Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 262584

Student’s Name: [REDACTED]

School District: [REDACTED]

Impartial Hearing Officer: Joshua Pal

Date of Filing: 09/21/2023

Hearing Requested by: Parent

Date of Hearing: 12/05/2023

Record Close Date: 12/11/2023

Date of Decision: 12/11/2023

BACKGROUND

Parent, 1 through counsel, filed a Due Process Complaint (“DPC”) on or about September

0F

21, 2023. (Ex. A). In the DPC, the Parent alleges that the Department of Education (“DOE” or “District”) failed to implement an individualized education service program (“IESP”) for the 2023-2024 school year. (Id.).

Parent alleges that the DOE failed to implement Special Education Teacher Support Services (SETSS), which were recommended in a January 12, 2023 IESP for the 2023-2024 school year. (Id.). By way of relief, Parent seeks an order funding Student’s SETSS at an enhanced rate for the entire 2023-2024 school year. (Id.). In light of the foregoing and as more fully discussed below, I find that Parent failed to make a timely request for equitable services by June 1, 2023. Further, even if a timely request were made, I find that a) the DOE failed to meet its burden that it offered Student services on an equitable basis for the 2023-2024 school year, but b) Parent failed to meet their burden that Provider Agency offers Student specially designed instruction sufficient to meet Student’s needs, and c) the equities would not support the Parent’s requested relief even if Prongs I and II were met.

PROCEDURAL HISTORY

I was appointed on October 5, 2023. On October 24, 2023, the parties appeared for a settlement conference. The parties indicated that no resolution had been reached, and the matter was scheduled for a Due Process Hearing (“DPH”) to be held on November 15, 2023. Parent later notified myself and the District of the need for a new date due to the unavailability of their witness, and it was agreed that the DPH would be held on December 5, 2023. Parent also requested an extension of the compliance date to accommodate this request, which was granted.

On December 5, 2023, both parties appeared for a virtual hearing. The DOE submitted six exhibits into the record, 2 but presented no witnesses for testimony. Parent offered five

1F exhibits into the record, four of which were accepted into evidence. 3 4 Included in Parent’s 2F 3F

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 DOE exhibits 2, 3, 4, and 6 were entered into the record over Parent’s objection. Specifically, Parent objected to exhibits 2-4 as irrelevant to the school year in question, despite these records being incorporated into District’s Exhibit 1 and Parent’s Exhibit B (1/12/23 IESP), to which Parent had no objection. 3 Parent acknowledged that their Exhibit B was identical to and duplicative of District’s Exhibit 1 (1/12/23 IESP) yet elected to not withdraw this exhibit and asked that it be entered into the record. From this point forward, any reference in this decision to the IESP at issue will cite to District’s Exhibit 1 for the sake of conciseness. 4 District objected to Parent’s Exhibit C (Parent Service Agreement), as it purported to be a contract between two parties, yet the document was only signed by Parent and not by any representative of Provider Agency. Parent Representative argued that this document needed only be signed by Parent. District inquired whether Parent would be made available for questioning about this document, to which Parent maintained that they were not present, as the evidence was one affidavit, from Director of Provider Agency, who also serves as the Service Provider in this matter. 5 The District cross-examined the affiant, after which Parent rested. Both

4F parties then made oral closings (See December ^[5], 2023 Transcript).^[6] 5F

FINDINGS OF FACT AND DECISION

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

Student is currently a tenth-grade student parentally placed at Private School who is classified as having a Learning Disability. (Ex. 1, A). Student’s classification is not in dispute. In the first quarter of ninth-grade, Student earned grades ranging from 79-100 in their various subjects and earned Second Honors during that quarter. (Ex. 1, 3). Student was enrolled in Honors English and Global Studies classes. (Ex. 3). At that time, Student had difficulties in reading (decoding) and language, which impacted their writing, math, and executive functioning. (Ex. 1). Student had difficulty applying math concepts on exams, which their math teacher attributed to a lot of absences. (Ex. 4). On or about January 12, 2023, the Committee on Special Education (“CSE”) convened to develop an IESP, to be implemented in the 2022-2023 school year (starting on January 26, 2023. (Ex. 1). The IESP recommended that Student receive five periods of SETSS weekly in a group. (Id.). The IESP also established several goals for Student, including decoding new words, improving accuracy and fluency in reading at grade level, answering comprehension questions based on grade-level reading, spelling unfamiliar words, improving organization of written work, and improving editing of their written work. (Id.).

