New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 558886 - NYC: 214888

FINDINGS OF FACT AND DECISION

Case Number: 214888

Student’s Name: [REDACTED] [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: February 2, 2022

February 18, 2022

March 24, 2022

Actual Record Close Date: April 7, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

February 2, 2022 For the Parent:

[REDACTED], Legal Assistant For the Department:

[REDACTED], District Representative

February 18, 2022 For the Parent:

[REDACTED], Esq.

[REDACTED], Legal Assistant For the Department:

[REDACTED], District Representative

March 24, 2022 For the Parent:

[REDACTED], Esq.

[REDACTED] [REDACTED], Parent

[REDACTED], Supervisor, [REDACTED]

[REDACTED], Financial Director, [REDACTED] For the Department:

[REDACTED], District Representative

On January 19, 2022, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of [REDACTED] [REDACTED] after the appointment of another hearing officer was rescinded. [REDACTED]’s parent (“Parent”) requested the hearing on September 7, 2021, challenging the Department of Education’s failure to offer [REDACTED] a free appropriate public education for the 2021-2022 school year, specifically the reduction in services for [REDACTED] and the failure to implement mandated services, and seeking compensatory services for [REDACTED] for the 2021-2022 school year. Parent’s Ex. A at 1-2.

A pre-hearing conference was conducted on February 2, 2022. A pendency hearing was conducted on February 18, 2022 and a Pendency Order was issued on that same date.

The hearing on the merits was conducted on March 24, 2022. At the hearing, Parent, through counsel, clarified that she was seeking five hours per week of SETSS, a bank of 40 hours of compensatory speech-language therapy, all at a “reasonable market rate,” and a finding that the DOE’s reduction of SETSS from five to three hours per week was a denial of FAPE. Tr. 44. The DOE did not present the testimony of any witnesses nor seek to introduce any documents into evidence. Tr. 46. The DOE representative did, however, object to Parent’s requests for five hours per week of SETSS and for any services at an “enhanced rate” of $175.00 per hour. Tr. 45-46.

Extensions of the compliance date were requested and granted by written Orders of Extension dated February 18 and March 24, 2022.

The record closed on April 7, 2022, upon the Hearing Officer’s receipt of the transcript of the final day of the hearing, and the Actual Record Close Date is April 7, 2022.

Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

Findings of Fact

• • [REDACTED] is an [REDACTED]-year-old boy whose disability, for the purposes of the IDEA, is classified as speech or language impairment. Parent’s Ex. B at 1.
• • [REDACTED] attends mainstream classes at a private religious school, [REDACTED], in [REDACTED]. Parent’s Ex. A at 1.
• • [REDACTED] struggles with phonetic reading skills, reading comprehension, math skills, phonological awareness, focusing in the classroom, following directions as well as decreased fine motor and visual perceptual/motor skills. Tr. 48; Parent’s Exs. B at 1-3, E at ⁋ 2., G.
• • On March 15, 2021, the Department’s CSE convened a meeting to develop an IESP for [REDACTED]. Parent’s Ex. B.
• • The IESP recommends the following program for [REDACTED]: SETSS, three periods per week as a group service; Speech-Language Therapy, two 30-minute sessions per week; and Occupational Therapy, two 30-minute sessions per week. Parent’s Ex. B at 8.
• • It is undisputed that the DOE did not provide a SETSS provider or a speech therapist for [REDACTED] for the 2021-2022 school year.
• • Parent submitted a ten-day notice letter to the DOE on September 5, 2021 informed the DOE that she would be seeking funding for SETSS and related services. Parent’s Ex. D.
• • Parent tried to find a SETSS provider from the DOE’s list of provider, but she was unable to find a provider who was available to work with [REDACTED]. Tr. 69-70.
• • Parent obtained SETSS for [REDACTED] from an agency named [REDACTED]. Parent’s Ex. E at ⁋⁋ 8, 9, 11; Parent’s Ex. I. [REDACTED] provides five hours per week of SETSS to [REDACTED]. Parent’s Exs. F at ⁋ 8, I.
• • The SETSS provider who works with [REDACTED] is a New York State certified special education teacher. Tr. 60; Parent’s Ex. H.
• • [REDACTED] pays her $80.00 per hour. Tr. 64.
• • [REDACTED] bills at $175.00 per hour for SETSS because, in addition to the payment to the SETSS provider, it covers supervision, teacher training, insurance, assessing the student, office staff, overhead, and other expenses. Tr. 65-66.
• • With five hours per week of SETSS this year, [REDACTED] has worked on multiplication, division, reading decoding, reading fluency, comprehension skills, spelling, and writing, and made slow and steady progress. Tr. 48; Ex. G. The educational supervisor of the SETSS opined that [REDACTED] would regress without five hours per week of SETSS because [REDACTED] needs consistent intervention in order to learn new material, maintain progress and keep up with his classmates. Tr. 49-51, 56; see also Parent’s Ex. G.
• • [REDACTED] is not currently receiving speech therapy because Parent was unable to locate a provide. Tr. 70; Parent’s Ex. E at ⁋ 13.
• • Paying for the services and then seeking reimbursement would be a financial hardship for the family, so Parent is requested direct payment. Parent’s Ex. E at ⁋ 10.

