New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 190501

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearings: January 17, 2020

February 13, 2020

April 22, 2020

May 20, 2020

July 7, 2020

July 8, 2020

July 21, 2020

July 28, 2020

Record Close Date: September 7, 2020

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 17, 2020

For the Student:

Advocate

For the Department of Education:

District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 13, 2020

For the Student:

Advocate (via telephone)

For the Department of Education:

District Representative (via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 22, 2020

For the Student:

Advocate (via telephone)

For the Department of Education:

District Representative (via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 20, 2020

For the Student:

Advocate (via telephone)

For the Department of Education:

District Representative (via telephone)

Ph.D. School Psychologist (via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 7, 2020

For the Student:

Advocate (via telephone)

For the Department of Education:

District Representative (via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 8, 2020

For the Student:

Advocate (via telephone)

Parent (via telephone)

For the Department of Education:

District Representative (via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 21, 2020

For the Student:

Advocate (via telephone)

Parent (via telephone)

For the Department of Education:

District Representative (via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 28, 2020

For the Student:

Advocate (via telephone)

Parent (via telephone)

For the Department of Education:

District Representative (via telephone)

Introduction:

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by and , the Parents (“‘Parents’’) on behalf of , the student (“Student”), through their advocate , by filing a Due Process Complaint dated October 29, 2019 with the District.

The Parents maintain that as a matter of law, their son is entitled to an appropriate special education pursuant to both the IDEA and Section 504 of the Rehabilitation Act and Article 89 of the New York Education Law. The Parents are alleging that their son, was denied service under New York State Education Law Section 3602-c for the 2017-18 school year (subject to the Statute of Limitations), the 2018-19 school year, and the 2019-2020 school year. The Parents are seeking compensatory services for said years for Occupational Therapy and SETSS.

There were eight days of hearings in this matter. Hearings were conducted on January 17, February13, April 22, May 20, July 7, July 8, July 21 and July 28, 2020. Extensions were granted in this case making the final compliance date September 4, 2020.'^[1] A list of Exhibits is attached as Exhibit A. The Parents, the District, and the Impartial Hearing Officer submitted exhibits.

Background

This case involved a — year old student. During the 2019-2020 school year, attended the where the Student was unilaterally placed by the Parents.

With respect to the 2019-20 school year, an Individualized Education Service Program (“IESP”) was developed on February 13, 2019. Pursuant to the February 13th IESP, the following recommendations were made:

2. Speech-Language Therapy, one time per week for 30 minutes each time, 1:1;

3. Speech-Language Therapy, two time per week for 30 minutes each time, group service; and

4. Occupational Therapy, two times per week for 30 minutes each time, 1:1.

1 The Parties moved to extend the compliance date in this matter several times during the course of the hearing. In considering these requests, | weighed the cumulative impact of the relevant factors and found that the requests were in accordance with the requirements of due process. Accordingly requests for extensions of the case compliance date were granted. The Student was also provided with a fulltime paraprofessional for behavioral support in the classroom, 1:1. P-D.

With respect to the 2018-19 school year an IESP was developed on July 31, 2018. Pursuant to the July 31“ IESP, the following recommendations were made:

2. Speech-Language Therapy, one time per week for 30 minutes each time, 1:1;

3. Speech-Language Therapy, two times per week for 30 minutes each time, group service; and

4. Occupational Therapy, two times per week for 30 minutes each time, 1:1. P-I.

With respect to the 2017-18 school year, neither party had access to the IESP for said year, however, RSAs were prepared by the District and given to the Parent for five hours per week of SETSS, group service (P-F) and two thirty minutes sessions per week of Occupational Therapy, 1:1. P-G.

A pendency hearing took place on January 17, 2020. A pendency order was issued on February 8, 2020. It was determined that for purposes of pendency, in accordance with the IESP developed by the CSE dated February 13, 2109 (P-D), would continue to receive the following: SETSS, five times per week for one period each time, group service; Speech-Language Therapy, two times per week for 30 minutes each time, group service; Speech-Language Therapy, one time per week for 30 minutes each time, 1:1; and Occupational Therapy, two times per week for 30 minutes each time, 1:1. The Student would also have a paraprofessional for behavior support in the classroom, 1:1, fulltime, daily. P-B.

The Parents filed a Due Process Complaint on October 29, 2019. P-A. I was appointed as an Impartial Hearing Officer on November 1, 2019.