On or about September 1, 2023, Parent signed a document titled “Agreement for Services.” (Ex. C). The document indicated that Provider Agency would provide five hours of SETSS for Student for the 2023-2024 school year at a rate of $195 per hour. Parent now seeks funding for these services.

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

document was not an affidavit and was not Notarized. I had the exhibit marked for identification, subject to the testimony of Director, who Parent representative maintained could speak to its contents. Despite the limited testimony offered by Director, I am admitting this document into evidence and will give it as much or as little weight as I deem appropriate, to be discussed later in this decision.

FAPE

The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (20 U.S.C. § 1401(9)). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

Dual enrollment/June 1 requirement

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412(a)(l)(A); Educ. Law§ 4402(2)(a), (b)(2)). The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137(a)). Under State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c(2)). Then, the district of location's CSE must review the request and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law§ 3602-c(2)(b)(l)).

Here, prior to the DPH, on the cover page of their disclosures, District raised the issue of notice under the June 1 requirement. (See DOE Exhibits). In their opening statement, District again asserted the defense, indicating that no notice was given as required under Educ. Law § 3602-c. (See Transcript). Parent Representative confirmed that they would not be offering any evidence of notice given to the District prior to June 1, 2023 and argued that District had the burden of proof with respect to the defense asserted. (Id.). I find that the District properly asserted the defense of the lack of June 1 notice. I further find that there is no evidence in the record before me that the requirements under Educ. Law § 3602-c were satisfied. (See Application of a Student with a Disability, Appeal No. 23-140, Application of a Student with a Disability, Appeal No. 23-162).

Parent Representative did not argue that actual notice was made by June 1, 2023 or even request an opportunity to obtain evidence to rebut District’s asserted defense, though they had at least five business days’ notice of the District’s position. There is nothing in the record to suggest that Parent was denied the opportunity to offer proof of their statutorily required request for services for the 2023-2024 school year into evidence. Having found that the June 1 requirement under Educ. Law § 3602-c(2) was not satisfied, I find that Student is ineligible to receive special education services and am dismissing this matter with prejudice.

For completeness of the record, were the June 1 defense not applicable or the notice requirement was satisfied, I will discuss the merits of Parent’s claims. For reasons discussed below, were the case not dismissed due to the June 1 requirement and Student was in fact entitled to special education services for the 2023-2024 school year, I would find that Parent is not entitled to the relief being sought. As SROs have recently held, cases such as this are subject to analysis under the Burlington/Carter standard, the prongs of which are discussed below. (See Application of a Student with a Disability, Appeal No. 23-140, Application of a Student with a Disability, Appeal No. 23-162).

Prong I

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at hearing. It is undisputed that District did not implement the January 12, 2023 IESP for the 2023-2024 school year and make a provider available for Student. Therefore, I am constrained to find that the DOE failed to offer Student equitable services for the 2023-2024 school year. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer equitable services for the 2023-2024 school year.^[7] 6F

Prong II

A private school placement must be "proper under the Act." Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985). This means that the private school must offer an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d at 112)" Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)

Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

Director testified that they have provided SETSS for Student since September for the 2023-2024 school year. (Ex. D). Director testified that they began working with Student in October 2022 and speaking with Parent the month before. (Id., See Transcript). Director testified that the services include individually designed instruction and support in multi-subject areas tailored to Student’s unique learning style and that the designed instruction references and utilizes the goals and objectives outlined in Student’s IESP. (Ex. D). Director testified that they utilize evidence-based multisensory teaching methods to engage and enhance Student’s learning, especially in decoding, fluency, comprehension, and retention. (Id.). Director offered no testimony with respect to how they screen new students, how they identify students’ needs and goals, how they prepare for sessions with students, or how they came to be in contact with Parent and Student regarding their SETSS.^[8] 7F

