Impartial Hearing Decision

DECISION

ORDER

Case Number: 189990

Student’s Name: Redacted

Hearing Requested By: Parent(s)

Hearing Officer: Martin J. Kehoe UI, Esq.

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (THO) 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(s) as Parent(s) and the student will be referred to as Student. A pendency hearing was held on November 27, 2019, and a hearing was held on March 24, 2020, May 18, 2020 and June 3, 2020. The Parent filed a complaint notice on October 6, 2019.

Parent’s Position

In the complaint notice, the Parent alleged the District did not provide a Free Appropriate Public Education (FAPE) for the 2019-2020 school year. The Parent is seeking payment for 4 periods of SETSS per week at an enhanced rate for the 2019-2020 school year, awarding of all related services on the last agreed upon Individual Education Services Program (IESP), and Related Service Authorizations (RSAs) if required (Ex. A).

District’s Position

The District did not submit any evidence, call any witnesses, or cross examine the Parent’s witnesses.

Background of the Case

The Student has a disability classification of speech and language impairment (Ex. B). The IESP, dated March 27, 2018, the Committee on Special Education recommended 4 periods per week of SETSS (group) and for the District to provide Speech and Language therapy 3x30 per week, 1:1; Occupational Therapy 3x30 per week, 1:1 (Ex. B). The Parent contacted 10 SETSS providers; all of whom were unavailable at the District rate (Ex. D).

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: e (A) have been provided at public expense, under public supervision and direction, and without charge, e (B) meet the standards of the state educational agency, e (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and e (D) are provided in conformity with the individualized education program required under § 614(d) ofthis title. 20 U.S.C. § 601(9).! A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and schoo] 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 JEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the schoo! 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 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). Education Law section 3602-c, as amended by Chapter 378 of the Laws of 2007, establishes New York State’s (NYS) requirements relating to the provision of special education to students with disabilities enrolled in nonpublic elementary and secondary schools by their parents. Under the provisions of section 3602-c, students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an individualized education services program (IESP) from the public school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them. Federal regulation (34 Code of Federal Regulations (CFR) section 300.130) defines parentally placed private (or nonpublic) school children with disabilities as "children with disabilities enrolled by their parents in private, including religious, schools or facilities that meet the definition of elementary or secondary school, other than children with disabilities covered under 34 CFR 300.145-147 — “Placement of children by parents if free appropriate public education (FAPE) is at issue."

Analysis

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). 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 in this type of case 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. In this 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 1 Tn overruling the District objection to the instant disposition, | remain focused on the fact that the Student has been denied a FAPE for a long time during a 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 (2019).

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.” 1 deem this to be a reasonable disposition of the instant dispute. Therefore, I hereby direct that the District fund: e 4 periods per week of SETSS (group) at an enhanced market rate to be determined by the “implementation unit” upon the presentation of invoices for services rendered during the 2019-2020 school year; and, e For the District to provide related service authorizations to the extent that there are outstanding claims for service within the broad outline of the 2019- 2020 school year; to wit, Speech and Language therapy 3x30, per week 1:1; and Occupational Therapy 3x30 per week, 1:1. ® Dated: June 12, 2020 So Ordered, * 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 mtention 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.