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FINDINGS OF FACT AND DECISION
Case Number: [228549]
Student’s Name: [REDACTED]
School District: [REDACTED]
Impartial Hearing Officer: Richard J. Zeitler, Jr.
Date of Filing: 07/05/2022
Hearing Requested by: Parent
Dates of Hearing: [REDACTED]
Record Close Date: 01/24/2023
Date of Decision: [02/07/2023]
Names and Titles of Persons Who Appeared December 21, 2022
For the Student
[REDACTED], Esq.
[REDACTED], Parent
[REDACTED], SETSS Provider Agency Administrator For the New York City Department of Education
[REDACTED], Consultant Impartial Hearing Representative
Names and Titles of Persons Who Appeared January 10, 2023
For the Student
[REDACTED], Esq.
[REDACTED], Parent
[REDACTED], Speech-Language Pathologist For the New York City Department of Education
[REDACTED], Consultant Impartial Hearing Representative
Background
On [REDACTED], the Parent, by and through the Parent’s Attorney, filed a due process complaint (DPC) against the New York City Department of Education (DOE or Department),[1] and amended on August 18, 2022 (ADPC),[2] on behalf of the Student, under Case No. 228549, pursuant to the Individuals with Disabilities Education Act (IDEA or the Act) and the New York State Education Law.[3] The DPC asserts that the Student has been denied a free and appropriate public education (FAPE) and denied access to equitable education and services, in that the Department has failed to provide the Student with services developed for the extended 2022-2023 school year in a Individualized Education Program (IEP) on June 14, 2022 for the summer months and an Individualized Education Services Program (IESP) developed on the same day for the rest of the school year.[4] The DPC further alleges that the June 14, 2022 recommendation for special education teacher support services (SETSS) in a group rather than as an individual service does not allow for educational progress and there is inconsistent with a FAPE.[5]
The Parent requests in the ADPC that the Department order the implementation of services as recommended in the June 14, 2022 IEP and IESP, with the following modifications: 10 periods per week of SETSS in Yiddish, with the modification that it be provided as a one-to-one (1:1) service and not in a group, and the further modification that it be paid to a provider of the Parent’s choosing at an enhanced rate; counseling in Yiddish for 30 minutes once per week (1x30) in a group; hearing education services (HES) (3x30)[6] in Yiddish, 1:1, with the modification that it be paid to a provider of the Parent’s choosing at an enhanced rate; physical therapy (PT) (2x30) in English, 1:1; speech-language therapy (SLT) (2x30) in Yiddish, 1:1, and (2x30) in Yiddish, in a group, with the modification that all SLT be paid to a provider of the Parent’s choosing at an enhanced rate; occupational therapy (OT) (2x30) in English, 1:1; daily used of hearing assistive technology (AT), 1:1; and a full-time Oral Transliterator, with the modification that it be paid to a provider of the Parent’s choosing at an enhanced rate.[7]
Procedural History
I was appointed the impartial hearing officer (IHO) over this matter on July 19, 2022. On August 10, 2022, a pre-hearing conference was held, and I issued a Pre-Hearing Conference Summary and Order on August 24, 2022.[8] I issued scheduling orders on September 30, 2022, November 16, 2022, November 28, 2022, and on December 27, 2022.[9] I also I issued Orders of Extension on November 16, 2022, November 27, 2022, and December 27, 2022.[10] The merits hearing was held before me on [REDACTED] and on [REDACTED],[11] wherein all of the exhibits were admitted into evidence.[12] The Department did not offer witnesses, while the Parent presented three witnesses, the SETSS Provider Agency’s Administrator, the Speech-Language Pathologist, and the Parent.[13] This decision now follows.
