New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT

Case Number: 227599

Student's Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

CSE REDACTED

Hearing Requested By: Parent

Dates of Hearing: 9/8/22, 9/13/22

9/29/22

10/24/22

2/27/22

3/20/23

4/28/23

5/24/23

6/23/23

7/17/23 Record Close Date 08/28/2023

Hearing Officer: TINA MILLMAN Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 9/08/2022

For the Student-

REDACTEDJ.D. Law Clerk

For the Department of Education:

None-DOE Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 9/13/2022

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED-DOE Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 9/29/2022

For the Student:

REDACTED, Attorney

REDACTED-J.D.

Law Clerk

For the Department of Education:

None-DOE Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/24/2022

For the Student:

REDACTED- J.D.

Law Clerk

For the Department of Education:

None-DOE Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 2/27/2023

For the Student:

REDACTED, J.D.

Law Clerk

For the Department of Education:

None -DOE Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 3/20/2023

For the Student:

REDACTED, Attorney

REDACTED- J. D.

Law Clerk

For the Department of Education:

REDACTED Hearing Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 4/28/2023

For the Student:

REDACTED Attorney

REDACTED J.D.

Law Clerk

REDACTED -Parent

For the Department of Education:

REDACTED, Esq.-Hearing Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 5/24/2023

For the Student:

REDACTED, Attorney

REDACTED - J.D.

Law Clerk

REDACTED-Parent

REDACTED- Administrator

REDACTED LLC

REDACTED- Supervisor

REDACTED LLC

For the DOE: REDACTED, Esq-Hearing Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 6/23/23

For the Student-

REDACTED, J.D. Law Clerk

For the Department of Education:

REDACTED.- Hearing Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/17/23

For the Student-

REDACTED, J.D. Law Clerk

For the Department of Education:

REDACTED.- Hearing Representative

INTRODUCTION

On July 11, 2022, I was appointed as the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing The Parent filed the Due Process Complaint (DPC), dated 7/1/2022. (Ex A)

Within the body of the DPC the Parent asserts they filed the same to contest the New York City Department of Education's ("the district") Committee on Special Education's ("CSE") failure to provide a procedural and substantively appropriate IESP in a timely manner for the 2022-2023 school year. To contest the school district's failure to utilize appropriate scientifically based teaching instruction as mandated by the Individuals with Disabilities Education Improvement Act of 2004 ("IDEA"). To contest the CSE's failure to obtain and utilize sufficient clinical data. To contest the CSE's failure to provide prior written notice in accordance with state and federal law. To contest the CSE's failure to provide REDACTED with a free, appropriate public education in compliance with the IDEA, New York State Education Law, and Section 504 of the Rehabilitation Act of 1973 for the 2022-2023 school year. To contest actions taken by the district that impeded REDACTED parents from fully participating in the educational decision-making process.

The student is a REDACTED old student who has been classified by the CSE as a student with a Speech or Language Impairment.

Appended to the record are lists of persons in attendance and the documents received in evidence. Hearings were subsequently held for the matter on 9 /8/ 22, 9/ 13 /22, 9 /11/22, 09/29/22,10/24/ 22, 2/27/23, 3/20/23, 4/28/23,5/25/23, 6/23/23, and 7/17/23.

The parents maintain in their DPC that to date, the CSE has failed to arrange for implementation of the services delineated in the May 24, 2018 IEP for the start of the twelve month 2022-2023 school year and alleges the DOE failed to offer the Student a Free and Appropriate Public Education (FAPE) for the 2022-2023 school years. (Ex A)

On 9/13/22 and 9/29/22, hearings were held to determine the students Pendency entitlements. The DOE contested the basis for pendency, both parties submitted briefs. . On 10/18/22 an interim order was issued stating the following: (IHO I and II entered 9/29/22)

ORDERED that the Department of Education will continue to provide funding for the students 12-month special education program of 71/2 hours of SEIT, and the related services of Speech and Language Therapy 2x 30 1:1, and Occupational Therapy 2 x 30 1:1, pursuant to the IEP’s dated 5/24/18 (Exhibit B, Ex. 3) together with the IESP dated 4/6/20 (Exhibit C).

