Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 258562

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 10/20/2023

11/10/2023

Hearing Officer: Daniel Ajello Esq.

Actual Record Close Date: 11/22/2023

Decision Date: 11/22/2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/20/2023

(All present by video or telephone)

For the Student:

[REDACTED], Attorney

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON 11/10/2023

(All present by video or telephone)

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

[REDACTED], [REDACTED]

[REDACTED], [REDACTED]

For the Department of Education:

[REDACTED], District Representative

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Ex. Date Description Page(s) Entered 10/20/2023 A 9/7/2023 Due Process Complaint (DPC) 3 Entered 11/10/2023 B 3/19/2020 Individualized Education Program (IEP) 16 C 7/9/2018 Committee on Pre-School Special Education (CPSE) (IEP) 20 D 8/23/2023 Ten-Day Notice (TDN) Letter 2 E Various SEIT Provider Credentials 2 F Undated Speech Provider Credentials 1 G Various SEIT Supervisor Credentials 1 H 5/31/2023 [REDACTED] Contract 2 I 2023-2024 Summary of Services 1 J 11/2/2023 Service Affidavit 1 K Undated 1040 Tax Form 2 L 11/3/2023 [REDACTED] Testimony Affidavit 2 M 11/2/2023 [REDACTED] Testimony Affidavit 1 N 11/6/2023 [REDACTED] Testimony Affidavit 3 O 6/19/2023 Special Education Progress Report 7 P 6/11/2023 Speech-Language Progress Report 3

DEPARTMENT OF EDUCATION (DOE)

NONE

IMPARTIAL HEARING OFFICER

Entered 10/20/2023 I Notice of Appointment, 09/19/2023, 4 pages

II Notice of Appearance, 09/27/2023, 1 page

INTRODUCTION

On 09/19/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Appended to the record are lists of persons in attendance and the documents received in evidence.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

This matter was instituted by the impartial hearing request, of 09/07/2023. (Ex A)

Parent alleges:

- Student is known and identified as a student with a disability by the New York City Department of Education; - An IEP was developed, for the Student, on 03/19/2020, which has since expired; - An IEP meeting was not held for the 23-24 school year; - Student has been receiving 8 hours of bilingual [REDACTED] Special Education Itinerant Teacher (SEIT) support and has been making progress with this support indicating his need to continue with it; - It is clear to everyone working with him that he continues to require a program that can provide him with this level of intensive 1:1 support; - Likewise, with this support he has been able to handle mainstreaming opportunities which have proven very beneficial for him; - Based on the failure of the Committee on Special Education (CSE) to recommend an appropriate or timely IEP and school placement for Student, the Parents had no choice but to seek due process in order to ensure that his special education needs are met; - The parents wrote to the CSE but received no response; - The child requires a program that provides for bilingual [REDACTED] SEIT support with mainstreaming opportunities where appropriate, as well as related services of speech/language therapy and occupational therapy; - The [REDACTED] Support Services program ([REDACTED]) appropriately addresses this child’s needs. (Ex A 1)

Parent seeks, as relief, DOE funding of enhanced rate services, as indicated in the last IEP, of 07/09/2018 including:

o 8 hours of SEIT services, [REDACTED]; o Speech/Language Therapy - [REDACTED] (3x30, 1:1); o Occupational Therapy (2x30, 1:1); o Bilingual [REDACTED] program. (Ex A 2) At Hearing, of 10/20/2023, the Parent Attorney notes: there was an IEP meeting, in 2021, however, the 2018 IEP is the last agreed upon IEP (T 4); since 2018 the DOE has resolved issues related to the Student, except for the current school year (T 5); and ultimately, no IEP meeting was held, for the 23-24 school year. (T 5) Hearing continued, and concluded, on 11/10/2023.

POSITION OF THE PARTIES

Hearing commenced, and concluded, on 10/20/2023, to allow the DOE an opportunity to defend against the allegations contained in the DPC. (Ex A) The DOE did not appear.

The DOE failed to evidence any action taken to offer the Student a FAPE, for the 22-23 school year.

The DOE failed to evidence any effort to implement or otherwise facilitate appropriate Student services, for the 22-23 school year.

The DOE position included that equities do not favor the Parent since sufficient notice was not provided to the DOE regarding the Student’s unilateral placement. (T 20)

The DOE also contends that the service provider has not developed any education plan to meet the Student’s unique needs; and that the service provider is not currently certified, for the Student’s grade. (T 37 & 39)

I note that the DOE attempt to essentially shift the burden to the Parent to develop an education plan is not convincing. The Parent does have a burden, but it is not to replace the DOE when the DOE fails to offer the Student a FAPE or otherwise engage a Student who has previously been identified as requiring special education.

