New York City Department of Education, Impartial Hearing Decision

DECISION AND ORDER Case Number: 190699 Student’s Name: REDACTED District: Hearing Requested By: Parents Hearing Officer: Martin J. Kehoe III, Esq.

The Student’s Parent(s) are pursuing an impartial hearing request. The Due Process Complaint Notice is in the record as exhibit “A”. It is dated November 5, 2019. I was appointed as the IHO on November 7, 2019. In this case the District did not call witnesses or offer documentary evidence. The Parent did offer exhibits and did testify (via affidavit (Ex. F)) regarding the allegations in the complaint notice. I take away several points from the Parent's presentation. First, the Student has the potential for academic success given the proper services to assist with academics. Currently the Student is currently suffering from “inconsistency in functioning” (Ex. B) such that the recommended Special Education Teacher Support Services (SETSS) hours are appropriate. The claim that SETSS were mandated but never implemented during the weeks before my pendency order, effective November 5, 2019 for the 2019-2020 school year is valid. In this case there is a 1:1 correspondence between the requested services and the mandated services. Here the Parent’s choice of identifying a provider of her choice is warranted. Compensatory Education 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 New York State, 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}). Enhanced Rate In this type of 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 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.” Accordingly, I order that the District pay for a portion of the services identified in the uncontested IESP dated 11/20/17 (Ex. B) at an enhanced market rate to be determined by the District’s “implementation unit” in consultation with the providers and/or their agents. I recognize there are a finite number of hours per week, and the demands of the Student’s school year along with significant hours of tutoring, may be daunting. Inherent limits of stamina, pace, concentration and the like could easily place an unintended ' In ordering the instant disposition, I remain focused on the fact that 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 frec 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.

burden on the Student and the family. I attempt to mitigate these unintended consequences with my order. I therefore direct the District to set up and administer a bank of forty-five (45) hours of payment at enhanced market rate for SETSS services to be paid to a provider of the Parent’s choice. These hours are to be available for use for one year from the date of this order at the discretion of the Parent. Any unused hours at the end of this time period will be forfeited. Dated: July 13, 2620 So Ordered, Martin J. KehGe III, Esq. Impartial Hearing Officer

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:/Awww.sro.nysed.gov.