New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 184559

Students Name: ’

Date of Hearing: 07/22/19

0 9/10/19

12/10/19

01/31/20

04/01/20 ` 04/24/20

Home District:

Service District:

Hearing Requested by: Parent

Hearing Officer: Tina Millman

Record Close Date: 5/29/20

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 22, 2019

FOR THE DOE

DOE Representative

FOR THE PARENT

, ESQ Parent Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 10, 2019

FOR THE DOE

DOE Representative

FOR THE PARENT

, ESQ. Parent Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 1, 2019

FOR THE DOE

DOE Representative

FOR THE PARENT

, ESQ. Parent Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 10, 2019

FOR THE DOE

DOE Representative

FOR THE PARENT

, ESQ. Parent Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 31, 2020

FOR THE DOE

DOE Representative

School Psychologist

FOR THE PARENT

,ESQ. Parent Attorney

Parent

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 1, 2020

FOR THE DOE

DOE Representative

Assistant Principle

FOR THE PARENT

,ESQ. Parent Attorney

Parent

Speech Pathologist

Speech Pathologist

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 24, 2020

FOR THE DOE

DOE Representative

FOR THE PARENT

,ESQ. Parent Attorney

On July 22, 2019,September 10, 2019, November 1, 2019, December 10, 2019, January 31, 2020, April 1, 2020 and April 24, 2020 I conducted an Impartial Hearing at the NYC Department of Education ( DOE or “the district” ) Impartial Hearing Office, 131 Livingston Street, Brooklyn, NY, pursuant to the provisions of the Individuals With Disabilities In Education Act (IDEA), Section 504 of the Rehabilitation Act, and Article 89 of the New York State Education Law, for the failure of the New York City Department of Education to provide a Free Appropriate Public Education to ’ (hereinafter )for the 2019/2020 school year.

PROCEDURAL HISTORY

The proceeding was initiated at the request of the parent by correspondence dated July 1 2019. (Ex A) I was appointed as the Impartial Hearing Officer on July 8, 2019.

At a hearing on July 22, 2019, the Parent requested an Order concerning the student’s entitlements during the pendency of this matter and an Order was issued which provided the following pursuant to the IEP dated 4/09/18 (Exhibit B) and the IEP dated 6/18/19 (Exhibit C).

The DOE will continue to fund at their sole expense:

ORDERED that the Department of Education shall fund the students special education program of SEIT 10 hours per week and related services of Speech and Language Therapy 4 x 45 1:1, Occupational Therapy 3 x 45 1:1, and Physical Therapy 3x 45 1:1

The compliance date was extended as a result of requests by both parties in light of the possibility of settlement. Appended to the record are lists of persons in attendance and of documents submitted into evidence

The DOE CASE

The DOE submitted 18 pieces of evidence (1-18) and called 2 witnesses to testify to support their position that a FAPE was offered to the student for the 2019 2020 school ear. The DOE’s position is that the IEP created on 6/18/19 provided the student with a FAPE. They concede that at the time of the meeting mother provided the DOE with medical documentation to support that she was unable to attend school. As a result, the Team created an IEP which provided for appropriate special education services to be provided at home.

The Team had up to date progress reports from SEIT and related service providers. The reports were considered and discussed and ultimately was recommended for 10 hours of home instruction, PT and OT were increased to 3 x 45 minute sessions weekly and speech was increased to 4 x45 minute sessions weekly.

The first witness to testify was (hereinafter ), school psychologist. She is familiar with as she served as her case manager on her reevaluation as well as attending the June 2019 IEP meeting. spoke about her conducting the Vineland –DOE Ex. 10 on the telephone with the Parent and utilizing that at the meeting as well as utilizing reports from all of service providers. testified that the SEIT report (Ex 2) notes that a large part of the work she did with involved her working with a communication device. (Tr. 67) She continues that the report notes was overall making progress. (Tr.