Position of the Parties

District’s Case

The District called Dr. and placed seven documents in evidence. D-1—D-7. Dr. is a school psychologist with the Department of Education. This year she works to coordinate resolution agreements for the CSE. They flag cases that they believe are able to be resolved quickly in order to implement services for the students as soon as possible. Tr. 43. Prior to this year, she would conduct psychoeducational evaluations for public and private school students, create IEPs and IESPs, etc.

She is familiar with the Student through his paperwork. Tr. 43. She received the Student’s Due Process Complaint. Tr. 45. She reached out to the advocate to offer a resolution agreement in lieu of continuing to a full impartial hearing. Tr. 46. They were not able to resolve the matter at a rate that was acceptable to the District. Tr. 47. Dr. stated that they were offering a rate of $110, however, the Parent indicated that the agency would only accept $135. Tr. 47. Dr. believes there was an agency in place and the Student was receiving SETSS. If the Parent would switch providers and use someone at the enhanced rate of $110, the District would be willing and available to work. Tr. 56.

On cross, Dr. was not familiar with whether the team had made a SETSS provider available to the Student prior to the start of the 2019-20 school year. Tr. 53. Dr. stated that when a child is in a private school, their school often has providers or the District provides the parent with a list of providers. Tr. 55. The list has approximately 300 to 400 providers divided into different regions, neighborhoods and licenses. Tr. 55. She is aware of the burden of the District to furnish a child with a SETSS provider, however, when a child is in a private school, they must be made aware that the parent cannot find a provider. Tr. 60- 61. The resolution session was not held within 30 days following the Parents’ filing of the Due Process Complaint. Tr. 63. She stated that during resolution one of the agencies that was available to service the Student was from , however, she did not reach out to the agency specifically for the Student. She just reached out to determine whether they had availability to work with students from the District. Tr. 64.

Parents’ Case

The Parents called one witness, the mother (“Parent’’) and placed twelve documents in evidence. P-A—P-M. The Parent testified that the Student has processing issues and attentional issues. Tr. 149. On the most recent IESP dated February 13, 2019, the Student was provided with five hours of SETSS, Speech, Occupational Therapy and a fulltime para. The Speech is to address his processing issues and the Occupational Therapy is to teach him how to maintain attention and stay on task. The paraprofessional is also there to deal with his attentional issues and help him maintain focus in the classroom. Tr. 150.

The Parent testified that it was hard to find a SETSS provider and they had help from his school, , and he received SETSS support until the Covid-19 matter hit. Tr. 151. The name of the agency is . Tr. 151. It was also difficult finding a SETSS provider last year. The provider for the 2018-19 school year started late and then she didn’t come back after Christmas and it took several months to find another provider. Tr. 152. The school provided the Student with the provider. Tr. 152. The Parent would try to get a provider before the private school did, but was never able to get one. The District gave her a list and she made calls. Tr. 153. She was never able to obtain services right when school started. Tr. 154. She contacted ; and regarding getting the forms she needed to obtain services. Tr. 155. She was never given an Occupational therapist or SETSS provider from the District. Tr. 156.

For the 2019-20 school year, the Student received SETSS services from from . Tr. 158. After the Due Process Complaint was filed, she was still providing service to the Student. The Parent did not hear from the District in order to place with a District provider. Tr. 158. She never received a provider as a result of the resolution session. Tr. 159. The Parent found Ms. to be very effective and informative. Tr. 160-161. She goes into the classroom. Tr. 162. There was no Occupational Therapy providers in place for the 2019-20 school year. She received an RSA but was unable to locate a provider. Tr. 162.

For the 2019-20 school year, the Parent testified that the SETSS provider usually saw five hours per week unless she was sick or on vacation, and always texted her when she wasn’t going to be in. Tr. 165-166. For the 2018-19 school year, the SETSS provider, Ms. kept in touch, but, there was a different provider for the second part of the year and she wasn’t very communicative. Tr. 166. For the 2017-18 school year, the SETSS provider was on and off and the Parent requested make up summer services from the District and received them because so much time had been missed. Tr. 167.

Based on a RSA dated September 26, 2017, the SETSS provider was . P-

F. For summer 2018, there was a SETSS provider named to make up for services he did not receive during the year for a full six weeks. Tr. 171; P-F; P-G. Although there were RSAs, he has never received Occupational Therapy services since the Parent could not locate a provider. Tr. 177.

