New York City Department of Education, Impartial Hearing Decision

DECISION ORDER Case Number: 193980 Student’s Name: Redacted District: Hearing Requested By: Parent Hearing Officer: Martin J. Kehoe III, Esq.

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”) and the New York State Education Laws, inter alia. The New York City Department of Education will be referred to as the “District,” the parent as the “Parent,” and the child will be referred to as the “Student.” The Complaint Notice is dated May 21, 2020. The parties met over the course of two days to present arguments and develop their positions. Parent’s Position In the complaint notice, the Parent alleged that she was unable to find a Special Education Teacher Support Services (SETSS) provider at the District rate who could work with the Student (Ex. A & C). She requested that the Student receive SETSS for the mandated amount of 5 hours per week at an enhanced rate for the 2019-2020 school year (Ex. B p.6). District’s Position The District did not submit any evidence or call any witnesses but did assert the propriety of the recommendation of SETSS from the September 2019 TESP (Ex. B). The rate however, was called into question (Tr. P. 12). Student History At the time the complaint notice was filed the Student was xxx years old with a disability classification of Speech/Language Impairment (Ex. B) The Students weakness appears in relation to higher level assignments (Ex. B) Background of the Case A meeting was held on September 20, 2019, 2018 to create an Individualized Education Services Program (IESP) for the Student. The Student was recommended a program of Direct Group SETSS for 5 hours per week and related services in Speech and Language and Occupational Therapy (Ex. B) At the end of September 2019, the Parent contacted SETSS providers, but none of the providers were available. (Ex. C). Ultimately a provider was found at an enhanced rate ( Ex.s C& D) 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)(). “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 JEP. 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. § 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) mstruction 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, physica] 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).

601(14). In New York State, the TEP 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)()) 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 parentaliy 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 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 tate 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 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 umplement 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 Qd Cir. May 20, 2016). In this case, the Parents have come forward with evidence of that rate and this has been unchallenged. However, my judgement is informed by the caselaw 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. vy. 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 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 fuil 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.” 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 his 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.

Accordingly, I order that the District pay for the services identified in the uncontested IESP dated 9/20/19 at an enhanced market rate to be determined by the District’s “implementation unit” in consultation with the providers and/or their agents. This order encompasses the entire 2019 - 2020 school year. Dated: August 6, 2020 So Ordered, 7H ee (ial Fa Martin J lrenoe Hil, Esq. Impartial Hearing Officer

PLEASE TAKE NOTICE The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedResulationsOverview. html

CERTIFICATION OF IMPARTIAL HEARING OFFICER In the Matter of: | (Name of Student) Hearing Dates: 7/10/20, 8/4/20 Case Number: 193980 L, Martin J. 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 in this matter. 08/06/2020 & L—” Signature of Impartial Hearing Officer Date Signed Comments/Notes:

IMPARTIAL HEARING OFFICE Please submitform and evidence to: IHOEvidence@schools.nyc.gov ee PARENT EVIDENCE Student’s Name:Case Number: 193980 Date of Hearing: 08/04/2020(useseparatesheetforeachdateofhearing) Enter Exhibit No. . a ws Number DateDate Date Marked forID" Brief Description of Exhibitof Pages |Offered Admitted Withdrawn See Attached Parent exhibits: marked with uppercase letters(A-Z); Joint Parent & Department of Education exhibits: marked with lowercase letters (a-z) | certify thattheevidence listed wyVi on thedateindicatedabove. | 08/06/2020 ImpartialHearing Officer: Y Date: ? tsignature)7 iaMarch2020