68) continues that the OT, PT and Speech reports all note to be making steady progress and that the Team felt they had adequate information to make an appropriate recommendation. (Tr.68-72) Goals that were drafted came directly from input of her providers, current levels of performance, skills that need to be developed and the parent played a critical role. notes the Parent looked over all the goals and they were discussed and approved by her before they were finalized. (Tr. 75)

On cross-states that primary mode of communication was the Touch Chat Mini Speech Generating Device with Key Guard. She utilized that to answer questions and to display her knowledge of vocabulary. (Tr. 84-85) She agrees that it would be important for to have access to this device as it is essentially her voice. (Tr. 87)

discusses her conversations with the parent regarding home based instruction and the Parent’s concerns regarding the qualifications of the homebased instructor. More particularly the Parent was concerned that the instructor had knowledge of the communication device and was competent to work with The parent was concerned due to experiences she had with instructors that were sent over previous years. (Tr. 87-89)

She states that mother requested that home instruction be provided by the SEIT she was currently using however, who provided home based services was out of her control. (Tr. 91-92)

The second witness to testify on behalf of the DOE is who is the Assistant Principal of Home Instruction for District 75. He is familiar with as two years ago the case was sent to him to try and find a teacher for the child. He states that he found two teachers however the parent was unhappy. testifies both teachers solely work with alternate assessment students and both certified special education teachers. Ultimately, he was told not to send any more teachers, as the family was not interested. (T 112)

This past September he was instructed the family may be interested and sent a 3rd teacher who is special education NYS licensed and certified and works strictly with alternate assessment students. (Tr. 114) testifies that he is familiar with IEP and believes has the experience and skillsets to address the goals on IEP. He continues he has worked with all kinds of kids, alternate assessment functioning at all different levels. (Tr.116)

On Cross was asked to review IEP that he stated he was familiar with and upon reviewing Ex 16, discovered was not an alternately assessed student. (Tr.120) To conclude testifies that despite not being an alternately assessed student he still believes he has the experience to meet goals on her IEP. (Tr. 124)

THE PARENTS CASE

The Parent offers 15 pieces of evidence (A –0) and calls three witnesses to support their position that the IEP created on 6/18/19 fails to provide 1:1 instruction with a teacher who is appropriately trained to work with It is noted that the student who is classified as having “Multiple Disabilities” (classification is not in dispute) does not have medical clearance to attend a school based program due to her immune system being compromised. (Tr. 75) On 6/18 19 the CSE convened and recommended receive on a 12-month basis, 10 hours per week of home instruction. In addition, related services of Speech and Language 4 x 45, Occupational Therapy 3 x 45 and Physical Therapy 3 x 45 were recommended. The related services are not in dispute however the parents maintain the CSE failed to conduct necessary assessments before terminating 10 hours of one to one SEIT services. The parents maintain that the recommendation was pre-determined on district policy not based upon needs and that ultimately the IEP that was created is not sufficient for as it failed to provide a sufficient educational program for her.

The Parents assert that Home Instruction is not appropriate for In the past, providers that have been sent are unable to meet her needs as they do not have knowledge of how to work with an assistive communication device. The Parents contend that has a very specific learning profile and it is imperative for her to work with someone who knows how to use an assistive communication device with a touch screen such as Adrianna utilizes.

The first witness to testify is the Parent . She testifies that just turned 7, is still in diapers, completely non-verbal and is unable to feed herself, chew or able to express her wants and needs. (Tr. 136)

testified as to prior experiences at a school she attended causing major health concerns and how ultimately, she was diagnosed with a compromised immune system. (Tr. 140-146) When she did not have medical clearance to attend school and started receiving 10 hours of SEIT with related services noted a significant improvement in both her academics and her health. (Tr. 146)

In the Spring of 2019 she was contacted by the school psychologist who wanted to set up an IEP meeting. (Tr. 153) was not able to bring into the DOE building for an evaluation as she had recently been hospitalized so conducted a Vineland and Social history over the phone. (Tr. 154)

testified that at the meeting she was told that home instruction was not a program for and there is nothing that they could offer her, without her having to go to a hearing.

