New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 561822 - NYC: 217822

FINDINGS OF FACT AND DECISION

Case Number: 217822

Student’s Name: [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: November 3, 2021

December 22, 2021

January 26, 2022

February 18, 2022

March 10, 2022

April 25, 2022

Actual Record Close Date: May 7, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

November 3, 2021 For the Parent:

[REDACTED], Advocate For the Department:

[REDACTED], District Representative

December 22, 2021 For the Parent:

[REDACTED], Advocate For the Department:

[REDACTED], District Representative

January 26, 2022 For the Parent:

[REDACTED], Advocate For the Department:

None

February 18, 2022 For the Parent:

[REDACTED], Advocate For the Department:

[REDACTED], District Representative

March 10, 2022 For the Parent:

[REDACTED], Advocate For the Department:

[REDACTED], District Representative

March 10, 2022 For the Parent:

[REDACTED], Advocate For the Department:

[REDACTED], District Representative

April 25, 2022 For the Parent:

[REDACTED], Advocate

[REDACTED] [REDACTED], Parent

[REDACTED] [REDACTED], Educational Director, [REDACTED] [REDACTED] Agency For the Department:

[REDACTED], District Representative

[REDACTED], District Representative

On October 27, 2021, 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20 U.S.C. §1415(f), in the matter of [REDACTED] [REDACTED] after the appointment of another hearing officer was rescinded.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 15, 2021, challenging the Department of Education’s failure to offer [REDACTED] a free appropriate public education for the 2021-2022 school year and seeking SETSS and RSAs for [REDACTED] for the 2021-2022 school year. Parent’s Ex. A at 1-3.

A pre-hearing conference was conducted on November 3, 2021. Proceedings continued on December 22, 2021 and January 26, February 18, and March 10, 2002, and the hearing concluded on April 25, 2022.

The Department rested its case without offering any documents in evidence or calling any witnesses to testify. Tr. 55-56. The Department objected to the rate of $160.00 per hour for SETSS and the rate of $125.00 per 30-minute session request by [REDACTED]’s parent for these respective services provided to [REDACTED]. Tr. 61. The Department argued that such rates were “extremely excessive.” Tr. 61. The Department also asserted that services should, if awarded, be provided for a 36-week 10-month school year, rather than a 40-week 10-month school year. Tr. 61.

Extensions of the compliance date were requested by the parties and granted by a written Orders of Extension dated November 3 and December 22, 2021 and January 26, February 18, and March 10, and April 25, 2022.

The record closed on May 7 2022, and the Actual Record Close Date is May 10, 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 a [REDACTED]-year-old boy whose disability, for the purposes of the IDEA, is classified as other health impairment. Parent’s Ex. B at 1; Tr. 66.
• • [REDACTED] attends mainstream classes at a private religious school, [REDACTED], in [REDACTED]. Tr. 65; Ex. D at 1.
• • [REDACTED] struggles with reading comprehensions skills, math, writing, focusing, social-pragmatic language and articulation, fine and gross motor skills, and social skills. Tr. 72; Ex. B at 1-2, Ex. D, Ex. E at ⁋ 15, Ex. G.
• • On January 20, 2017, the CSE convened an IESP meeting for [REDACTED]. Parent participated in this meeting. Ex. B at 1, 9. Another IESP was recently prepared for [REDACTED]; this IESP was not offered in evidence.
• • The CSE recommended that [REDACTED] receive SETSS for five periods per week as a group service in [REDACTED], speech therapy (three 30-minute sessions per week individually in [REDACTED]), occupational therapy (two 45-minute sessions per week individually), physical therapy (two 45-minute sessions per week individually) and counseling (one 30-minute session per week as a group service). Ex. B at 6.
• • Parent searched for providers who would accept the DOE’s pay rates; he was unable to secure providers accepting the DOE’s pay rates. The providers were unavailable, or booked with other students, or did not teach in [REDACTED], or would not come to [REDACTED]’s school. Tr. 66; Ex. F 9log of phone calls to providers and providers’ responses).
• • Parent telephoned the CSE about his difficulties locating providers. Tr. 70. He received emails and voicemails from the CSE about scheduling a meeting. Tr. 70-71. He did not recall whether or not he responded to the telephone calls and believed he responded to the emails. Tr. 73.
• • As a result, Parent “signed up” with an agency, [REDACTED] [REDACTED], to provide [REDACTED] with SETSS and speech therapy. Tr. 66-67.
• • [REDACTED] is an agency that provide special education services to students with disabilities. Ex. E at ⁋ 3.
• • [REDACTED]’s SETSS provider and speech therapist have provided four hours per week of SETSS in [REDACTED] and three 30-minute sessions per week of speech-language therapy in [REDACTED], respectively, to [REDACTED] at his school since September 2021. Tr. 67; Ex. E at ⁋⁋ 15, 17.
• • Parent signed a contract with [REDACTED] for the above services and is financially responsible for such services. Tr. 68, 88. This contract was not offered in evidence.
• • [REDACTED] charges $125.00 per 30-minute session of speech therapy and $160.00 per hour for SETSS.. Tr. 79.
• • [REDACTED] pays the SETSS provider $78.00 per hour. Tr. 80. Over 50% of the total fee is for the costs of a supervisor who “oversees the services,” meetings between the supervisor, providers and school staff, overhead, supplies, administrative staff, teacher training, employment taxes, “legal” and “loans.” Tr. 80-81; Ex. E at ⁋ 12.
• • [REDACTED] pays the speech provider $87.50 for each 30-minute session of speech therapy. Tr. 84. [REDACTED] provides the speech provider with “mentorship by a speech specialist.” Tr. 85.
• • The SETSS and speech providers are appropriately licensed and certified. Ex. E at ⁋⁋ 18, 19, Ex. H.
• • The agency’s educational director signed an Affidavit of Services. Ex. I. This document delineates the nature and costs of the services the agency is providing to [REDACTED] and the balance due for the services. Ex. I.
• • [REDACTED] is not currently receiving counseling, occupational therapy and physical therapy. Tr. 71-72.

