Impartial Hearing Decision

Finding of Fact and Decision Case Number: 192019 Student’s Name: Hearing Requested By: Parent Hearing Officer: Martin J. Kehoe III, Esq. Actual Record Close Date: October 5", 2020

DECISION ORDER Case Number: 192019 Student’s Name: Hearing Requested By: Parent Hearing Officer: Martin J. Kehoe LI, Esq.

Introduction This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (HO) 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. This is an “enhanced rate” case where the Parent is seeking funding for Special Education Teacher Support Services (SETSS) at the market rate. A hearing was held on March 25, 2020: May 18, 2020; and June 3, 2020. Parent’s Position in the complaint notice, dated January 8, 2020, the Parent alleged that the District did not provide a Free and Appropriate Public Education (FAPE) for the 2019-2020 school year. The Parent disagreed with the recommendations of the Individualized Educational Support Program (IESP) and the frequency and duration of the Special Education Teacher Support Services (SETSS) services. The Parent is seeking payment to the Student’s SETSS Provider at a rate of $150 per hour, Related Services Authorizations (RSAs) for mandated services, and a recommendation for an extended school year (Ex. A). District’s Position The District did not submit any evidence or call any witnesses to defend their program.

Student History The Student has a disability classification of Speech or Language Impairment (Ex. B). The Student has Attention Deficit Hyperactivity Disorder (T. 30). The Student has difficulty with attention and is easily distracted. The Student’s decoding skill are in the low-average range; his reading comprehension skills are in the low range; his mathematical reasoning is in the low average range; his calculation skills are in the low range; and his spelling is in the low range (Ex. B). Background of the Case The IESP, dated March 29, 2019, recommended SETSS in 5 times per week in a group and counseling once per week, individual for 30 minutes (Ex. B). The Parent contacted five SETSS providers but none of them were available to work with the Student (Ex. B). The Parent testified that she contacted the Agency at the recommendation of the Student’s Teacher and Principal (T. 65). The Educational Director of the Agency testified by affidavit that the Agency provided the Student with 5 hours per week of SETSS from September 1, 2019 through June 30, 2020 (Ex. G). The Agency charged a rate of $175 per hour, which the Educational Director testified includes payment to the teacher, supervision, educational material, educational consultants, and professional training (T. 44). When asked why the Student was given SETSS services individually, instead of in a group, the Educational Director said, “The Student gets extremely distracted” in a group setting and needs to be taught individually (T. 39-40). The Student began the school year on a third-grade level of reading and math (T. 35) and is now at an end of third grade level in both subjects (T. 36). The services were provided in and out of the classroom and remotely. The services were individualized and included multi-sensory instruction (Ex. G). In math, the SETSS teacher worked on multiplication skills with the Student (T. 35). In reading, the SETSS teacher taught basic foundations of reading, helping the Student to isolate, and read word blends, and phonemes. The Student, “has been demonstrating slow and steady improvement”, according to the Educational Director. 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. § 60109). 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).

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). 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)(D) 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 ofa 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 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.) 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.” In this case the requested rate for SETSS is in the record and given the lack of opposition’, I direct that the District fund: ) - § periods per week of SETSS in at an enhanced rate to be determined by the “implementation unit” upon the presentation of invoices for services actually rendered during the 2019-2020 school year, and if needed, RSAs for the mandated related service on the IESP. - Aremand to the CSE for consideration of needs going forward. Dated: October 5, 2020 i? pf So Ordered, bbs “Kehoe Hl, Esq. Impartial{Hearing Officer ? 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. 3 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 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).

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 iducation 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.