Findings of Fact
The following is not in dispute. The Student is [REDACTED] years old and attends the Private School for the 2022-2023 school year.[14] He has been classified by the Committee on Special Education (CSE) as a student with a Hearing Impairment.[15] He has shown significant difficulty and delays in receptive language, expressive language, attention, concentration, gross motor skills, sensory processing, and socio-emotional skills.[16] He was born with “bilateral ear pit” with “bilateral sensorineural hearing loss” and “has had a surgery to... insert P[ressure ]E[qualizer] tu[b]es in his ears.”[17] He has been diagnosed with laryngomalacia and sleep apnea, and he has shown signs of Brachio-oto-renal syndrome, which affects the ears, neck, and kidneys.[18]
In the June 14, 2022 IEP and IESP, the Student was classified by the Committee on Special Education as a student with a Hearing Impairment.[19] The evaluative materials reviewed by the IEP team noted that whereas students without hearing challenges “learn by osmosis[,]” that is they “acquire knowledge by observing their environment and absorbing the events around them[,]” the Student “exhibits unusual difficulty in this realm” because he “has difficulty overhearing conversation[s] and does not attend to information that is not directly addressed to him.”[20] A student “with hearing loss may hear that someone is speaking but their brain does not process the information and relegates it as background noise” and they “do[] not generalize information from one environment to other[,]” which mean that in the classroom, “each tidbit of information needs to be taught separately” and a student has to be “trained to observed [the] environment and adjust... actions according to [the] surroundings.”[21] In addition, “[h]is meta-cognition skills are poor[,]... [h]is processing speed is delayed” and he has to “follow multi-step directions” and “be prompted by his team, via [an] FM system, to stay on task, check his work, listen to directions being issued during the task and to stay within his personal space.”[22]
On the above findings, the CSE recommended 10 periods per week of SETSS in Yiddish, in a group; SLT (2x30) in Yiddish, 1:1, and (2x30) in Yiddish, in a group; counseling in Yiddish (1x30) in a group; OT (2x30) in English, 1:1; PT in English (2x30), 1:1; HES) (3x30) in Yiddish, 1:1; daily AT, 1:1; and a full-time Oral Transliterator.[23] These services were to be offered for the 12-month extended school year.[24]
Department’s Case In its opening statement, the Department’s Representative stated that the DOE “is not contesting the services that in the mandated program and the... IEP and the IESP” but also that “[t]here’s not dispute in the services... at least from the Department’s perspective, the issue in this hearing is... whether some of the rates sought by the parent and... some of the providers in this case are excessive.”[25] As for its case-in-chief, the Department relied upon its six exhibits, which included a classroom observation, an educational progress report, an OT progress report, the June 14, 2022 IEP and IESP, and prior written notice that reiterates the list of services recommended in the IEP and IESP.[26]
Parent’s Case The Parent contends that the Department failed to offer the Student a FAPE and equitable services in recommending SETSS as a group rather than as an individual service, and in failing to provide all of the services listed in the June 14, 2022 IEP and IESP, which left the Parent with no choice but to find providers for SETSS, HES, SLT, and the oral transliterator at enhanced rates.