I find that Parent has not met their burden in proving that Provider Agency offered an educational program which met Student’s needs under Prong II of the Burlington/Carter standard. First, there was no evidence offered into the record with respect to Student’s progress since they started receiving services from Provider Agency. A student’s progress at the private placement is a relevant factor in assessing the appropriateness of the placement but is not in itself sufficient to determine that the placement is appropriate. Likewise, lack of progress itself does not mean that the parents’ placement was inappropriate. Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 (S.D.N.Y. 2011). Here, the only information in the record regarding Student’s levels of performance are their grades from the first quarter of ninth grade and two teacher reports from Private School from January 2023. (Ex. 2, 3, 4). Student’s report card indicated that they earned Second Honors in the first quarter of the 2022-223 school year. (Ex. 3). Student’s exam scores grades declined between November 2022 and January 2023 in Math and English Language Arts, and Student had difficulty handing in assignments on time.^[9] (Ex. 2, 8F

4). There were no other documents offered regarding Student’s performance since January 2023, despite the fact that the IESP indicated that reports on progress towards annual goals would be provided when report cards are issued. (Ex. 1). Given that, it is impossible to determine whether and to what extent Student progressed to date. Director testified that Student was failing science, so Director requested that Student be moved to a “regular-paced class” and is now doing better. (See Transcript). As the Student’s performance improved after changing classes, I cannot find or measure how much of the Student’s progress is attributable to Provider Agency’s services, if any. Further, when asked if they created progress reports, Director testified that they keep a log of their work with Student and that progress is measured mostly by grades on assignments and assessments. Notwithstanding the fact that Director’s logs were not offered into evidence as an indication of their work with Student, I find that the failure to track progress with respect to the goals on the IESP, when these goals purport to form the basis of Director’s work with Student, according to their affidavit testimony, is troubling.

In reviewing the record before me, I find that the weight of the evidence does not establish that Student’s individual special education needs were addressed by Provider Agency or that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. As a final point, Director testified that they did not provide SETTS for Student for most of the month of November 2023, due to their own medical treatments, and would not be making up those sessions, as that was “not allowed.” (See Transcript). Likewise, a substitute provider was not assigned to work with Student during Director’s period of absence, as that is similarly “not allowed”. (Id.). While I sympathize with Director and acknowledge that medical situations can be beyond one’s control, I find that by not arranging for services for nearly a month or making up missed sessions that Student was allegedly entitled to, Director has demonstrated a misunderstanding of Student’s mandate, which raises questions about the appropriateness of the program offered to Student.

Equities

While I find that Parent failed to meet their burden as to the appropriateness of the unilateral placement, I will analyze the equities for completeness. Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009) In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Here, Parent failed to provide the necessary Ten-Days’ Notice of their concerns with the DOE’s offer of equitable services for the Student for the 2023-2024 school year. Such a notice should have detailed specific concerns and furthermore given the DOE notice of their intention to unilaterally obtain services for Student at Provider Agency and seek funding from the District. No evidence was submitted at the hearing regarding providing DOE with such notice.

With respect to the contract, I find that the record, taken as a whole, did not create a financial obligation on Parent’s behalf, which would be required for direct funding. (See Application of a Student with a Disability, SRO Opinion No. 23-122). While the “Agreement for Services” offered into evidence contains what would be considered material terms of a contract (amount of services, duration of services, rate charged for services), it was only signed by Parent and does not contain an acknowledgment of any obligation on Provider Agency’s part. (Ex. C). The document contains five enumerated clauses, which purport to demonstrate Parent’s understanding of their obligations. (Id.). Specifically, the document states that Parent agrees that Provider Agency will provide SETSS to Student, that the amount of services are based on the January 12, 2023 IESP, that the rate is $195 per hour, that if the DOE does not pay for the services, that Parent will be responsible, and that Parent agrees and understands that they are responsible for the amounts charged. (Id.). There is no similar statement wherein Provider Agency agrees to provide these services. (Id.). Parent Representative argued that only “the party to be charged” is required to sign a contract. Parent Representative likewise failed to make Parent available for questioning regarding this document, as the document is not an affidavit and is not notarized, and that Director could testify regarding the agreement. When questioned by the hearing officer, Director could not recall if they sign their contracts or whether only the Parent signs them, or what their practice is, despite owning the company since approximately

