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DECISION ORDER Case Number: , 190615 Student’s Name: Redacted Hearing Requested By: Parents Hearing Officer: Martin J. Kehoe III, Esq.
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). ' “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. 20U.S.C. § 601(26). 3
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
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 decisions, is adept at identifying providers without issue. In effect that unit is “making the market” for enhanced rate services.* I hereby direct that the District fund: 5 periods of SETSS per week, Direct, group, for the entirety of the 2019-2020 School Year upon presentation of invoices for same at a rate to be determined by the District’s “implementation unit” in consultation with the providers and/or their agents; and further That the District provide Related Service Authorizations for Speech and Language 2 times per week 30 minutes group (to the extent that there exist outstanding invoices) Dated: August 14, 2020 So Ordered, Maftin J KehoetlI sq. Impartial Hearing Officer 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 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 impartialhearing 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). 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.
IMPARTIAL HEARING OFFICER In the Matter of: (Name of Student) Hearing Dates: 12/10/19;12/17/19;7/22/20;8/14/20 Case Number; 190615 L, Martin Kehoe , Impartial Hearing Officer in this matter DO HEREBY CERTIFY that the attached Evidence and attached Index of Exhibits itemize the entire record before me in the above entitled matter as of this date. | FURTHER CERTIFY that the materials submitted herewith are either the original or true copy of the original documents submitted jn this matter. /} 2; S| iH 2020)[fv ff fF as Signature of Impartidl Hearing Officer Date Signed Comments/Notes:
Case Number/Name: 190615/ Hearing Date August 14, 2020 Parent Exhibits A 11/2/19 3/7/18 9/1/19 7/22/20 8/11/20 Due Process Request IESP SETSS Authorization Form Affidavit regarding provision of SETSS List of provider’s certificates 14