With respect to the 2018-19 school year, the provider started late in the school year because they couldn’t find a provider. There was one there for a few days, however, she wasn’t certified for his grade level, and then they located, Ms. , who then provided service. Tr.

180. The SETSS provider was from the same agency as the Speech provider.

Overall, the Parent believes was deprived of educational benefit because he missed so many SETSS and Occupational Therapy sessions. Tr. 183. Specifically, she feels that he would have been on a better level with his reading comprehension and would be able to maintain his focus and have better organizational skills with the Occupational Therapy and SETSS. Tr. 184-185.

Findings

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1 ][A]; Educ. Law § 4402[2][a],[b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a],[c], 300.138[b]).

However, under State law, parents of a New York State resident student with a disability who is placed in a nonpublic school and who seeks to obtain educational “services” for his or her child may file a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).^[2] “Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent” (Educ. Law § 3602-c[2][a]. In such circumstances, the district of location’s CSE must review the request for services and “develop and [I[ESP] for the student based on the student’s individual needs in the same manner and with the same contents as an [IEP]” (Educ. Law § 3602-c[2][b][1]). The CSE must “assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district” (id.).^[3] Additionally, unlike the provisions of the IDEA, section 3602-c provides that a parent may seek review of the recommendations of the CSE pursuant to the impartial hearing and State-level review provisions of Education Law § 4404 (id.). See Application of the Board Of Educ., Appeal No. 18-088

Clearly, it is the District’s statutory obligation to implement the Student’s mandates as set forth on the Student’s IESPs (see Educ. Law 3602-c [2][a]). Based upon the closing statement of the District, the District stated that they are not arguing with the SETSS services that were missed during the 2017-18 school year (subject to the Statute of Limitations), 2018-19 school year, and 2019-20 school year (as a result of Covid-19). Clearly for the 2018-19 school year, based on the July 31, 2018 IESP (P-I), the Student was mandated to receive five periods of SETSS per week, and for the 2019-20 school year, based on the February 13, 2019 IESP (P-B), the Student was also mandated to receive five periods of SETSS per week. With respect to the 2017-18 school year, although an IESP was not located, the RSA for that year clearly indicates that the Student was mandated to receive five periods of SETSS per week. P-F. As a result of a subpoena (IHO-I; IHO-ID), the District provided the Parent, with the hours that the providers worked during the 2017-18, 2018-19 and 2019-20 school years. P-M. The District is in agreement that these services were not provided to the Student. With respect to the 2017-18 and 2018-19 school years, the District representative stated that “it is the District’s position that although some sessions were missed---and we’re not arguing the amount of sessions that were missed...It is our position, since the District assigned an actual provider to the student for the ‘17/718 for SETSS services and for ‘18/’19 also for SETSS services, the student is not entitled for any compensatory services for SETSS for those school years because services were actually rendered and providers were assigned. Therefore, the District fulfilled its responsibilities towards

(id.). the parent for those school years regarding the SETSS services.” Tr. 263-264.With respect to the 2019-20 school year, the District ‘s position was that the sessions were missed as a result of Covid-19 and they should not be compensated because Covid-19 affected all students all over the city and also those services were funded by pendency until the end of the school year, and there was no proof that the 65 periods requested were not provided remotely. Tr. 265. I credit the Affidavit from Mr. from the agency in this regard which stated that “[ —_—‘s has not received services remotely since the school closures.” P-E. With respect to the gaps in services for the 2017-18 and 2018-19 school year, a District can not absolve themselves of their statutory obligation to implement services simply by stating that there was a provider in place. With respect to the 2019-20 school year, for the period that required remote services as a result of Covid-19, the District was obligated under pendency to provide SETSS services and did not provide same either remotely or otherwise. The District has the obligation to provide services to the Student in conformity with his IESPs. (Educ. Law § 3602-c 2][a], [b][1]; see 20 U.S.C. § 1401[a][D]; 34 CFR 300.17 d]; see also 20 U.S.C. § 1414[d]; 34 CFR 300.320.