The aforementioned services are to be provided retroactively as of the date of filing 7/1/22.

DEPARTMENT OF EDUCATION POSITION

No witnesses were called however 5 (1 -5) documents were submitted. At the Hearing on 4/28/23 the DOE representative initially stated that the evidence will show that the IESP created for the student on 1/31/22 (Ex. 3) provided the student with a FAPE. The DOE in their closing brief recants and states they acknowledge a FAPE was not offered. The DOE maintains the student was not entitled to related services under IDEA. The DOE representative further states that the services the parent seeks to maintain are not appropriate for the student and finally that the rate requested is excessive in light of market rates and what is being paid to the provider. (Tr. 115)

This claim is for funding for Special Education Teacher Support Services (“SETSS”) provided pursuant to an Individualized Education Services Program (“IESP”). The DOE maintains the Burlington/Carter test is applicable to due process claims arising from an IESP. In their brief the Department acknowledges that it did not put on a case to meet the first prong of the Burlington/Carter test and is not asserting it provided the student with a Free and appropriate Public Education (“FAPE”) for the 2022-2023 school year.

The DOE notes in their closing brief that while parents have a lesser burden in making their case under the second prong of Burlington/Carter the Parents failed to meet even that lower burden in this case. They maintain, the parents have failed to show that they have chosen appropriate services.

The DOE elaborates that the Parent executed a contract with the Agency without specific terms as to services and the rate for those services. EXHIBIT J. Parent testified that she understood she could not pay the provider at the time she signed the agreement but signed it anyway. ( Tr. 170). The DOE maintains, the contract for services at $195 per session hour is not binding on Parent because Agency did not disclose this rate of $195 or any rate Parent would be charged. Being the Parent did not agree to a specific rate which according to the Parent Agreement could be any amount Agency decided it would be. Here, although Parent Agreement makes no mention of the actual rate Agency is charging, Mr. REDACTED, an Agency employee, testified that Agency is charging enhanced rates at $195 per hour which is over the providers rate because the $195 includes “a lot of overhead costs”. ( Tr. 151).

The DOE argues that even if I find there was 1) an obligation on the parent to pay and

2) that Agency provided services to the student sufficient to meet the student’s individual needs, the amount awarded should exclude ancillary fees because these fees do not go directly towards education. “ The DOE maintains in their closing that the State Review Office has stated it is inequitable to have the DOE pay a special education service provider excessive costs beyond that which goes to the student’s education.

REDACTED testified that he did not know the provider who provided SETSS to the Student and that his sole purpose was to handle invoices. (Tr. 151). He could not verify whether services had been provided as mandated by the Student’s IESP.

Thus, the DOE believes the rate should be limited to what the DOE would be willing to pay which is $85/per hour.

The DOE contends that the parent failed to establish that the placement at this Agency was appropriate nor does the evidence support Parent in the equities of this case where enhanced rates of $195 is excessive and unwarranted. WHERFORE, all requests for relief should be denied and/or should be limited to the rate of $85.00 per hour to cover the costs of the SETSS provider rather than at $195 where Agency is making a profit.

THE PARENT’S POSITION

The Parent ‘s attorney set forth allegations and relief sought in the DPC and at Hearing. (Ex A) The student is a REDACTED year-old child who is classified by the New York City Department of Education’s (“the district”) Committee on Special Education (“CSE”) as a student a Speech or Language Impairment. (Ex. M)

REDACTED began receiving special education services through the district’s Committee on Preschool Special Education (“CPSE”). (Ex. B, M) At that time, the district determined that the student required 7.5 hours of one-to-one Special Education Itinerant Teacher services (“SEIT”), as well as Speech-Language Therapy (2x30, 1:1) on a 12-month basis. All agreed that these recommendations were appropriate for the student. (Ex. M) From the 2019-2020, 2020-2021, and 2021-2022 school years, REDACTED. continued REDACTED lastagreed upon services as delineated in the May 24, 2018 IEP and April 2020 IESP (revised in September 2020).

