is entitled to funding of SETSS during a 10-month school year as recommended by the May 2018 IEP (Ex. D-1, 8) and as modified by this decision. I further find that a 10-month school year comprises 36 weeks, a reflection of the 180 instructional days divided by five days per week.[5]
Convening of the CSE
At the DPH, the Parties discussed whether certain evaluations had been conducted and whether the CSE had reconvened to consider those evaluations (Tr. 15-17).
I find that on May 30, 2023, Parent informed the District that Parent was placing Student in a private school at their own expense and requested that the CSE provide Student “with all special education and related services that they require for the 2023-2024 school year” (Ex. H). It is not clear on the record before me whether the December 2022 CSE meeting is the most recent CSE meeting (Ex. A-2). Further, on the record before me, it is not clear whether the CSE is still conducting evaluations, including Parent’s requested neuropsychological evaluation. Finally, I note that I cannot enforce another IHO’s Order (Ex. B). Instead, I am ordering that, unless they have done so already, the CSE convene to consider any evaluations that have not been considered to date and to develop a current IEP or IESP for Student.
OTHER CONTENTIONS
Parent seeks payment of attorneys’ fees and expenses associated with representation in this matter (Ex. A-3). The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party. Entitlement, if any, to costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008; Application of a Child with a Disability, Appeal No. 06-109. I would be exceeding the scope of my authority by determining that Parent is the prevailing party entitled to attorneys’ fees.
Other than the relief set out in my Order below, and my findings detailed in this section of “Other Contentions,” I find the Parties’ remaining contentions to be 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 of Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDERS
IT IS HEREBY ORDERED THAT the Department of Education (“DOE”) shall fund for the 10-month, 36-week 2023-2024 school year, group Special Education Teacher Support Services (“SETSS”), two hours per week to be administered in REDACTED by a licensed special education teacher of Parent’s choosing, at a “reasonable market rate” not to exceed the rate previously paid to the same provider by the DOE’s own Implementation Unit within the last six months; and it is further
ORDERED THAT the DOE shall pay the provider listed above within 35 days of receipt of upon presentation of a valid contract between Parent and provider and an affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT if Parent requests assistance finding a provider to administer the above services at any time, the DOE must locate three providers who are ready, willing, and able to begin administering the services to Student according to the terms of this Order. If Parent presents a good faith basis for rejecting the three providers, the DOE must locate two additional providers from which Parent may choose. The DOE shall not be required to identify more than five providers in any given six-month period. Nothing stated here prevents Parent from locating and utilizing a provider of their own choosing; and it is further
ORDERED that, if they have not done so already, the Committee on Special Education (“CSE”) shall convene within 35 days of completion of the last of any outstanding evaluations, or within 35 calendar days of this Order if there are no outstanding evaluations, to consider Student’s eligibility for special education and/or related services, and if eligible, to develop an IESP or IEP in accordance with the IDEA and State law; and it is further
ORDERED that until such time as the CSE convenes, the District must implement services as mandated by this Order.
November 24, 2023
(signed electronically)
_______________________________________________________________________________________
Ginger James
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- REDACTION IDENTIFICATION PAGE
| Redacted Information | Term Used In FOFD |
|---|---|
| REDACTED | Student |
| REDACTED | Parent |
| REDACTED | Parent’s Representative |
| REDACTED | Parent’s Attorney |
| REDACTED | District Representative |
| REDACTED | Home District |
| REDACTED | Service District |
| REDACTED | Provider Agency |
| REDACTED | Associate Director of Educational Services at Provider Agency |
APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
| Exhibit | Title of Document | Date | Number of Pages |
|---|---|---|---|
| A | Due Process Complaint (“DPC”) | 09/07/2023 | 7 |
| B | Findings of Fact and Decision (“FOFD”) | 02/02/2022 | 16 |
| C | Ten Day Notice (“TDN”) | 09/07/2023 | 3 |
| D | Individualized Education Program (“IEP”) | 05/31/2018 | 12 |
| E | Contract | 08/14/2023 | 5 |
| F | Progress Report | 05/11/2023 | 8 |
| G | Provider Credentials | undated | 1 |
| H | Notice of Residence- June 1 | 05/30/2023 | 2 |
| I | Affidavit of Provider | 11/06/2023 | 4 |
| J | Affidavit of Parent | 11/13/2023 | 2 |
DOE EXHIBITS
NONE
IHO EXHIBITS
| Exhibit | Title of Document | Date | Number of Pages |
|---|---|---|---|
| I | Emails Regarding Scheduling Appearances (Redacted) | 09/27/2023 and 09/29/2023 | 5 |
| II | Memorialization of Status Conference and Order Regarding Rescheduling of Appearances and Expectations for the Hearing (Redacted) | 10/24/2023 | 4 |
| III | District Notice of Appearance | 10/25/2023 | 1 |
| IV | Order on Pendency | 11/24/2023 | 2 |
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] Settlement conferences are conducted by an OATH Settlement Officer or OATH IHO not assigned to the case whose purpose is to aid the parties in exploring and facilitating a resolution to the DPC. Settlement Conference discussions are confidential, and the parties are directed to attend with knowledge of the dispute and settlement authority should there be an interest in resolution. Settlement conferences are not recorded.
[3] References to the transcript from the Due Process Hearing conducted on November 14, 2023 are denoted “Tr.”
[4] I further note that the IHO that authored the FOFD submitted by Parent as Exhibit B also recommended SETSS instead of SEIT services because SEIT is defined as a pre-school service and is not included in the continuum of services for school age children (Ex. B-7) (internal citations omitted).
[5] See https://www.schools.nyc.gov/about-us/news/2023-2024-school-year-calendar (last visited November 11, 2023). See also generally Application of a Child with a Disability, Appeal No. 23-033, FN 10.