New York City Department of Education, Impartial Hearing Decision

DECISION ORDER Case Number: 182274 Student’s Name: Redacted Hearing Requested By: Parents Hearing Officer: Martin J. Kehoe I], Esq.

Introduction This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) 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 pendency hearing was held on April 16, 2019 and I issued a pendency order on the same day. A hearing was held on May 20, 2019; July 17, 2019; November 14, 2019; November 25, 2019; January 15, 2020; February 5, 2020; March 4, 2020; April 23, 2020; May 25, 2020; May 26, 2020; July 1, 2020; and August 3, 2020. I issued an interim order on July 1, 2020 for a neuropsychological evaluation, a bilingual speech-language evaluation, and an occupational therapy evaluation. Parent’s Position In the complaint notice, dated March 27, 2019 (Ex. A), the Parents alleged that the District failed to provide the Student with a free appropriate public education (FAPE) for the 2017-2018 and 2018-2019 school years. The Parents are seeking payment for five periods per week of Special Education Teacher Support Services (SETSS) at an enhanced rate from September 5, 2018 through June 30, 2019; payment authorizations for a neuropsychological evaluation, bilingual speech and language evaluation, and an occupational therapy evaluation (complete via interim order); for the Committee on Special Education (CSE) to reconvene following the evaluations to create a new individual education service program (IESP); and compensatory SETSS services for the services not received during the 2017-2018 school year (Ex. A).

District’s Position The District did not submit any evidence or call any witnesses. Student History The Student has a disability classification of speech or language impairment and presents with delays in his cognitive skills and attending skills (Ex. B). Background of the Case In the IESP, dated November 23, 2016, the district recommended SETSS in five times per week (Ex. B). The Parent contacted ten SETSS providers at the District rate; however, none were available for the 2017-2018 school year (Ex. E). The Private Agency provided five hours per week of SETSS to the Student, at a rate of $125 an hour, during the 2018-2019 school year (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).! A FAPE 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. 3 615(b)(1)) 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| 1 “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). 4 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 it 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 USS. 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 2 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 (201 9), 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 to set up and maintain a bank of 200 hours of compensatory SETSS services (at an enhanced market rate at the time the services are provided) to be determined by the District’s “implementation unit” in consultation with the providers and/or their agents. Such SETSS hours shall be used within the next three years to remedy the lack of services during the 2017-2018 school year, if the hours are not utilized they shall be forfeited; and For the District to pay for five periods per week of SETSS services, for the 2018-2019 school year, as identified in the uncontested IESP, at an enhanced market rate to be determined by the District's “¢mplementation unit” in consultation with the providers and/or their agents. Dated: September 28, 2020 x So Ordered, Martin J Ccchoe Il, Esq. Impartial Hearing Officer 3 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.

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://Awww.sro.nysed.gov.

Impartial Hearing Disclosure (Submitted by parents) Student: L.H. Case #182274 Item Date Description Number of Number Pages A 3/27/19 Impartial Hearing Request 3 B 11/23/16 IESP - 12 C_ {S/A9A9 | Affidavit of SETSS Provider 1 D Various dates Certifications of | | 6 E Various dates List of SETSS providers contacted by the 1 parent Ni<)=[sl<[q]sla)mjoprjojzjzirya|—] 7) RO)