Decision

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982).

The IDEA mandates that each state receiving federal special education funds must provide each student with a qualifying disability a FAPE. 20 U.S.C. § 1412(a)(1)(A). FAPE is provided when a school district (1) has complied with the procedural requirements of the IDEA; and (2) the IEP developed by the CSE is reasonably calculated to enable the student to make progress given the student’s individual circumstances. Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v).

Under New York State Education Law § 3602-c, parents of students with disabilities have the right and ability to select a nonpublic school willing to enroll their child, and places the burden of developing and providing appropriate special education programming upon the school district in which such school is located. The school district must develop an appropriate program for the student in the environment in which the student will receive his or her education (i.e. – the nonpublic school). Section 3602-c expressly states that a school district of location’s CSE “shall develop an [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an [IEP].” Education Law § 3602-c(2)(b)(1). “The committee on special education shall assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.” Id. See, e.g., Application of a Student with a Disability, Appeal No. 21-245 at pp. 10-18 (description of districts’ responsibilities under § 3602-c and interplay with IDEA); see also Application of a Student with a Disability, Office of State Review No. 20-094; Application of a Student with a Disability, Office of State Review No. 20-087.

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i); 8 NYCRR 200.5(j)(4).

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

Here, the DOE did not present testimony or documentary evidence. It is undisputed that the DOE did not provide [REDACTED] with SETSS and speech therapy, as mandated by the IESP that the DOE prepared for him, for the 2021-2022 school year. The parties do not dispute that the IESP is the currently operative IESP, and the DOE does not dispute that since [REDACTED] should have received SETSS and speech therapy as mandated by the this IESP. Since the DOE was required by Education Law § 3602-c to provide those services, the DOE should be required, at this time, to provide funding for the at least three hours of SETSS per week that [REDACTED]’s parents secured through [REDACTED] and compensatory services for speech therapy.

The only issues in dispute are (1) the additional two hours per week of SETSS sought by Parent and (2) the rate charged by [REDACTED] for SETSS. The preponderance of the evidence in the record demonstrates that [REDACTED] needs the additional two hours per week of SETSS to work on needed skills, make progress, avoid regression and otherwise keep up with his classmates. These additional two hours are therefore a necessary component of FAPE for [REDACTED].

I am also called upon to determine whether the DOE should be required to pay an “enhanced rate” for [REDACTED]’s services. The generic and conclusory testimony of the [REDACTED]’s administrator is not helpful to me. The DOE provided me with no evidence regarding what would constitute an appropriate rate.

There is also the question of whether Parent undertook a diligent search for a SETSS provider from the DOE list. Parent undertook a search that she was not even required to undertake because the DOE was responsible for providing a SETSS provider and a speech therapist for [REDACTED]. This is what “public” means in FAPE: the school district provides the service. Giving parents a list is not sufficient for a school district to fulfill the “public” requirement of a FAPE.

As a result, I will exercise my equitable authority to craft a remedy considering the following factors: (1) my conclusion that the DOE, the party with the burden of proof, that the DOE did not provide SETSS and speech therapy to [REDACTED] during the 2021-2022 school year; and (2) the record does not support a particular rate. There are 36 weeks in a 10-month school year. A total of 180 hours is the proper number of hours of SETTS for [REDACTED] for the 2021-2022 because there are 180 days in a 10-month school year Even though a private school may have more days in its school calendar, 3602-c relates to “equitable” services—as in services equitably-related to services received by students attending public schools.

Given the testimony and the documentary evidence in the record, as well as the arguments presented by the parties, I will order services as described in the order below.

Therefore, for all the above reasons, it is ORDERED that:

1. The Department of Education shall fund five hours per week of SETSS for [REDACTED] provided by [REDACTED] for the 2021-2022 10-month school year. The total number of SETSS hours for which the Department is responsible for funding shall not exceed 180 hours.

2. The Department of Education shall pay a reasonable market rate, as determined by the DOE’s Implementation Unit, for the aformentioned SETSS; and, in any event, that rate shall not exceed the rates that the selected provider has charged for SETSS delivered to students in New York City during the 2021-2022 school year.

3. The Department shall fund a bank of 40 hours of speech therapy at a rate that shall not exceed the rates that the selected provider has charged for speech therapy delivered to students in New York City during the 2021-2022 school year. These hours shall be provided to [REDACTED] within the next 12 months; any hours of speech therapy that have not been utilized before April 21, 2023 shall expire.

Dated: April 20, 2022

______________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the 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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT DISCLOSURE

Letter

Date

Name of Document

Number of Pages

A

9/7/2021

DPC

7

B

3/15/2021

IESP

10

C

03/12/2020

FOFD

10

D

09/08/2021

TDN

3

E 2/24/2022 Affidavit of Parent 3

F 3/24/2022 Affidavit of [REDACTED] 3

G 12/15/2021 Progress Report 3

H Provider Credentials 1

I 3/24/2022 Affidavit of [REDACTED] 1