With respect to Occupational Therapy, the District stated that they are not arguing that Occupational Therapy was not provided to the Student for the 2018-19 school year. Clearly for the 2018-19 school year, the July 31, 2018 IESP (P-I) provided that the Student was mandated to receive Occupational Therapy, two times per week for 30 minutes each time, 1:1 and did not receive any Occupational Therapy, and for the 2019-20 school year, based on the February 13, 2019 IESP (P-B), the Student was also mandated to receive Occupational Therapy, two times per week for 30 minutes each time, 1:1, and did not receive same. With respect to the 2017-18 school year, although an IESP was not located, the RSA for that year clearly indicates that the Student was mandated to receive two periods of Occupational Therapy for 30 minutes each time per week. P-G. The District representative stated that “they are not arguing that occupational therapy was not provided to[ —_] during ‘18/’19 school year.” Tr. 266. With respect to the 2017-18 school year, the District stated that they have no proof that the services were recommended for the 2017-18 school year. Based on the fact that the District issued RSAs for Occupational Therapy for the 2017-18 school year, and based on the Parent’s testimony in this regard, it is my position that these services were mandated by an IESP and should be covered after October 29, 2017 (as a consequence of the Statute of Limitations). The District’s position with respect to the 2019-20 school year was that the Parent already had a pendency order and the means of funding, and if they did not find a provider, the District does not have to compensate the Parent for those missed services. The Parent testified to her attempts to find an Occupational therapist for all three years even reaching out to members of the CSE for help. It is the District’s responsibility to find a provider for the Student for the school years in question and they did not do so. In this regard, the District agreed to pay for compensatory services for the 2018-19 school year, however did not agree to fund them for the 2017-18 and 2019-20 school years. The District can not absolve itself from responsibility for the other years in question. Application for a Student with a Disability, Appeal No. 19-130.

Based upon their actions, in terms of equitable considerations, I find that the Parent cooperated with the District and analysis of equitable considerations offers no basis to rule against them.

With respect to Parent’s request for compensatory education services, compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]). Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of ti me (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]; Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]). Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; Student X. v. New York City Dep't of Educ., 2008 WL 4890440, at *24 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at *12-*13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]). Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13-

226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]). In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[alppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Puyallup, 31 F.3d at 1497 ["There is no obligation to provide a day-for day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

Where there has been a violation of FAPE, hearing officers have broad authority to grant such relief as they deem appropriate, including compensatory education. 20 U.S.C. 1412 (a)(1), 1415G)(2)(C) (ii), 34 C.F.R. 300.51 (c)(5); P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). A hearing officer should thus award compensatory education in the form of education or services where such an award is necessary to make up for a FAPE deprivation.

P., 546 F. 3d at 123 (citation omitted). In evaluating a claim for compensatory education, a hearing officer must engage in a fact-specific inquiry to fashion an award that is “reasonably calculated to provide educational benefits that likely would have accrued from...services the school district should have supplied in the first place.” Reid. v. Dist. Of Columbia, 401 F.3d 516, 524 (D.C. Cir 2005).

Specifically, in connection with the 2019-20 school year, in Application for a Student with a Disability, Appeal No. 19-130, it states that:

The Second Circuit has held that where a district fails to implement a student's pendency placement, students should receive the pendency services to which they were entitled as a compensatory remedy (E. Lyme, 790 F.3d at 456 [directing full reimbursement for unimplemented pendency services awarded because less than complete reimbursement for missed pendency services "would undermine the stay-put provision by giving the agency an incentive to ignore the stay-put obligation"]; see Student X, 2008 WL 4890440, at *25, *26 [ordering services that the district failed to implement under pendency awarded as compensatory education services where district "disregarded the ‘automatic injunction’ and ‘absolute rule in favor of the status quo’ mandated by the [IDEA] and wrongfully terminated [the student's] at-home services" [internal citations omitted])

The parties agree that 91 sessions of SETSS were not provided for the 2017-18 school year (during the period covered by the Statute of Limitations) and 138 sessions of SETSS were not provided for the 2018-19 school year. The District had a responsibility to meet this mandate and did not. For the 2019-20 school year, the parties also agree that the Student was mandated to receive SETSS services and did not receive 65 sessions due to Covid-19. The District has a responsibility to meet this mandate as well. There was a Pendency Order dated February 8, 2020 providing for the implementation of SETSS services for the 2019-20 school year beginning with the date of the filing of the Due Process Complaint. Clearly, the District has records regarding vendor history (P-K; P-L; P-M) and are aware of what services were provided and paid for and what services were not

With respect to Occupational Therapy, the Student was mandated to receive Occupational Therapy for the 2017-18, 2018-19 and 2019-20 school years. The District had a responsibility to meet these mandates and did not. The District agreed that Occupational Therapy was not provided to the Student for the 2018-19 and 2019-20 school years. Although the District states that they have no proof that Occupational Therapy sessions were recommended for the 2017-18 school year, there is an RSA in evidence with respect to Occupational Therapy for the 2017-18 school year, as well as credible testimony form the Parent. P-G. The parties are in agreement that 80 sessions of Occupational Therapy were not provided for each of the 2018-19 and 2019-20 school years. Based on the Parents’ calculations for the 2017-18 school year (during the period covered by the Statute of Limitations), did not receive 64 sessions of Occupational Therapy for the 2017-18 school year.