Parent Attorney notes that the DOE has not evidenced any offer of a FAPE; and that the Student is evidenced to be making progress under the implemented services. (T 39)

Parent Attorney notes that the SEIT provider is certified to work with student like the Student at issue. (T 39-40, Ex E)

Parent Attorney recounted the Parent’s position (T 17-20), and presented evidence, in support of its case, via Oral Testimony and Documentary Evidence. (Ex A through O)

The Evidence, and Testimony presented at Hearing are found to be credible, and supportive of the Parent’s case, as considered below:

[REDACTED], [REDACTED]

[REDACTED] Agency SEIT supervisor provided Testimony via Affidavit (Ex N), and at Hearing, which included:

- Student is in the[REDACTED] grade; - SEIT provider is REDACTED (T 24); - Student receives services in school, in the morning hours (T 26); - Student is in a general education class (T 27); and - SEIT provider has materials which supplement those provided in the classroom. (T 27)

[REDACTED], [REDACTED]

[REDACTED] Agency Care Operations Manager provided Testimony via Affidavit (Ex L), and at Hearing, which included:

- Her function is to match the Student with a provider (T 31); - This includes making sure the provider is properly credentialed (T 32); and - $[REDACTED] is the standard rate charged for SEIT services. (T 32-33)

A Request for Impartial Hearing Due Process Complaint (DPC) 09/07/2023

Details allegations of a denial of FAPE, for the 23-24 school year, and sets out sought after relief.

B 3/19/2020 Individualized Education Program (IEP)

Confirms Student entitlement to special education services, with a classification of Speech or Language Impairment. (Ex B 1)

Recommended services include:

o Integrated Co-Teaching Services (ICT) o Occupational Therapy (OT), Individual, [REDACTED], 2x30 minutes per week; o Speech-Language Therapy (SLT), Group Service, [REDACTED], 1x30 minutes per week; and o SLT, Individual Service, [REDACTED], 2x30 minutes per week. (Ex B 10)

C 7/9/2018 Committee on Pre-School Special Education (CPSE) (IEP)

Confirms Student entitlement to special education services, with a classification of Preschool Student with a Disability. (Ex C 1)

Recommended services include:

• Special Education Itinerant Teacher Services (SEIT), 8 hours weekly • Occupational Therapy (OT), Individual, [REDACTED], 3x30 minutes per week; • Speech-Language Therapy (SLT), Group Service, [REDACTED], 2x30 minutes per week; and • Bilingual [REDACTED] Program. (Ex C 1 & 17)

D 8/23/2023 Ten-Day Notice (TDN) Letter

Parent provides notice, to the District, of concerns related to implementing the lack of an IEP, for the 23-24 school year; belief the Student requires continuation of special education services; and intent to seek Due Process to continue Student services.

E Various SEIT Provider Credentials

Student SEIT provider is certified in Students with Disabilities, through grade 2.

F Undated Speech Provider Credentials

Licensure presented for SLT provider.

G Various SEIT Supervisor Credentials

Licensure presented for SEIT supervisor.

H 5/31/2023 [REDACTED] Contract

Enrollment Contract, with provider agency, for the 23-24 school year, includes that Parent is financially responsible for payment of delivered services. (Ex H 1)

I 2023-2024 Summary of Services

Agency intends to provide 8 weekly hours of SEIT and 3 half hour sessions of SLT , weekly. (Ex H 3) J 11/2/2023 Service Affidavit

Agency present rates of $[REDACTED] per service hour for SEIT services; and $[REDACTED] per hour session of SLT, which amounts to $[REDACTED] per half hour.

K Undated 1040 Tax Form

Parent gross income is shown to be $38,650.00, for the 2022 calendar year.

L 11/3/2023 [REDACTED]Testimony Affidavit

Student’s mother provides Testimony that includes:

- Lack of an IEP meeting since 2020; - During the 2022-2023 school year, Student received 8 hours of bilingual [REDACTED] SEIT services, as well as [REDACTED] speech-language therapy (3x30, 1:1) and Occupational Therapy (2x30, 1:1); - Student made progress as a result of the above services; - The program he received was individualized to meet his needs and his providers created goals specifically tailored to his learning, attentional, and language challenges; - In light of Student progress, the Parent continued the Student services, engaging [REDACTED] (Ex L 1); - Student still requires the Special Education services; - Without a current IEP Parent continued the Student services; - Parent requests DOE funding of Student services t the contracted rates; - Parent is financially unable to fund the services directly; - Parent has been unable to engage an OT provider, and is seeking an Order for market rate services to engage a provider, for the Student; and - Student services remain appropriate and allow him to remain in a mainstream setting. (Ex L 2)

M 11/2/2023 [REDACTED] Testimony Affidavit [REDACTED] Agency Care Operations Manager confirms the Agency provides special education services, by teachers certified in special education, and the associate rates, of $98.00 per hour of SEIT, and $[REDACTED] per hour of SLT.

