New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 614118 - NYC: 261063

FINDINGS OF FACT AND DECISION

Case Number: 261063

Student’s Name: Student

Impartial Hearing Officer: Michael Das

Date of Initial Filing: 09/14/2023

Hearing Requested by: Parent

Date of Hearing: 11/16/2023

Record Close Date: 11/28/2023

Date of Decision: 11/28/2023

ISSUES

The Parent, through Advocate, filed a Due Process Complaint (“DPC”) on or about September 14, 2023. In the DPCs, the Parent alleges that the DOE failed to properly fulfill its equitable duties in implementing the education program for the Student’s 2023-2024 school year. (Ex. A). It further alleges that the DOE did not provide the Student with special education services on an equitable basis for the 2023-2024 school year by failing to provide the Student with Special Education Teacher Support Services (“SETSS”) as well as other related service Parent is not seeking.

As relief, the Parent requested an order finding that the DOE failed to provide the Student with special education services on an equitable basis for the 2023-2024 school year with a provider of their choosing at a rate of their choosing.

PROCEDURAL HISTORY

I was appointed impartial hearing officer (“IHO”) for this case on September 28, 2023. An initial settlement conference was held with the representatives of the parties on November 3, 2023. An impartial hearing on the merits was conducted on November 16, 2023. Parent’s exhibits A-E were admitted into evidence as was District’s exhibit 1. The exhibit list of disclosures admitted into evidence are appended to this order.

FINDINGS OF FACT

The student had received an IEP in 2021 and was therefore identified by the District as a student with a disability. In that IEP, it was recommended the student receive four periods per week of direct and group services of SETSS for English as a Second Language (ELA) and two periods per week of direct and group services of SETSS for Math. (Ex. B). The District failed to implement the Student’s program by failing to obtain a provider to service the Student. Consequently, the Parent was required to obtain a provider for the above services.

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998). Two purposes of the 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]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”

Under New York State Education Law section 3602-c, students with disabilities who are placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP from the public-school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them. The CSE of the district of location must develop an IESP in the same manner and with the same contents as an IEP. See, Memorandum from James P. DeLorenzo, re: Chapter 378 of the Laws of 2007, New York State Education Department, Sept 2007. A parent who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location. See, Id. at 5.

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. 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.” Id. Additionally, unlike the provisions of the IDEA, section 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. Id. Except for in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing (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]; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]). The District has the obligation to provide services in conformity with the IESP. See, Educ. Law § 3602-c(2)(a), (b)(1); 20 U.S.C. § 1401(9)(D); 34 CFR 300.17(d); see also 20 U.S.C. § 1414(d); 34 CFR 300.320.

ANALYSIS

Here, it is undisputed that the Student was offered services in the prior IEP, effectively putting the DOE on notice that there was a student with special needs that required services. DOE made cursory June 1st arguments but did not provide any evidence to support their affirmative defense. The services in the Student’s last IEP were not provided by the District. The record is void of any direct evidence suggesting that the District located a service provider or the provider Parent found has an unreasonable rate. Moreover, DOE made claims Parent’s provider is seeking an unreasonable rate for their services; however, DOE provided no direct evidence or testimony demonstrating what is a reasonable market rate, other than vague, unproven statements argued on the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, I find that the District failed to provide the Student a Free and Appropriate Public Education during the 2023-2024 school year.

It is hereby:

ORDERED THAT, the DOE’s Implementation Unit is directed, upon submission of invoices for services rendered and a valid contract between the Parent and properly credentialed providers, to reimburse and/or directly fund four periods per week of direct and group services of SETSS for English as a Second Language (ELA) and two periods per week of direct and group services of SETSS for Math, as listed in the 2021 IEP, for the 2023-24 school year at a “reasonable market rate” and/or “fair market value” -- meaning at a rate the DOE’s implementation Unit has previously funded similar services within the last 6 months prior to the issuance of this decision – within forty-five (45) days of receipt of the supporting documentation.

Dated: November 28, 2023

__/u/Michael Das__________

Michael Das

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DISTRICT EVIDENCE

Exhibit	Title	Date	Pages
1	Prior Written Notice	6/4/2023	4

PARENT EVIDENCE

Exhibit	Title	Date	Pages
A	DPC	9/14/2023	5
B	IEP	4/19/2021	25
C	Service Contract	9/4/2023	1
D	Provider Credentials	Numerous Dates	1
E	Progress Report	11/8/2023	3

IHO EXHIBITS

N/A