On January 13, 2022, the district developed an IESP for the student, which recommended that REDACTED receive 4 “periods” of SETSS in an undefined group, Speech Language Therapy (1x30; 1:1, 1x30; group), Occupational Therapy (2x30; 1:1) and Counseling services (1x30; group). The IESP indicates a projected date of review of January 13, 2023, and therefore, was intended to be in place for the start of the fall portion of the 2022-2023 school year. (Ex. A, M) Although the students’ parents agree with all the recommended services, they did not agree with the recommendation that her SETSS be provided within a group setting. Moreover, the parent disagreed with the district’s decision to terminate REDACTED 12-month services. The Parent agrees with the majority of recommendations delineated in the January 13, 2022 IESP, the sole issue pertains to the appropriateness of the CSE’s actions in terminating REDACTED 12-month services, and changing the recommendation of special education services from an individualized, 1:1 setting to a group setting. The Parent maintains, the district failed to present any evidence to establish the appropriateness of its actions. Thus, the continuation of REDACTED 1:1 special education teacher support services and related services on a 12-month basis is the proper remedy. The Parent maintains the DOE 1¶ failed to offer the student appropriate educational services to the 2022-2023 school year.

2¶ failed to conduct sufficient evaluations of the student prior to changing the recommendation of SEIT services from a 1:1 setting to a group setting and eliminating her 12-month program. 3¶ failed to implement any of recommended services enumerated in the students’ January 2022 IESP for the 2022-2023 school year. 4¶ The Parent maintains as the CSE failed to provide the student with appropriate services, the requested relief should be granted. 5¶ The Parent asserts the rates charged by the REDACTED are reasonable and there is no evidence to the contrary.

FINDING OFFACTS AND DECISION

It is noted that the matter is not a case for tuition reimbursement, therefore the Burlington /Carter analysis is not the sole analysis to be utilized.

Purposes of the Individuals with Disabilities Education Act(IDEA)(20U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah- Lewisboro Union FreeSch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2dCir. 2012], cert. denied 2013 WL 1418840 [U.S.June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2dCir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.2005])."'[A]dequate compliancewith the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that"[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir.2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at*10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded thestudent's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in thedecision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. ParmaCity Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether thestudent received a FAPE (20 U.S.C. § 1415[f][3][E][i]).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). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130 see Rowley, 458 U.S. at 189). Thestatute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. BayShoreUnion FreeSch. Dist., 873 F.2d 563,567 (2d Cir. 1989)][citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords thestudentwith an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]);see T.P., 554 F.3d at 254;P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2dCir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1];see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18,2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement andfunctionalperformance (see 34 CFR300.320[a][1]; 8 NYCRR200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the"'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet thestudent's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A];8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep'tof Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep'tof Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

TheSupremeCourt has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

As a student with a disability, redacted is entitled to receive a free and appropriate public education (“FAPE”) pursuant to the Individuals with Disabilities Education Improvement Act (“IDEA”). 20 U.S.C. § 1400, et. seq. To provide a FAPE, the district must create “…an educational program that is reasonably calculated to enable [redacted] to receive educational benefits”, including enabling REDACTED, a student in a general education class, “to achieve passing marks and advance from grade to grade.” Endrew F. v. Douglas County. Sch. Dist, 137 S.Ct. 988, 995–96 (2017) (citation omitted). While the IDEA does not confer an individual entitlement to special education or related services for students who are parentally placed in nonpublic school, New York State law confers an individual right to a FAPE to students who attend private schools at their parents’ discretion. N.Y. EDUC. LAW § 3602-c