N 11/6/2023 [REDACTED] Testimony Affidavit [REDACTED] Clinical Supervisor provides Testimony that includes:

- Familiarity with the Student; - Student received SEIT and SLT service during the 22-23 school year (Ex N 1-2); - Progress reports provided are accurate, and recommend continued Student services; - Student SEIT services are provided as pull-out sessions; - Student remediation is implemented via individualized curriculum, developed in alignment with Common Core Standards (Ex N 2); - Progress Reports list Student’s goals which have been carried over to the 23-24 school year; - Student has made and will continue too make progress with the provided services; - Student providers tailor goals and interventions to specifically address the Student’s complex needs, an provide the intensive support required tio make progress and generalize skills to the mainstream environment. (Ex N 3)

O 6/19/2023 Special Education Progress Report

Details Student areas of challenge, goals, supports, amd progress is noted, in areas of:

- Reading (Ex O 1-2); - Writing (Ex O 2-3); - Math (Ex O 3); - Language (Ex O 3-4); - Social-Emotional (Ex O 4-5); and - Executive Functioning. (Ex O 6)

P 6/11/2023 Speech-Language Progress Report

Report details areas of Student delay, goals, supports, and notes progress.

Skills areas addressed include:

- Language: Receptive and Expressive (Ex P 1-2); and - Speech: Oral Motor and Articulation. (Ex P 2-3)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at ^[130]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law §3602c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law §§ 3602-c; 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).

If disputes occur between parents and school districts related to IESPs, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections of the IDEA and the analogous State law provisions is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

Under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the district of location 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]). [State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).]

"Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]). The CSE must assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (Educ. Law § 3602-c[2]). State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007 – Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 at p. 11, VESID Mem. [Sept. 2007], available at http://www.p12.nysed.gov/specialed/publications/policy/nonpublic907.pdf).

The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district for the purpose of receiving special education programming under Education Law § 3602-c, services for which a public school district may be held accountable through an impartial hearing.

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).

The district "'need not make FAPE available'" to a student who has been parentally placed in a private school in the district of location and who has been evaluated and provided with an IESP by the district of location. While the statutory scheme of Education Law section 3602-c places the responsibility of selecting and placing the student in a nonpublic school on the parent, the implementation of the services called for by a student's IESP falls on the district insofar as "boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). See, Application of Student with a Disability, SRO Appeal 16-008. While it may very well be permissible for a district to include the parent in the identification of particular provider, especially if the parent is willing and able to do so, it does not follow that the responsibility to redress a parents' inability to locate a provider is shifted permanently to the parent. See, Application of Student with a Disability, SRO Appeal 17-034.

Additionally, unlike the proportionate share and services plan provisions of the IDEA, § 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404 (Educ. Law § 3602-c[2][b][1]). The dual enrollment option and due process rights conveyed in § 3602-c are unavailable to students who do not reside in New York (Educ. Law § 3602-c[2][a], [2-b]). Thus, the State law dual enrollment option confers an individual right to have the CSE design a plan to address the student's individual needs (see Educ. Law § 3602-c[2][b][1]; Thomas K, 14 N.Y.3d at 293). This provision is separate and distinct from the State's adoption of statutory language effectuating the federal requirement that the district of location "expend a proportionate amount of its federal funds made available under part B of the individuals with disabilities education act for the provision of services to students with disabilities attending such nonpublic schools" (Educ. Law § 3602-c[2 a]). Providing notice by the June 1st deadline is key in engaging special education services, via the District. Consideration must be given to whether or not the Parent made it sufficiently clear that she was seeking IESP services at a private school.

The United States Department of Education provides the following interpretive guidance:

If a parent makes clear his or her intention to keep the child with a disability enrolled in the private school, is the LEA where the child resides obligated to offer FAPE to the child and develop an individualized education program (IEP) for the following school year, and annually thereafter?

Answer: No. Absent controlling case law in a jurisdiction, after the LEA where the child resides has made FAPE available to the child, and the parent makes clear his or her intention to not accept that offer and to keep the child in a private school, the LEA where the child resides is not obligated to contact the parent to develop an IEP for the child for the following year and annually thereafter. However, if the parent enrolls the child in public school in the LEA where the child resides, the LEA where the child resides must make FAPE available and be prepared to develop an IEP for the child.

("Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools" 80 IDELR 197 [Office of Special Education and Rehabilitative Services 2022])

The Commissioner of Education has determined that a parent's lack of awareness of the June 1st statutory deadline does not invalidate the parent's obligation to submit a request for dual enrollment by the June 1 deadline (Appeal of Austin, 44 Ed. Dep't Rep. 352, Decision No. 15,195, available at https://www.counsel.nysed.gov/ Decisions/volume44/d15195; Appeal of Beauman, 43 Ed Dep't Rep 212, Decision No. 14,974 available https://www.counsel.nysed.gov/Decisions/ volume43/d14974).

Specifically, the Commissioner stated that Education Law § "3602-c(2) does not require [the district] to post a notice of the deadline" and that a parent being "unaware of the deadline does not provide a legal basis" for the waiver of the statutory deadline for dual enrollment applications (Appeal of Austin).

Parent must also meet the burden of establishing that the unilaterally obtained special education services, such as Special Education Teacher Support Service (SETSS), are appropriate to meet student’s needs.

Funding for parent obtained services can potentially be awarded, from the school district after the IEP dispute is resolved, if they a three-part test is satisfied. This test has come to be known as the BurlingtonCarter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted], cert. denied sub nom., Paulino v. NYC Dep't of Educ., 2021 WL 78218 [U.S. Jan. 11, 2021], reh'g denied sub nom., De Paulino v. NYC Dep't of Educ., 2021 WL 850719 [U.S. Mar. 8, 2021]; see Carter, 510 U.S. at 14 [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]). Accordingly, the parent's request for district funding of the privately obtained SETSS at issue here must be assessed under this framework.

Burlington Carter analysis is a part of the analysis undertaken, in considering a Due Process Complaint, related to obtaining services, under Educ. Law §3602-c.

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14).

Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).

When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

REVIEW OF THE EVIDENCE

In this matter the DOE takes the position that it is entirely the Parent’s burden to undertake to provide special education services to the Student.

The DOE points to the June 1st requirement, discussed above, as a catch all for any failure the DOE accumulates.

It is worth noting that the Parent’s obligation, to submit a June 1st letter, remains fact specific to each case.

Additionally, though not binding, the New York State Review Officer (SRO) acknowledges that even if the Parent failed to provide the referred to June 1st letter, a district may remain obligated to offer the student a FAPE, and perhaps should have developed an IEP for the student. (Application of a Student with a Disability, Appeal No. 23-032, March 2023)

In this case the DOE certainly knew of the Student and the obligation of the DOE to engage the special education process, for the 23-24 school year.

The DOE has evidenced no action to evaluate the Student, or otherwise offer a FAPE for the Student who has already been identified as one entitled to special education services.

Despite the Student receipt of special education services, for the 22-23 school year, the DOE opted to take no action to communicate with the Parent, evaluate the Student, or otherwise provide any action related to its obligations.

The IDEA places an ongoing, affirmative duty on State and local educational agencies to identify, locate, and evaluate students with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 CFR 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 [S.D.N.Y. Oct. 28, 2019], aff'd, 2021 WL 745890 [2d Cir. Feb. 26, 2021]; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][1], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]).

The DOE certainly identified the Student and then effectively walked away from its obligations.

A board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1], [7]).

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]).

To support a finding that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent in failing to order testing, or have no rational justification for deciding not to evaluate the student (Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225).

In this case it is clear the DOE overlooked this Student’s status as one in need of special education services.

States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 819 [C.D. Cal. 2008], citing 20 U.S.C. § 1400[c][5]).

Obviously, one strategy would be to timely evaluate Student; conduct timely IEP meetings; and respond to Parent communications.

Additionally, a school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's RtI program (8 NYCRR 200.4[a]; see also 8 NYCRR 100.2[ii]).

Parent notified the DOE of concerns relating to the 23-24 school year which continue to be ignored. (Ex A & D)

New York State education Department guidance document adds additional layers of consideration regarding the case at hand.

Guidance was issued, in September of 2007, entitled: Chapter 378 of the Laws of 2007 - Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section

3602-c. (GUIDANCE)

The guidance document reiterates child find requirements noting that:

Unless the parent and district agree otherwise, the district of location must conduct a reevaluation at least once every three years of each eligible parentally placed nonpublic school student with a disability, even if the student is not currently receiving special education services. It is important that required reevaluations are conducted because they provide current data needed to determine the total number of eligible students which is used in calculating the proportionate share of funds that must be used on services.” (GUIDANCE at page 3)

Evidence shows the Student services provided were specially designed to meet the student's needs.