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. [REDACTED] 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).

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.

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. See also Bd. of Educ. of the Bayshore Union Free Sch. Dist. v. Thomas K., 14 N.Y. 3d 289 (2010) (relevance of individualized educational needs of dually-enrolled students).

It is undisputed in this proceeding that the DOE did not provide [REDACTED] with the IESP’s mandated complement of SETSS and related services during the 2021-2022 school year. Since the DOE was required by Education Law § 3602-c to provide those services, and failed to do so, I must consider whether the DOE should be required, at this time, to provide funding for services that [REDACTED]’s parents secured through [REDACTED].

The DOE seems to imply that [REDACTED]’s parent did not execute a diligent search for a SETSS provider. However, [REDACTED]’s parent was not required to undertake such a search because the DOE was responsible for providing a SETSS provider for [REDACTED]. This is what “public” means in the term “FAPE:” the school district provides the service. In any event, [REDACTED]’s parent made many calls to SETSS providers in an attempt to locate someone willing to work with [REDACTED].

The DOE asks that services, if awarded, should be for the 36 weeks that are in a 10-month school year in public schools in New York City. Even though a private school might have more weeks in its school calendar, 3602-c relates to “equitable” services—as in services equitably-related to services received by students attending public schools. As a result, the DOE should be required to provide 36 weeks of services.

I am also called upon to determine whether the DOE should be required to pay a specific rate for [REDACTED]’s services for both SETSS and speech therapy. As in SRO No. 21-245, a Burlington/Carter analysis is both an appropriate and a practical manner in which to approach and consider this case. See Florence County School District v. Carter, 510 U.S. 7 (1993); School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). Under such an analysis, a board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985).

Under a Burlington/Carter analysis, services which are determined as reimbursable or fundable are fully reimbursed or funded by the school district “unless, as a matter of equitable considerations, the costs sought to be reimbursed are excessive or otherwise should be reduced, or, in the case of direct funding, the parent has not demonstrated a legal obligation to pay the cost and an inability to do so.” SRO No. 21-245 at p. 17 (emphasis added). In short, there must be proof of parents’ legal obligation to pay for services provided to their child. Id. at pp. 17-18. See also, e.g., D.A. v. New York City Dept. of Educ., 769 F Supp. 2d 403, 430 (S.D.N.Y. 2011).

In the instant matter, [REDACTED]’s parent and the educational administrator from [REDACTED] testified (via affidavit) that [REDACTED]’s parent entered into a contract with [REDACTED] that obligated him to pay [REDACTED] for services for [REDACTED]. This contract was not offered in evidence. However, there is information in the record of the contract’s terms, including the nature, extent and costs of the services [REDACTED] was contracted to provide to [REDACTED]. It is important to note that certain evidentiary formalities, such as rules like “the best evidence rule,” do not apply in impartial hearings. While the contract would be the “best evidence” of [REDACTED]’s parent’s obligation to pay, ^[1] the SRO does permit some flexibility here. The SRO points out that other evidence, such as a bill or invoice could constitute sufficient evidence indicating a parent’s obligation to pay for services. See SRO No. 21-245 at pp. 17-18. I find that the Affidavit of Services, because it sets forth the nature and costs of the services the agency is providing to [REDACTED] and the balance due for the services, constitutes sufficient indicia that [REDACTED]’s parent is obligated to pay for [REDACTED]’s services to [REDACTED].

As to the Department’s argument that the amounts charged by [REDACTED] for SETSS and speech therapy are “excessive,” the generic and conclusory testimony of [REDACTED]’s administrator is not helpful to me, and the DOE provided me with no evidence regarding the “excessiveness”of the rates or what would constitute an appropriate rate. The record simply does not support a finding of “excessiveness” or an award of a particular rate. However, it is concerning that expenses other than payments to the SETSS providers constitute more than 50 percent of the total charge.

With respect to OT, PT and counseling: the Due Process Complaint includes a general request for RSAs for related services. [REDACTED] should have been receiving these related services this year. There is no dispute between the parties that [REDACTED] needs these services. As a result, I will order RSAs for these services.

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

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

1. The Department of Education shall fund up to five periods per week of SETSS and three 30-minute sessions per week of speech therapy for [REDACTED].for the 2021-2022 10-month, 36-week school year.

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

3. The Department of Education shall provide Related Services Authorizations for [REDACTED] for the following related services: occupational therapy (two 45-minute sessions per week individually), physical therapy (two 45-minute sessions per week individually) and counseling (one 30-minute session per week as a group service) the 2021-2022 10-month, 36-week school year.

Dated: May 21, 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

EXHIBIT

DATE

DESCRIPTION

Number of pages

A 09/15/21 Impartial Hearing Request 6

B 01/20/17 Individual Education Services Program 9

C 09/14/21 Retainer Agreement 2

D 02/01/22 Progress Report 5

E 02/14/22 Affidavit of Services and Testimony 5

F 21/22 Parent Outreach 2

G 02/14/22 Speech Report 1

H Provider’s Certificate 6

I 02/21/22 Affidavit of Services 1 Parent’s Exhibits Footnotes

[1] And it would be preferable to have the contract offered in evidence.