The Parent testified to the child’s need for the Occupational Therapy to support the Student’s executive functioning and organizational skills as well as attention and focus. With respect to SETSS, there was also testimony that services are needed to provide him with the support he needs to address his learning issues and provide him with educational benefit.

Accordingly, under State law, the Student is afforded the same protections as a public school student on an equitable basis, therefore, I find the District failed to fully implement the Student’s IESPs for the 2017-18 (during the period covered by the Statute of Limitations), 2018-

19 school year, and 2019-20 school year, and, accordingly is not in compliance under State law for said years.

ORDER

Based upon the foregoing, it is hereby

ORDERED, that

1. The Student shall receive funding for up to 294 hours of compensatory makeup

SETSS services (91 hours for the 2017-18 school year; 138 hours for the 2018-19 school year; and 65 hours for the 2019-20 school year), by an appropriate certified special education provider, chosen by the Parent, at an amount not to exceed the market rate for such services. The services shall be funded upon proof that the services were provided. The makeup sessions must be completed within three years of the date of this Order.

2. The Student shall receive funding for up to 224 thirty minute sessions of compensatory makeup Occupational Therapy (64 sessions for the 2017-18 school year; 80 sessions for the 2018-19 school year; and 80 sessions for the 2019-20 school year), by an appropriate certified Occupational therapist, chosen by the Parent, at an amount not to exceed the market rate for such services. The services shall be funded upon proof that the services were provided. The makeup sessions must be completed within three years of the date of this Order.

Dated: September 17, 2020

tlise

B. Kestenbaum

Elise B. Kestenbaum, Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the 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 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 serviced upon opposing part 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 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 and model forms are available at: www.sro.nysed.gov/appeals.htm.

Appendix A Evidence

District’s Exhibits

No. Date Document Pages

1 02/13/19 DOE IESP 11

2 02/01/19 Meeting Notice 2

3 undated CSE Minutes 1

4 05/23/18 Psychoeducational Report 4

5 01/08/19 Classroom Observation 1

6 12/10/18 SETSS Authorization Signed 1

7 06/23/18 SETSS Authorization Signed 1 Parent’s Exhibits No. Date Document Pages

A 10/29/19 Impartial Hearing Request 8

B 02/13/19 CSE IEP 2019-2020 13

C 10/08/19 Call Log 1

D 02/11/2020- Email Correspondence Regarding

02/19/2020 Settlement Agreement 3

E 06/30/2020 Provider Affidavit 1

F 09/02/2017- School Year 2017-2018-SETSS

06/13/2018 RSAs 3

G 09/13/2017 School Year 2017-2018-OT RSAs 3

H 07/23/2016- Email to District 2

07/26/2016

I 07/31/2018 CSE IESP 2018-2019 9

J 12/10/2018 School Year 2018-2019-SETSS RSAs

K 09/07/2017- SETSS Billing School Year 2017-2018 3

08/29/2018

L 11/13/2018- SETSS Billing School Year 2018-2019 2

04/30/2019

M 12/02/2015- Vendor History Report for 03/11/2020 10

THO’s Exhibits

No. Date Document Pages

I undated Subpoena 1

II May 20, 2020 Subpoena 1

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Footnotes

[1] SETSS, five times per week for one period each time, group service;

[2] State law provides that “services” includes “education for students with disabilities,” which means “special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)] (Educ. Law § 3602-c[1][a],[d]).

[3] State guidance explains that providing services on an “equitable basis” means that “special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as comparted to other students with disabilities attending public or nonpublic schools located within the school district’ (“Chapter 378 of the Laws of 2007 — Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c,” Attachment 1 at p. 11, VESID Mem. [Sept. 2007], available at http://www.p12.nysed.gov/specialized/publications/policy/nonpublic907.pdf). The guidance document further provides that “parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to is public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program”