SETSS Provider Agency Administrator
As her first witness, the Parent presented the Administrator of the SETSS Provider Agency, who testified as follows. The Administrative holds a Bachelor’s degree in Speech, has over 600 hours of training in speech and psychology, and has been an oral transliterator for approximately 15 years.[27] The Agency provides individual instructors who are “trained oral transliterators as well as Special Education Teacher Support Services” providers “for students with hearing-impairments.”[28] The specific oral transliterator assigned to the Student attends an annual two-to-three day training on effective transliteration skills ad practices, and is supervised by a licensed speech therapist who specializes in students with hearing impairments, as well as by the Administrator.[29] The supervisors make routine visits to the schools where students receive their services, to make observations and to speak with teachers and other related services providers to ensure continuity of transliteration services.[30]
The Agency administers 10 hours of SETSS per week for the Student through a New York State certified special education teacher who also holds a bilingual Yiddish extension.[31] They decided that the Student should be provided SETSS as a 1:1 service rather than in a group, “given both his delays and his hearing impairments.[32] I note here that in the SETSS instructor’s report, she writes, after reviewing the Student’s progress and performance, “[i] [wa]s recommended that he receive special education services, 10 hours a week on a one-to-one ratio.”[33] The Administrator further testified as follows. The oral transliterator and the SETSS instructor both communicate regularly with the Student’s Speech-Language Pathologist and HES provider, “to ensure that the providers are all on the same page and they are all following appropriate goals.”[34] The Agency charges $150 per hour for SETSS and $80 per hour for oral transliteration services.[35] Their charges incorporate the amounts they pay the individual instructors and providers, as well as taxes, supervision, training, supplies and materials, and other administrative costs.[36]
On cross-examination and upon further questioning, the Administrator testified as follows. The SETSS instructor is costs the Agency $85 per hour plus approximately another ten percent for taxes.[37] The rest of the overhead includes supervision, training, and other overhead costs, including interest on loans that they have had to take for previous years when the Department was behind in paying for other students, and the loans have interest rates up to 34 percent.[38] They pay $45 per hour to the oral transliterator plus around percent in tax.[39]
The Student worked with a different oral transliterator over the summer than the one described in the affidavit, and that transliterator also went through the comprehensive training the Agency pays for its instructors and providers.[40] The Student also worked with a different SETSS instructor during the summer than described in the affidavit, and that instructor is a New York State certified teacher who hold a Master’s degree in special education.[41] The Agency has two supervisors (besides the Administrator) who are speech-language services providers, one of whom happens to be the Student’s Speech-Language Pathologist, but she is not the person supervising the work of the SETSS instructor or the oral transliterator for the Student.[42] The Student is provided with an oral transliterator on school days, which at the Private School are from 9:00 a.m. to 3:00 p.m. Sundays through Thursdays, and from 9:00 a.m. to 12:00 p.m. on Fridays.[43]
Speech-Language Pathologist The Parent produced the Student’s Speech-Language Pathologist, who testified as follows. She has two Master’s degrees, in Speech and Language, and in Deaf Education, and her training has focused on hearing loss and education.[44] She is a certified Teacher for Speech-Language Disabilities and holds additional certificates as a Speech-Language Pathologist, as an educator for the Deaf and Hard of Hearing, and a bilingual extension in Yiddish.[45] She is the founder and owner of the Hearing Education Agency,[46] which provides both SLT and HES.[47]
The Pathologist has worked with the Student for three years, and provides him with training and instruction with respect to “how to pay attention, how to respond verbally, how to increase his play repertoire, and how to act age appropriately with his peers[,]” all “things [that] do not come naturally to [him] without explicit instruction[.]”[48] He cannot engage in “incidental learning, the way that hearing children do. Due to his hearing loss, he needs to be explicitly taught skills in a 1:1 setting.”[49] The Student did not receive HES during the 2022 Summer months, and the Pathologist has been providing the Student with both HES and SLT since September 2022.[50] SLT focuses “on the oral motor positioning and articulation of words, where Hearing Education us[es] auditory training skills... the focus during hearing education services is on the student’s hearing skills, rather than the articulation of speech.”[51] HES also includes instruction on the use and care of the Student’s hearing aids and his FM unit.[52] Her rates are $150 per 30-minute session for SLT and $150 per 30-minute session for HES.[53] Both of these rates are competitive for such service being taught bilingually and with a focus on the hearing impaired.[54]
On cross-examination and upon further questioning, the Pathologist testified as follows. She is qualified in HES through her Masters’ degree in Deaf Education, having over 200 hours of training and certificates in deaf education, and having been a speech-language pathologist for over 10 years.[55] Her rate was based upon what is charged by one other SLT/HES provider that she knows, as “[i]t is a very unusual combination to go through so many years of schooling.”[56] Before the current school year, she charge $125 per 30-minute session but her rate went due to additional training and a cost of living adjustment.[57] She does not bill for the work she performs in preparation of each HES session, including “review[ing] his listening patters” to see if he can go “to the next listening level” as well as “word and sentences... regarding [his] auditory training” and “contact[ing] teachers [to] find out the main points and the new vocabulary of lessons that he is going to have[.]”[58]