2012. (See Transcript). I find that Parent’s Exhibit C is not an “agreement”, despite its title, as Director did not sign it. Based on the text of the document, I find that this document is more akin to an unnotarized affidavit from Parent, containing their understanding of services to be provided. Further, Director testified that services were not provided from early November until late November, due to a medical issue. (Id.). While a reading of the “Agreement for Services” would suggest that Provider Agency was obligated to provide services for the entire 2023-2024 school year and Parent was obligated to pay for these services, Director’s testimony undermines that position. Given the gap in service, it is impossible to determine Parent’s actual financial obligation under the “contract”. Finally, Director was asked whether they would collect the balance of the rate for service from Parent, were the District to be ordered to fund the services at a rate below $195. (Id.). Director would not commit to an answer and stated that it would be negotiable. (Id.). Again, while Parent’s Exhibit C appears to create an obligation to pay $195 per hour, Director’s testimony contradicted that, and it creates uncertainty whether Parent is actually liable for the fee or whether the $195 per hour being requested is inflated for the purposes of these proceedings.^[10] Considering all of this, the equities would not support

9F awarding Parent their requested relief, even if the June 1 defense was not applicable or if Prongs I and II were satisfied under the Burlington/Carter analysis.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

(1) Parent’s claim for direct funding for the Student’s SETSS services by Provider Agency is DENIED for the 2023-2024 school year and this case is dismissed, with prejudice.

Dated: December 11, 2023

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

1. Individualized Education Services Program (IESP) 1/12/2023 10 pages DOE

2. Teacher Report - ELA 1/11/2023 3 pages DOE

3. Report Card 11/16/2022 1 page DOE

4. Teacher Report – Math 1/10/2023 4 pages DOE

5. Hourly Rates for Independently Contracted Special Education Teacher and Service Providers 10/2023 25 pages DOE

6. How to Read Salary Schedules undated 1 page DOE

PARENT EVIDENCE

A. Impartial Hearing Request 9/21/2023 5 pages

B. Individualized Education Services Program (IESP) 1/12/2023 10 pages

C. Parent Service Agreement 9/1/2023 1 page

D. Affidavit of [REDACTED] 11/28/2023 2 pages

IHO EXHIBITS

None

Footnotes

[5] Any reference in this decision to this individual or testimony of this individual will refer to them as Director, as a matter of conciseness.

[6] The instant decision is being issued prior to the completion of the December 5, 2023 transcript.

[7] Again, these conclusions are being offered presuming that Student was entitled to receive Special Education services for the 2023-2024 school year in the first place.

[8] On cross-examination, District asked Director about their status with respect to DOE’s list of approved providers. This will be discussed in more detail in the Equities section of this FOFD.

[9] While the cause for the decline is grades was not definitively identified in the documents, Student’s math teacher speculated that Student’s absenteeism contributed to it. In either event, it warrants mention that this occurred after Student began working with Provider Agency.

[10] With respect to the rate, District questioned Director about their testimony that they were approved by the NYC DOE to provide SETSS. (Ex. D). Director conceded that they had filed paperwork and were on a list of approved SETSS providers. Director further conceded that the DOE contracted rate for services was $41.98 per hour. (See Transcript). Director denied that they were appointed to work with Student for the DOE rate and testified that they would not provide services at that rate, as they would be operating at a loss. (Id.). This begs the question as to how Director began speaking with Parent and whether their presence on the list assisted them in reaching clients and contracting with them on behalf of Provider Agency at a rate nearly five times higher than the DOE rate. DOE offered no documents related to Director’s application to be included on the list of approved providers or Director’s obligation to accept the DOE rate for services rendered. Had District offered any evidence regarding this issue, it may be factored into findings with respect to the requested rate, but as they have not in this matter, I will not consider this position by District.