Impartial Hearing Decision

Finding of Fact and Decision

Case Number: 182472

Student’s Name:

Hearing Requested By: Parent

Hearing Officer: Martin J. Kehoe III, Esq.

Actual Record Close Date: September 29th, 2020

DECISION ORDER

Case Number: 182472

Student’s Name:

Hearing Requested By: Parent

Hearing Officer: Martin J. Kehoe Ill, 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 hearing was held on July 18, 2019; September 18, 2019; November 14, 2018; February 5, 2020; April 2, 2020; April 20, 2020; and May 22, 2020.

Parent’s Position

In the complaint notice, dated April 11, 2019, the Parent alleged the District failed to provide a Free and Appropriate Public Education (FAPE) for the 2018 - 2019 school year. The Parent alleged deficiencies in the Student’s Individualized Education Plan (IEP), that the District failed to recommend appropriate services for the Student on the IEP, and did not explain to the Parent that she could request an Individualized Education Services Program (IESP) team. The Parent is seeking payment for the Student for 20 periods per week of Special Education Teacher Support Services (SETSS) at a rate of $150 an hour, RSA’s for mandated related services, and a recommendation for extended school year services (Ex. A).

District’s Position

The District does not agree with the Parent’s request for 20 periods of SETSS services at a rate of $150 (T. 56) but acknowledged that the Student does need special education services.

Background of the Case

The Student has a disability classification of learning disability. The Student was in eighth grade at the time of her IEP meeting and was on a second-grade level in reading and a third-grade level in math. The Student presents with expressive and receptive language deficits, auditory processing deficits, pragmatic deficits and, difficulty with reading and writing (Ex. B).

On the Student’s May 3, 2018 IEP, the CSE recommended a 12:1:1 special class and related services of individual counseling 1x30 and individual speech language therapy 2x30 and 3x30. (Ex. B). The SETSS Teacher Provided SETSS services to the Student for 10 hours per week from September 4, 2018 through June 20, 2019 for the 2018-2019 school year at a rate of $175 per hour (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)(D. “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, Wo

- {(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. § 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

' “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).

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

The Parent presented evidence in the form of a list of five SETSS providers that she contacted in an effort to provide SETSS for the Student (Ex. D). All five providers were either not available to provide the required services or not willing to provide SETSS at the standard District rate (Ex. D). Additionally, the Parent provided an affidavit by the SETSS agency (Ex. C).

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. 11-653; {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.) 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.2

Order

I order that the District fund:

• 10 hours per week of SETSS services from September 4, 2018 through June 30, 2019 at a rate to be determined by the Implementation Unit in consultation with the provider and/or agency . I also order the District to hold a new CSE meeting, if not already completed for the Student, to develop an appropriate IEP or IESP.

Dated: September 29, 2620

So Ordered,

Martin J. Kehoe IT], Esq.

Impartial Hearing Officer

2 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://www.sro.nysed.gov.