She contacted who sent . The two of them spoke and she discussed . told her he left the District 75 schools because he felt the demands placed on the students were too great. Upon seeing that had a 2-hour daily mandate he told her that he felt that special needs students should not sit for more than 5 minutes. (Tr. 162)

stated she was told by that he would not know what to do with a two-hour mandate. He then checked his schedule which only permitted him to come three times per week not 5 as mandated. (Tr. 163)

stated that despite the fact that could sit for 2 hours, enjoyed learning and was making progress, only wanted her to sit for 5 minutes at a time. They then discussed his ability to work with a touchscreen communication device, to which she was told that he was not comfortable working with one. (Tr. 164-165)

She declined his offer to come and work with due to his not being able to fill the 10-hour mandate and inability to work with a touch screen device. (Tr. 164)

Currently is receiving 10 hours of SEIT with , Speech 4 x45, OT and PT 3 x 45. (Tr. 167) notes that for a non-ambulatory, nonverbal child such as , having the right educator is crucial. She is learning to read and spell. Her device is the only way she can express herself which is life changing for someone who has no other way to express themselves.

concludes by stating the device has become life. She is learning so much and loves to learn. (Tr. 171-172)

The second witness to testify is , SEIT teacher for the past 3 years. For the 19-20 school-year she works with her 10 hours weekly. She describes as delightful, funny stubborn and notes that she loves to learn. (Tr. 180-181)

states amazes her in how much she has learned and is capable of learning. They work on everything from counting numbers, increasing vocabulary, answering questions…. anything that there is to teach she teaches. Anything that a student in the public school would learn like holidays, seasons she teaches (Tr. 182) At the beginning of the year they were identifying letters and they started with simple phonics and now is able to read words. (Tr. 184)

testifies once she is sure has mastered something she moves forward. She notes their library keeps growing and her vocabulary is tremendous. (Tr. 184) In Math at the beginning of the year she was able to identify numbers 1-10, now she recognizes 1-40 and with her device can count by 10” s. (Tr. 186-187)

describes what she is doing while working with in videos Exhibits M, N and O. She testifies all 3 videos were taken during the 19-20 school year. All depict the way is teaching utilizing her touch screen device. All confirm that is reading, learning and communicating with the use of the device.

believes that despite the fact that has many hours of related services she would benefit from an increase in SEIT. She states that if she was in school she would be receiving 4 hours of instruction and strongly believes that loves to learn, is learning and could handle an extra hour per day. She would like to see her receive 15 hours per week of SEIT. She believes part of the reason she has been so successful working with is because she has both a speech and special education background.in addition states that “clearly needs somebody who has experience using an augmentative communication device, 100 percent because if somebody doesn’t know how to use that, they’re not ever going to tap into her potential.” (Tr. 205-207)

states that although at June 2019 IEP meeting she recommended she receive 10 hours per week of SEIT; she saw a tremendous growth from September –December and now believes she could handle and would benefit from increased weekly hours. (Tr. 211-212)

The third witness to testify is , she provides Speech and Feeding Therapy to in her home. She describes as a happy girl who loves to learn. testifies that uses her device to communicate. She is able to answer questions and utilize her device to express herself. (Tr. 228-230)

In terms of her feeding, when she first started working with she was bottle fed. She uses a variety of tools such as straws to strengthen her oral musculature.

(Tr.233) She now demonstrates more strength than she did before and is able to bite down and is accepting of using different utensils. (Tr. 235)

testifies that mother reached out to her because she is a PROMPT trained speech therapist. PROMPT is an approach to facilitate motor speech planning using input, physically prompting a child’s face, jaw, lips, mouth using specific targets that are functional for the client to help her coordinate all the systems needed for verbalization and for speech.

explains that in addition to using her device to communicate she is trying to get her to utilize her voice. She states that has progressed and is much more vocal, uses her voice a lot and is using her breath to make sounds. (Tr. 234)

testifies she does not accept RSA’s and her rate is $122.50 per 45- minute session. She justifies her rate based upon her educational background and extensive and specialized training and certification. (Tr. 237)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Two purposes of the IDEA (20 U.S.C. sect. 1400-1482) are (1) to ensure that with disabilities have available to them a free appropriate public education (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. sect. 1400 (d) (1) (A) -(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Bd. of Educ. v. Rowley,

458 U.S. 176, 206-07 (1982).

A FAPE is offered to a student when (a) the Board of Education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits ( Rowley, 458 U.S. at 206-207; Cerra v. Pawling Cent.

