Impartial Hearing Decision

Case Number: Student’s Name: District: Hearing Requested By: Hearing Officer: DECISION ORDER 178364 Parent Martin J. Kehoe III, Esq.

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (HO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student. A hearing was held on December 12, 2018; January 9, 2019; February 7, 2019; April 10, 2019; June 18, 2019; August 20, 2019: October 24, 2019; November 13, 2019; and November 27, 2019. Until November 2019, the case was under investigation for settlement (T. 9, 15, 20, 24-25, 30, 35). However, the matter did not settle, and the parties went forward with their case on November 27, 2019. Parent’s Position In the complaint notice, dated October 3, 2018, the Parent alleged that the District failed to provide the Student with a free appropriate public education (FAPE) for in the 2018-2019 school year. The Parent claimed that the District did not schedule a CSE review meeting and develop a timely Individualized Education Services Program (IESP) for the 2018-2019 school year. The Parent is seeking payment for the Student’s Special Education Teacher Support Services (SETSS) provider at an enhanced rate of $175 per hour. The Parent is also seeking related service authorizations (RSA’s) for mandated services and an extended school year recommendation. (Ex. A)

District’s Position The District did not present a case, (T. 53) submit any evidence, or call any witnesses. The District did not object to the Student’s services (T. 55). During the hearing, the parties agreed to have the District Office of Implementation determine the market rate for the services (T. 55). Student History At the time the complaint notice was filed, the Student was years old with a disability classification of speech or language impairment (Ex. G). The Student presents with delays in reading, math, social, and language skills. His primary language is (Ex. C). Background of the Case The Student’s last IESP in the record, dated March 16, 2016, recommended group SETSS 8 times per week; 1:1 speech language therapy 3x30; and 1:1 occupational therapy 2x30 (Ex. G). The Parent contacted five potential SETTS providers on the dates of August 16, 2018; August 18, 2018; and August 29, 2018. Four providers were not available, and the fifth provider’s phone number was not in service (Ex. D). The Private Agency provided eight hours per week of 1:1 SETSS services to the Student during the 2018-2019 school year, at a rate of $175 per hour (Ex. F). The Private Agency providers work with students in their schools and use Orton Gillingham, Lindamood Bell, Applied Behavior Analysis and the ILAUGH model of social thinking in working with students. (Ex. B)

SETSS The Student has demonstrated progress with SETSS services. He is working on reading goals using the Wilson reading program and Orton-Gillingham. His reading skills have improved. He is making progress in math, and is able to count up to 150 and solve single digit addition and subtraction problems (Ex. C) The Student’s SETSS teacher recommends 8 hours of SETSS per week to bring the Student up to grade level, prevent regression, and maintain mastered skills (Ex. C). Legal Background The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a\(1). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that: - (A) have been provided at public expense, under public supervision and direction, and without charge, - (B) meet the standards of the state educational agency, - (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and - (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).! ' “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).

A PAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute ... is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005). The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)()) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002). Analysis This case is of a type that is gaining currency in the District. Apparently, there exists a disconnect between the rate that SETSS teachers are paid by the District and the market rate for the same services. Like this case, many parents are unable to secure the services that are mandated by the CSE’s action and an implementation problem ensues. Further, when the parents seek relief by filing a complaint notice, the otherwise functional settlement framework of the District seems to fail. The investigation stage of the settlement process is seldom, if ever, productive and as a result, the parents are at financial risk and/or the student is at risk of losing educational benefits that all would agree are appropriate. Until the District determines a mechanism to implement their recommendations in this changing market for services, this type of case will continue to proliferate the docket in the District. The pattern that I have noticed is that the parties ultimately reach an impasse and the District will concede that the services are needed. Given the District’s burden of going forward, that should be the end of the inquiry, but it leaves open the question of the rate for the substitute services. The District bore the burden of both production and persuasion to establish that 1t provided the Student with a FAPE as well as all other issues alleged in the DPC. N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No. (“SRO No.”) 16- 028; 13-200; SRO No. 11-091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District). See also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016). Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and. . . mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].

In this type of case before me, where the parties agree regarding services to be delivered, but the Parents cannot find a provider, there are myriad variables that influence the appropriate market rate for enhanced rate services. (i.e. language of delivery, locale of delivery, characteristics of student, agency overhead, frequency of services, etc.) The prospect of developing a full record in each of the numerous “enhanced rate” cases is daunting and while possible, in the existing environment on Special Education litigation in New York City’, an option has arisen that allows for flexibility and fairness while expeditiously ensuring the timely provision of services to the Students that all agree, require such services. Over time, I have begun to notice that the District’s “Implementation Unit”, when given the opportunity to execute interim orders and pendency decisions, is adept at identifying providers without issue. In effect that unit is “making the market” for enhanced rate services.” Accordingly, I order that the District pay for the services identified in the uncontested [ESP (Ex. G) at an enhanced market rate to be determined by the District’s “implementation unit” in consultation with the providers and/or their agents. I also order the District to provide RSA’s for mandated related services and to reconvene the CSE to consider extended school year services. This order encompasses the entire 2018-2019 school year. * In overruling the District objection to the instant disposition, I remain focused on the fact that the Student has been denied a FAPE for a long time during his short life and the District has been unresponsive over the course of this case. This is an obvious example of the endemic failures that plague the NYCDOE impartial hearing process. “The failure to promptly resolve due process complaints keeps children in an ‘administrative limbo’ and, for some, delays to free appropriate public education to which they are entitled” Deusdedi Merced, Report External Review of the New York City Impartial Hearing Office, at 18-19 (2019Y. ? While it may be inevitable for a provider to reach an impasse with the implementation unit, that has yet to be brought to my attention.

Dated: December 20, 2019 So Ordered, Martin J. Kehoe Iil, Esq. Impartial Nearing Officer

PLEASE TAKE NOTICE The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview. html

CERTIFICATION OF IMPARTIAL HEARING OFFICER Inthe Matter of: _ [Name of student] Hearing Dates: Varese alias af hia; Hio/| [is 6/1s| [1 >/0/\9 olay | ia, heh Nfazlic Case Number: (73 Sh UY L, Meals, Keltee , Impartial Hearing Officer in this matter, DO HEREBY CERTIFY that the attached Evidence and attached Index of Exhibits itemize the entire record before me in the above entitled matter as of this date. | FURTHER CERTIFY that the materials submitted herewith are either the original or true copy of the original documents submitted in this matter. — fag ft Received By: Impartial Hearing Office

IMPARTIAL HEARING DISCLOSURE Student: D.O.B. Date of Impartial:11/27/19 1.H.178364 ITEM DATE DESCRIPTION Number NUMBER — of pages 10/03/18 | Impartial Hearing Request 5 Program Description | 12 07/13/19 | Progress Report | 6 18/19 Parent Outreach ) 1 Providers Licenses we 2 03/19/19 | Affidavit of Services ] 03/16/16 | Individualized Education Services Program 5 09/21/18 | Retainer Agreement 3 CIAAIAOTVOWZSIOASTQF|>