Therefore, while the student attends a private school, she is still entitled to appropriate special education services from the district. Specifically, New York state law requires that the local education agency where a private school is located (“the district of location”) provide services to private school students with disabilities on an “equitable basis”, as memorialized in an IESP, “based on the student’s individual needs in the same manner and with the same contents as an Individualized Education Program.” § 3602-c(2)(b)(1).1 The term “equitable” within § 3602-c requires the district of location to provide a FAPE (i.e.: the same special education and related services students would receive if attending a public school). See Bd. of Educ. of Bay Shore Union Free Sch. Dist. v. Thomas K., 14 N.Y.3d 289, 293 (2010) (classifying the level of services a district of location must provide a private school student as a “free, appropriate public education”). In interpreting this statute, the New York State Court of Appeals has held that “the statute was plainly designed to increase benefits afforded to handicapped children in private school – not to limit them.” Bd. of Educ. of the Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184-85 (1988).

The appropriateness of any additional supports REDACTED receives, or does not receive, in REDACTED current program is irrelevant, as the district is required to provide the student with appropriate special education and related services pursuant to § 3602-c. Furthermore, § 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level procedures outlined in N.Y.’s Education Laws. Thus, the district must prove that it offered REDACTED a FAPE. N.Y. EDUC. LAW § 4404(1)(c). As previously noted, the students’ parents are not seeking public funding for the tuition of the students’ unilateral private school placement, therefore, the Burlington/Carter analysis is inapplicable here. Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 369 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-13 (1993). Instead, the inquiry to be determined is whether the district provided the student with a procedurally and substantively valid educational program that was implemented in a timely manner for the 2022-2023 school year.

Districts are required to develop an IESP for students who are placed in private programs by their parents. NY EDUC. LAW § 3602(c)(2)(b)(1). IESPs must be developed for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]” and the district must “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.” NY EDUC. LAW §3602(c)(2)(b)(1). Thus IESPs “must be reviewed periodically, but not less than annually.” See, Memorandum from James P. DeLorenzo, re: Chapter 378 of the Lawsof 2007, New York State Education Department, Sept 2007. The district failed to do so here, as neither an IESP nor an IEP was in place for the student for the entirety of the 2022-2023 school year As the Parent has agreed with the majority of recommendations delineated in the January 13, 2022 IESP, the main issue pertains to the appropriateness of the CSE’s actions in terminating the students 12-month services, and changing the recommendation of special education services from 7 ½ hours individualized, to 4 hours in a group setting.

It is noted that this is not a Burlington tuition issue.

Did the DOE offer of FAPE for the 2023-24 school year?

In their brief the Department acknowledges they did not provide the student with a Free and appropriate Public Education (“FAPE”) for the 2022-2023 school year. (DOE Closing Brief Page 3, IHO III )

Was the student entitled to services under the IDEA?

TheSupremeCourt has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

As a student with a disability, REDACTED is entitled to receive a free and appropriate public education (“FAPE”) pursuant to the Individuals with Disabilities Education Improvement Act (“IDEA”). 20 U.S.C. § 1400, et. seq. To provide a FAPE, the district must create “…an educational program that is reasonably calculated to enable [REDACTED] to receive educational benefits”, including enabling REDACTED, a student in a general education class, “to achieve passing marks and advance from grade to grade.” Endrew F. v. Douglas County. Sch. Dist, 137 S.Ct. 988, 995–96 (2017) (citation omitted). While the IDEA does not confer an individual entitlement to special education or related services for students who are parentally placed in nonpublic school, New York State law confers an individual right to a FAPE to students who attend private schools at their parents’ discretion. N.Y. EDUC. LAW § 3602-c.

Therefore, while the student attends a private school, REDACTED is still entitled to appropriate special education services from the district. Specifically, New York state law requires that the local education agency where a private school is located (“the district of location”) provide services to private school students with disabilities on an “equitable basis”, as memorialized in an IESP, “based on the student’s individual needs in the same manner and with the same contents as an Individualized Education Program.” § 3602-c(2)(b)(1).1 The term “equitable” within § 3602-c requires the district of location to provide a FAPE (i.e.: the same special education and related services students would receive if attending a public school). See Bd. of Educ. of Bay Shore Union Free Sch. Dist. v. Thomas K., 14 N.Y.3d 289, 293 (2010) (classifying the level of services a district of location must provide a private school student as a “free, appropriate public education”). In interpreting this statute, the New York State Court of Appeals has held that “the statute was plainly designed to increase benefits afforded to handicapped children in private school – not to limit them.” Bd. of Educ. of the Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184-85 (1988).