Sch. Dist., 427 F. 3d 186, 192 (2d Cir 2005) ). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally in adequate under the IDEA. ( A.C. v. Bd. of Educ., 553 F. 3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F 3d 377, 381 ( 2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist. 2007 WL 465211, at 10 (S.D.N.Y. Feb 9, 2007) ).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the students’ needs (34 CFR 300.320 (a)(1); 8 NYCRR 200.4 (d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3,2008), establishes annual goals related to those needs (34 CFR 300.320 (a)(2); 8 NYCRR 200.4 (d)(2)(iii)), and provides for the use of appropriate special education services (34 CFR 300.320 (a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep't. of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for unilateral placement has the burden of proof regarding the appropriateness of such placement (educe. Law sect 4404 (l)(c); see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256 at *7 (S.D.N.Y. Aug. 27, 2010) ).

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F. 3d 60,66 (2nd Cir. 2000) (1982)). The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. sect. 1412 (a)(5)(A), 34 C. F.R. sect. 300.550 (b), 8 NYCRR sect. 200.6(a)(1))

It is noted that this is not a Burlington/Carter Case.

As a student with a disability, is entitled to receive a free, appropriate public education (“FAPE”) pursuant to the Individuals with Disabilities Education Improvement Act (“IDEA”). 20 U.S.C. § 1400, et. seq. To provide a FAPE, the district must create “…an educational program that is reasonably calculated to enable [ ] to receive educational benefits.” Endrew F. v. Douglas Cty. Sch. Dist, 137 S.Ct. 988, 995–96 (2017) (citation omitted).

As mother is seeking the continuation of her last agreed upon services, and not funding for a unilateral placement, the often-cited three-pronged Burlington-Carter analysis is inapplicable here. This is because the Burlington/Carter analysis is only applied in cases concerning public funding for tuition for a unilateral private school placement. See e.g., Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 369 (1985); Florence Cty Sch. Dist. Four v. Carter, 510 U.S. 7, 12-13 (1993). However, a parent’s decision to maintain their child’s last agreed upon program does not constitute a “unilateral” move by the parents. Bd. of Educ. of the City of N.Y. v. Ambach, 612 F. Supp. 230, 234 (E.D.N.Y. 1985). Thus, as mother is solely seeking to continue her last agreed upon SEIT and related services

…consideration of the second and third Burlington-Carter factors is wholly unnecessary because Plaintiffs are not seeking reimbursement for a unilateral placement secured during the pendency of this action.

On the contrary, it is undisputed that … SEIT and related services [have been provided] at [the district’s] expense pursuant to the

[IDEA]’s “stay put” provision…Because Plaintiffs are merely seeking to maintain the…services they are currently receiving at DOE’s expense pursuant to the [IDEA]’s pendency provisions, the Burlington-Carter test does not apply. M.N. v. N.Y.C. Dep’t of Educ., 700 F. Supp.2d 356, 368-69

(S.D.N.Y. 2010). (Ex. A)

Instead, the applicable standard when parents are seeking to continue their child’s last agreed upon recommendation is whether the district provided the student with a FAPE. M.N., 700 F. Supp.2d at 368-69. The district bears the burden of proof, by a preponderance of the evidence, in this matter. N.Y. EDUC. LAW § 4404(1)(c); see also M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 224-25 (2d Cir. 2012). Should the district fail to meet this burden, the IDEA grants Impartial Hearing Officers broad equitable powers to determine an appropriate remedy. 20 U.S.C. § 1415(i)(2)(C)(iii). Pursuant to the Impartial Hearing Request, the parent is seeking that I issue an

Order

finding that: (1) the district failed to offer FAPE for the 2019 2020 school year; (2) requires 15 hours, per week, of SEIT services, to be provided by ( ’s agency); (3) the district should continue to provide with the related services outlined in her June 2019 IEP; and (4) Speech should be provided at an enhanced rate of $112.50/45 minute sessions by .