Parent The Parent also testified, as follows. There is a family history of hearing loss, so she had the Student tested when he was 18 months old.[59] He tested positive for hearing loss and began using hearing aids at three years old.[60] The DOE recommended an oral transliterator beginning with the 2021-2022 school year, and the “service was a lifesaver for “the Student.[61] The transliterator “is someone who [is] by [the Student’s] side to mouth the words, and use other strategies and techniques to make sure he hears what is happening in class.”[62] The DOE has not provided the Student with a SETSS provider, an oral transliterator, a HES for the 12-month 2022-2023 school year or, for the ten-month school year, a SLT provider.[63] She called 20 SETSS providers off the DOE provider registry but none could help; some “did not answer the phone, some were not available, and some did not accept the DOE rate (despite being on the DOE list).”[64] She therefore entered into an agreement with the SETSS Provider Agency for SETSS and oral transliteration services for the 2022-2023 school year.[65] She understands that the Agency bills $150 per hour for SETSS and $80 per hour for oral transliteration, and that if her case against the Department is unsuccessful, they will bill her directly for these services.[66] She also entered into an agreement with the Hearing Education Agency for the Speech-Language Pathologist to administer SLT and HES to the Student.[67] She understands that the Hearing Education Agency bills $150 per half-hour session of SLT, and $150 per half-hour session of HES, and that if her case against the Department is unsuccessful, they will bill her directly for these services.[68]
Credibility The exhibits in evidence were detailed, comprehensive, and consistent. The witness testimony was likewise detailed and consistent with the exhibits and the allegations in the DPC. Moreover, the DOE offered no evidence to rebut or otherwise challenge their veracity. I therefore find all the exhibits and witness testimony credible, with one exception.
The SETSS Provider Agency Administrator signed an affidavit on November 3, 2022, that states, in part, “[w]e provide approximately 38 Hours [sic] per week of Oral transliterator services from July 5, 2022, to June 30, 2023, for a total of approximately 43 weeks.”[69] At the hearing, however, the Administrator testified that the transliteration services are provided on school days at the Private School, which has hours between 9:00 a.m. and 3:00 p.m. (six hours) Sunday through Thursday, and between 9:00 a.m. and 12:00 p.m. (3 hours) on Fridays.[70] This totals 33 hours per week, and nothing was offered to explain any additional transliteration services. Given that the hearing testimony detailed and explained the Student’s actual school hours, while the reference to “approximately 38 hours” in the affidavit was not broken down or otherwise clarified, I give more credit to the Administrator’s hearing testimony and therefore find, as a matter of fact, that the maximum weekly hours of oral transliteration provided to the Student for the 2022-2023 school year has been and is 33 hours. With respect to the remaining evidence, the weight afforded each piece and the impact it has on my determinations will be reflected in the analysis.
Legal Framework The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[71] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP or IESP.[72] When the program is developed in New York City, a FAPE requires the DOE to both comply with the procedural requirements set forth in the IDEA, and recommend a placement and program that are reasonably calculated to enable the student to receive educational benefits.[73]
If a procedural violation is alleged, courts and IHOs may find that a student did not receive a FAPE if the procedural inadequacies: (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits.[74] In general, however, the decision should be determined on substantive FAPE grounds,[75] that is, whether the school district “provid[ed] personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”[76]
Substantively, school districts must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs.[77] The IDEA, however, confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools.[78] Under State law, parents who have privately enrolled their child in a nonpublic school may nonetheless seek educational "services" for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made.[79] Then, the district of location's CSE must review the request and "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]."[80] The resulting recommended program includes “equitable services” for the student in the private placement under this process, which is known as “dual enrollment.”[81]
If a dispute arises between a parent and a school district over the provision of equitable services under an IESP, review may be obtained via an impartial due process hearing, as called for by the IDEA.[82] The remedies available for a school district’s failure to provide appropriate equitable services under dual enrollment is similar to the remedy for a school district’s failure to provide appropriate services under the IDEA.[83] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act,”[84] and that damage awards are not available under the IDEA.[85] An IHO “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[86] In crafting a remedy for an equitable services matter, I am mindful that, regardless of any deficiencies in the Parent’s justification for a particular rate paid to a provider, the Department is nevertheless obligated to fund the services, as holding otherwise would countenance the denial of FAPE.