The Appropriateness of the services does not come into play here as this is not a unilateral placement. The DOE did not support why they changed the students recommended services from 7 ½ hours to 4 nor do they support why they changed the student from a 12 month to a ten-month student. Submitting documents without having a witness to testify and explain how they came to their determination is not found to support the DOE’s burden. In fact, as previously noted the DOE in their closing brief acknowledges the IESP created did not provide the student with a FAPE.

Are the rates provided by Special Edge excessive?

The DOE alleges, the contract the Parent entered into is not valid as there was not a rate specified and further that the amount charged by the agency of $195 per hour is excessive. They request the provider be paid at the DOE rate of $85. The DOE failed to provide a service provider. The Parent was left with no choice but to obtain one on her own. In light of the DOE failing to provide a service provider as they were obligated to do the Parent found a provider at an enhanced rate. Although the agency is entitled to an enhanced rate in light of the DOE’s failure, I concur the rate of $195 is on the higher side. As requested in the DPC, the DOE will fund the students’ services for the 2022-2023 school year at “market rate”. Due to the students age the services will be provided as SETSS not SEIT.

ORDER

1. Department of Education (DOE) failed to offer the Student a FAPE for the 2022-2023 school year.

2. Upon proof of services being provided, the DOE will fund 7 ½ hours per week of SETSS to be paid to REDACTED at reasonable “Market Rate”.

3. Upon proof of services being provided ,the DOE will continue to fund and provide the related services of Speech and Language Therapy 2 x 30 1:1 and Occupational Therapy 2 x 30 1:1.

4. The aforesaid educational and related services will be provided on a 12-month basis.

Dated: September 2, 2023 IHO Tina Millman

ImpartialHearing Officer

PLEASE TAKE NOTICE

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. The regulations governing appeals 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.

As those Regulations detail, before filing an appeal, if either party intends to appeal the decision, a Notice of Intention to Seek Review shall be personally served upon the opposing party before the Appeal itself is filed, no later than 25 days after the date of the decision sought to be reviewed.

The Appeal itself must 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.

The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED

PARENT

Exhibit Date Document Title Number of Pages

A 07/01/2022 Impartial Hearing Request 3

B 05/24/2018 Individualized Education Program 13

C 04/06/2020 Individualized Education Services Program 10

D 07/01/2021 Impartial Hearing Request 3

E 09/01/2021 Order of Pendency 6

F 06/30/2020 Impartial Hearing Request 3

G 07/20/2020 Order of Pendency 2

Letter to CSE Chairperson on Behalf of Parent with Email

H 05/31/2022 Confirmation 3

I 03/09/2023 REDACTED Progress Report 3

J 07/01/2022 Signed Contract 2

K N/A Provider Certification 1

L 04/20/2023 Affidavit of Testimony of REDACTED 2

M 04/27/2023 Affidavit of Testimony of REDACTED 2

N 04/25/2023 Affidavit of Testimony of REDACTED 3

IHO

I, 9/14/22,DOE Pendency Brief, 2 pp.

II. 9/28/22, Parent Pendency Brief, 5 pp.

III. DOE Closing Brief, 7/14/23, 7pp. IV Parent Closing Brief 7/14/23, 14 pp.

DOE

EXHIBIT DATE NAME PAGES

1. DPC 7.1.22 6 pages DOE

2. Individualized Educational Service Plan (IESP) for REDACTED (246694970) 1.31.22 6 pages DOE

3. Parent Notice of Intent Parentally Placed for REDACTED (246694970) 5.31.22 3 pages DOE

4. Prior Notice for Placement Parentally Placed for REDACTEDD (246694970) 1.14.22 6 pages DOE

5. REDACTED Subpoena & Response various 26 pages DOE