Did the Home Instruction Program offered on the June 2019 IEP offer FAPE for the 2019-2020 school year?

A crucial factor in this matter is did the home Instructor sent by the DOE for the 2019-2020 schoolyear have the capabilities of implementing IEP? After reviewing all evidence submitted and listening to testimony I find the answer is NO! As such, I find that the district’s June 2019 recommendation for its Home Instruction program failed to provide with a FAPE.

testified that who is special education NYS licensed and certified and works strictly with alternate assessment students. (Tr. 114) He stated that he is familiar with IEP and believes has the experience and skill sets to address the goals on IEP. He continues he has worked with all kinds of kids, alternate assessment functioning at all different levels. (Tr.116)

During cross when was asked to review IEP that he stated he was familiar with; he discovered was not an alternately assessed student. (Tr.120) Clearly, he was not familiar with the students’ needs. His assertion that would have been appropriate to address ’s educational needs does not ring true.

In addition to the aforementioned credibly testifies that did not have time in his schedule to fill 10-hour mandate. (Tr. 163)

And most importantly all witnesses including the Districts stress the importance of having an instructor who has knowledge of how to use a touch screen device.

states that primary mode of communication was the Touch Chat Mini Speech Generating Device with Key Guard. She notes utilized that to answer questions and to display her knowledge of vocabulary. (Tr 84-85) She agrees that it would be important for to have access to this device as it is essentially her voice. (Tr. 87)

credibly testifies that when she discussed ’s ability to work with a touchscreen communication device, he informed her that he was not comfortable working with one. (Tr. 164-165)

As all witnesses testified to; touch screen device is “essentially her voice” and enables her to communicate and learn. Sending an instructor that does not have the ability to teach her with the use of her device is as good as not sending anyone at all.

All evidence submitted by the parents supports has made remarkable progress with her SEIT . Videos submitted into evidence Exhibits M, N and O depict the two of them working together and how it is a necessity for to utilize her touch screen device. The videos also depict how is able to learn words, answer questions and read a story with the use of her device.

, mother credibly testifies that for a non-ambulatory, nonverbal child such as , having the right educator is crucial. She is learning to read and spell. Her device is the only way she can express herself which is life changing for someone who has no other way to express themselves.

concludes by stating the device has become life. She is learning so much and loves to learn. (Tr. 171-172)

. believes part of the reason she has been so successful working with is because she has both a speech and special education background. She states that “clearly needs somebody who has experience using an augmentative communication device, 100 percent because if somebody doesn’t know how to use that, they’re not ever going to tap into her potential.” (Tr. 205-207)

When met with , he explained he had never used a device like and was only comfortable with a simpler picture exchange communication system (Tr. 163)

Clearly if was not comfortable working with communication device he would not be able to implement the IEP and provide with a FAPE.

Should there be an Increase in SEIT from 10 to 15 hours?

The Parents are seeking an increase in SEIT hours from 10 to 15 hours per week based upon testimony heard during the April 1, 2020 hearing. testified that despite the fact that has many hours of related services she would benefit from an increase in SEIT. She states that if she was in school she would be receiving 4 hours of instruction and strongly believes that loves to learn, is learning, and could handle an extra hour per day of instruction. (Tr. 205-207)

states that although at June 2019 IEP meeting she recommended she receive 10 hours per week of SEIT; she saw a tremendous growth from September –December and now believes she could handle and would benefit from increased weekly hours. (Tr. 211-212)

The district has objected to this request, as it is beyond the proposed resolution in the parents’ impartial hearing request (which asked for 10 hours of SEIT). (Ex. A-4; Tr. 250-55)

The district bears the burden of proof, by a preponderance of the evidence, in this matter. N.Y. EDUC. LAW § 4404(1)(c); see also M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 224-25 (2d Cir. 2012). Should the district fail to meet this burden, the IDEA grants Impartial Hearing Officers broad equitable powers to determine an appropriate remedy. 20 U.S.C. § 1415(i)(2)(C)(iii).

