Impartial Hearing Decision

Finding of Fact and Decision Case Number: Student’s Name: Hearing Requested By: Hearing Officer: Actual Record Close Date: 190629 Parent Martin J. Kehoe III, Esq. October 5", 2020

DECISION ORDER Case Number: 190629 Student’s Name: Hearing Requested By: Parents Hearing Officer: , Martin J. Kehoe III, Esq.

Introduction

This document constitutes the Decision and Order of the undersi gned, 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 December 10, 2019; March 24, 2020; May 18, 2020; June 17, 2020; and June 30, 2020. I issued a pendency order on December 18, 2019, for 3 periods of SETSS Direct- Group/week; 1:1 Occupational Therapy 3x30 per week; 1:1 Speech Language Therapy 2x30 per week; and 1:1 Counseling 1x30 per week. Said order was effective on November 2, 2019.

Parents’ Position

In the complaint notice, dated November 2, 2019, the Parents alleged that the District failed to provide a Free Appropriate Public Education (FAPE) for the 2019-2020 school year. The Parents were seeking payment for eight periods of individual special education teacher support services (SETSS) at an enhanced rate for the entire 2019-2020 school year, provision of all related services on the Student’s Individual Education Program (IEP), and Related Service Authorizations (RSAs) if required (Ex. A). During the hearing, the Parents changed their request to five periods of SETSS (T. 53).

District’s Position

The District did not submit any evidence or call any witnesses. It was their position that they agreed with the services recommended on the Student’s last IEP, dated March 29, 2017, but did not agree with the additional services of eight periods of SETSS the Parents were seeking or with the enhanced rate. They assert that the Parents should have requested a re-evaluation to determine if the Student needed more services (T. 38-39).

Background of the Case

The Student has a disability classification of speech or language impairment (Ex. B). The Student was in third grade during the 2019-2020 school year. She had a functional level in math of second grade and a functional level of in reading of first grade. The Student’s decoding ability and comprehension were on the first-grade level. (Ex. E). The individualized educational service plan (ESP), dated March 29, 2017 recommended: group SETSS three times per week; 1:1 speech language therapy 230; 1:1 occupational therapy 3x30; and 1:1 counseling 1x30 (Ex. B). The Student was issued an authorization by the District for 108 hours of SETSS for the 2019-2020 school year (Ex. F). The Parent (Mother) contacted 10 SETSS providers. Six were not available; three providers said it was too far; and one provider could not work (Ex. D). The Student’s SETSS Provider recommended that the Student’s SETSS be provided on an individual basis and recommended an increase of sessions (Ex. E). The SETSS Provider testified that she provided SETSS to the Student for five hours per week at a rate of $175 per hour (T. 46, 53). She saw the Student individually and said that the Student can’t work in a group (T. 3

54). She said that she changed the number of hours after speaking to the Student’s previous provider, the teacher and the mother (T. 46 — 47). According SETSS Provider, the Student “is an extremely, extremely weak child in all areas. Especially her reading... and fluency.” (T. 47). She added that the Student has difficulty focusing “so everything takes double the amount of time to teach her.” (T. 47). She said the Student also has difficulty with math, writing, and behavior (T. 48). She said that she used the Wilson reading program with the Student (T. 48). She also used manipulatives and activities with the Student (T. 57). The SETSS Provider said she paid for a Wilson supervisor to observe her ten times at a rate of $150 each time (T. 58). The SETSS Provider is certified by New York State in special education (T. 61). When asked if the Student belongs in a general education classroom, she said “yes”, because she has many friends, “is very social”, and that it is possible for a SETSS provider to bring her to grade level (T. 49 — 50). After schools were closed because of the coronavirus, the SETSS Provider provided services remotely through Zoom for an hour a day (T. 66). The SETSS Provider testified that she submitted invoices for payment under the pendency order in April (T. 72), but was not paid (T. 72 — 73) because the District needed her to resubmit forms (T. 74). The SETSS Provider testified that the, District scheduled a new CSE meeting for the Student for the same week or the following week after the June 17, 2020 hearing date (T. 78).

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)(I). “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). 1 “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 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 recerve 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. 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). 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 case before me, where the parties agree regarding some 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 City2, 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.3 Here the provider justified the increase in SETSS from 3 to 5 hours per week, and I therefore direct implementation to pay at an enhanced rate up to five hours per week for the entire 2019-2020 school year upon presentation of invoices for said hours. Dated: October 5, 2020 So Ordered, Mechfs. ees Bee Impartial eating Officer 2 In overtuling 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 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). > 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.