Evidence includes student goals, progress reports, and how the sessions were "specialized" to the student, what student needs the sessions addressed, and whether the services were recommended to continue.

(Ex L, M, O & P)

Evidence supports continuing Student services, as indicated in most recent agreed upon IEP, and as recommended in recent Student Reports. (Ex B, O & P)

In this case, at no point during the impartial hearing did the District offer any evidence that it attempted to offer the Student a FAPE, or otherwise facilitate appropriate Student services, for the 23-24 school year.

The DOE also failed to evidence any action by the Parent that thwarted any effort of the DOE to offer a FAPE, or facilitate appropriate Student services.

The district does not challenge that the parent is authorized to select a provider of her choosing.

The district does not explain why it did not simply schedule the mandated services as envisioned under the IEP/IESP and, in essence, inform the parent where and when the services would be available, and at which time the parent would have the responsibility to produce the student in order to receive the services.

A district cannot be absolved of its statutory obligation to implement services for the student simply by being inactive in implementing the mandated services. The district had the obligation to provide services to the student in conformity with her IEP, or IESP (Educ. Law § 3602-c[2][a], [b][1]; see 20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see also 20 U.S.C. § 1414[d]; 34 CFR 300.320).

I find the Student is entitled to receipt of the services sought under the DPC. (Ex A & B)

I find the DOE failed to offer the Student a FAPE for the 23-24 school year and failed to act to implement appropriate Student services for the Student, for the 23-24 school year.

I find the evidence outlined above supports the necessity of the sought after Student services via District funding.

SEIT SERVICES

I note that many times the terms Special Education Itinerant Teacher (SEIT) services and Special Education Teacher Support Services (SETSS) are used interchangeably, and while individuals may provide similar services irrespective of what they are labeled, using these terms as synonyms obscures, rather than clarifies, what special education services might have been appropriate for the student at different points in his education.

For instance, SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6) and it is not defined in the hearing record in this proceeding. State law defines SEIT services as "an approved program provided by a certified special education teacher . . . , at a site . . . , including but not limited to an approved or licensed prekindergarten or head start program; the child's home; . . . or a child care location" (Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]; see "Special Education Itinerant Services for Preschool Children with Disabilities," Office of Special Educ. Field Advisory [Oct. 2015], available at http://www.p12.nysed.gov/specialed/publications/2015memos/documents/SpecialEducationItine rantServicesforPreschoolChildrenwithDisabilities.pdf; "Approved Preschool Special Education Programs Providing Special Education Itinerant Teacher Services," Office of Special Educ. [June 2011], available at http://www.p12.nysed.gov/specialed/publications/SEITjointmemo.pdf). In addition, SEIT services are "for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities" (8 NYCRR 200.16[i][3][ii] [emphasis added]).

SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6). According to New York State Review Officer, NYC DOE has the responsibility to clearly define what constitutes SETSS for each student who receives such service. See Application of a Student with a Disability, Appeal No. 18-112 citing Application of a Student with a Disability, Appeal No. 16-056 (see e.g., Application of a Student with a Disability, Appeal No. 17-103 defining SETSS as 1:1 direct instruction of the student by a certified special education teacher in the student's home).

In this matter, SEIT services are the main form of relief sought by the Parent, but by regulation such services are typically not allowed for school-aged students whereas SETSS could be permissibly recommended for a student.

However, whether denominated as SEIT services or SETSS, the substance of the relief sought in the instant matter is the provision to the student of educational services by a special education teacher who assists the student in addition to the student's classroom program.

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE, for the 23-24 school year.

2. The DOE failed to facilitate appropriate Student services for the 23-24 school year.

3. The DOE shall fund Student services, for the entire 23-24 school year, at reasonable market rate, via Parent chosen provider(s) as set forth below.

Reasonable Market Rate shall include the Contracted Rate of $[REDACTED] per hour of SEIT, and $[REDACTED] per half hour of SLT. o Special Education Itinerant Teacher Services (SEIT), via a special education teacher, 8 hours weekly o Occupational Therapy (OT), Individual, [REDACTED], 3x30 minutes per week; and o Speech-Language Therapy (SLT), Group Service, [REDACTED], 2x30 minutes per week.

4. The DOE shall provide Parent with any documents or forms necessary to facilitate services, and payment under this Order, within ten days of the date of this Order.

5. This decision is subject to appeal and review by the State Review Officer.

DATED: November 22, 2023

DANIEL AJELLO

DANIEL AJELLO

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.

Footnotes

[130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). A board of education must offer a free appropriate public education (FAPE) to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, 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]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).