As the Impartial Hearing Officer in this matter I am granted broad discretionary powers however, there is also a standard of equitable fairness in that the DOE should have ample notice of the relief requested to enable them to present a case in response to the relief requested.

In this matter, there is no mention of an increase in SEIT hours for the 2019 2020 school year, until the April 1, 2020 hearing. testifies that from September –December there was a growth enabling to handle an increase. The Parents had months to amend their Due Process Request to seek an increase however they did not. The DOE should be notified in advance of relief the Parent is requesting and have ample opportunity to respond. By seeking such a large increase (50%) without providing notice to the DOE is unfair. To allow such tactics is unfair and unequitable.

Further in response to assertion that if was in school she would receive 4 hours of instruction it is noted that 4 hours of school instruction does not provide the same intensity as 1:1 instruction.

For the aforementioned reasons, the request for an increase in services from 10-15 hours per week is DENIED.

Should the District continue to provide with her Related services pursuant to the June 18 IEP including Speech at an enhanced rate?

The DOE is not disputing that , should continue to receive her mandated related services of Physical Therapy 3 x 45 1:1, Occupational Therapy 3 x 45 1:1 and Speech and Language Therapy 4 x45 1:1. The DOE is disputing the rate of service for the Speech and Language provider. Tr. 255-257)

Both parties were requested to submit written briefs, only the Parent did as the districts representative chose to solely do an oral argument. After reviewing the Parents brief I concur with the below statements made regarding the request for speech and language therapy to be provided at an enhanced rate and will therefore utilize that portion of the brief regarding the same in my decision as follows:

At the time of filing, was receiving Speech from a provider who accepted a

RSA. (T. 168) As such, this is referenced in the proposed resolution. (Ex. A-4) However, provider was pregnant and unable to continue to work with her. (T. 168) then had to find another provider for ; she found

, who was willing to work with the district, but not through an RSA as this would not cover her rate ($150/hour or $112.50/45 minutes). (Ex. K; T. 170, 237, 238-39)

The district argues it was not on notice of the request for an enhanced rate for Speech prior to ’s testimony. While it was not requested in the parent’s proposed resolution, could not have known in July that prior Speech provider would quit in October. (Ex. A; T. 168) See supra p.

18. This issue was then discussed at the very start of the substantive hearing on the merits. (T. 42-3) Moreover, the district’s own Impartial Hearing Implementation Unit approved payment for ’s services during the pendency of this proceeding. (T. 244) Finally, the district’s own evidence demonstrates that it knew was not receiving Speech at its standard rate during the 1 month portion of the2019-2020 school year. Separate RSAs were issued for OT, PT, and Speech, for the summer of 2019 and then for the remainder of the 2019-2020 school year, related to this impartial hearing. (Ex. 1-1, 1-2) The summer RSAs for all three were approved on September 27, 2019. (Ex. 1-1) For the remainder of the year, RSAs for OT and PT were approved on December 6, 2020; a Speech RSA, however, was not. (Ex. 1-1) Application of a Student with a Disability, Appeal No. 19-112 (“[The district’s obligation to implement [a related service] could not be deemed satisfied until [the RSA] was executed and services actually delivered”).

Thus, the district was well aware that was not receiving Speech from a provider who accepted a RSA (and, in fact, required Speech from a provider at an “enhanced rate”). Yet, despite its objections, it has provided no evidence of an available provider at the standard rate; it simply contests ’s without citing cause. (See record generally) However, the appropriateness of a rate charged should only be considered when two factors are present: first, this issue is raised by the district; and second, the record supports that the chosen special education provider “has artificially inflated its tuition” or costs. See e.g. Mr. & Mrs. A. v. N.Y.C. Dep't of Educ., 769 F. Supp.2d 403, 429–30 (S.D.N.Y. 2011); see also, Application ofa Student with a Disability, Appeal No. 11-045; Application of a Child with a Disability, Appeal No. 06-058 (a speech provider’s rate cannot be found to be higher than average absent evidence to support this conclusion).

Here, there is no evidence that has artificially inflated her costs, or that her costs are otherwise unreasonable. Rather, her rates are based on her experience and specialized training, such as in PROMPT therapy. (Ex H; T. 225, 227, 237, 242-45) Notably, this methodology has specifically been recommended to be used with . (Ex. I-3, 11-3) Further, has made notably progress with since beginning their sessions in October 2019. (See e.g. Ex. H; T. 234-35) Thus, there is no reason to deny funding for Speech from at her full rate.

ORDER

(1) The DOE failed to offer ’ FAPE for the 2019-2020 school year;

(2) The DOE will provide and fund at their sole expense 10 hours, per week, of SEIT services, to be provided by

(3) The DOE will continue to provide and fund at their sole expense the related services outlined in her June 2019 IEP, more particularly

i. Physical Therapy 3x 45 1:1

ii. Occupational Therapy 3 x 45 1:1, iii. Speech and Language Therapy 4 x 45 1:1 to be provided at an enhanced rate of $112.50/45 minute sessions.

Dated May 29, 2020

__________________________________________

Tina Millman Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date ofthis 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.

Ifeither plans to appeal the decision, a notice ofintention 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 parties' petition 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 ofintention to seek review; notice ofrequest for review, request for review, and proofofservice 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 ofprocedure 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

EVIDENCE ENTERED INTO THE RECORD

DOE EXHIBITS

Date Name of Documents # of

Exhibits Pages

1 Various Dates SESIS Events Log 6

2 2/1/2019 SEIT Progress Report 1

3 4/2019 Occupational Therapy Progress Report 4

4 4/2019 Physical Therapy Progress Report 3

5 4/10/2019 Consent for Additional Testing 1

6 4/10/2019 Social History Update 2

7 4/12/2019 Letter from Doctor 1

8 4/13/2019 Speech and Language Therapy Progress Report 4

9 4/29/2019 Physical Examination Form 3

10 5/7/2019 Vineland-3 2

11 5/13/2019 Letter from Doctor 4

12 5/22/2019 Letter from Doctor 1

13 5/31/2019 Home Instruction Documentation and Fax Verification 4

14 6/2019 Physical Therapy Progress Report 3

15 6/13/2019 Meeting Notice Committee on Special Education 3

16 6/18/2019 IEP w/ Attendance Page 22

17 6/26/2019 Prior Written Notice (Notice of Recommendation) 4

18 7/2/2019 Refusal of Home Instruction Letter Signed by Parent 1

PARENTS EXHIBITS

Exhibit Date Title Number of Pages

A 07/01/2019 Impartial Hearing Request 4

B 04/09/2018 Individualized Education Program 17

C 06/18/2019 Individualized Education Program 21

D 05/1/2019- E-mails Between and 20

05/2/2019 with Attachments

E November 2019 Physical Therapy Progress Report 2

F 11/30/2019 Occupational Therapy Progress Report 3

G 11/1/2019 SEIT Progress Report 1

H 01/04/2020 Quarterly Review Speech Progress 4

Report 1

I 01/16/2020 Letter from , M.D., 4

Developmental Pediatrician

J Undated Letter from , Council 1

Member,

K 01/23/2020 Speech-Language Therapy Provider’s 1

Statement of Anticipated Costs

L 06/23/2019 E-mails Between and 1

M Undated Video of ’ Working on N/A

Encoding Skills on AAC Device with SEIT

N Undated Video of ’ Completing N/A

Reading Activity on AAC Device with SEIT

O Undated Video of ’ Completing N/A

Matching Activity with SEIT on AAC Device