Analysis
Under the IDEA and the NY State Education Law, school districts have the burden of proof that a FAPE has been provided to the student, except that where tuition reimbursement is sought, the parent has the burden of proof with respect to the appropriateness of the parent’s chosen educational placement.[87] I must, therefore, determine whether the Department met its burden to demonstrate that its offered program was reasonably calculated and implemented to provide this Student with educational benefits.
The June 14, 2022 IESP recommends SETSS ten times per week, a full-time oral transliterator, HES, SLT, counseling, OT, PT, and AT. The Department does not dispute the Parent’s assertion that all eight of these services were recommended. The Department’s only position at the hearing was that the Parent’s should not receive enhanced rates for services. This is important, because in addition to the issue of implementation at particular rates, the Parent alleged that the Department denied the Student a FAPE by recommending SETSS in a group rather than as a 1:1 service.[88] At the hearing, the Department offered no evidence, via testimony, exhibit, or otherwise, to explain or justify, consistent with its burden of proof,[89] the basis for recommending SETSS as a group service. The Parent, on the other hand, offered the report of the SETSS instructor, which detailed why the Student’s unique constellation of hearing impairments and delays rendered is difficult for the Student to understand what is being taught, and why it was thus recommended that a SETSS instructor work with the Student individually.[90] On this record, I conclude that the Department failed in its burden to prove that the recommendation of group SETSS offered the Student a FAPE, and find for the Parent with respect to the need for 1:1 SETSS for the 2022-2023 school year.
As for the implementation of services, the Parent alleges that she was not given service providers for SETSS, oral transliteration, HES, or SLT, and that she had no choice bus to find providers for the Student, all of whom charge enhanced rates. At the hearing, the Department offered no evidence that it assigned or otherwise offered the Parent these providers for the 2022-2023 school year, which left it to the Parent to find providers.
The Department is responsible for implementing the programs it recommends in IEPs and IESPs, and it has been held that the Department may not effectively compel the Parent to resort to self-help in obtaining a SETSS provider.[91] Such a “de facto delegation from the district to the parent of the obligation to find a SETSS provider... at an acceptable rate is manifestly unreasonable,”[92] and a violation of State law.[93] The DOE thus failed to implement the IESP, which constitutes a denial of FAPE.[94] I find that this denial extends to HES, SLT, and oral transliteration as well, given that the Department did not dispute that it failed to find or offer providers for these services, notwithstanding that the CSE recommended them all in the IESP.
As to the remedy, however, the inquiry has not ended. Although the Department chose to not present a case, “an outright default judgment awarding any and all of the relief requested without question is a disfavored outcome.”[95] This would be so “even where the district’s conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious.”[96] Moreover, the State Review Office (SRO) has held that when, as here, the parent has not already paid the SETSS provider, and seeks direct funding rather than reimbursement, the “matter is in a subset of more complicated cases in which the financial injury to the parent and the appropriate remedy are less clear.[97] Because the Parent had to find the providers on her own and because “caselaw supports reimbursement and direct remedies in a unilateral placement case,” the SRO has determined that the question of whether a provider should be directly paid is somewhat similar to the Burlington/Carter framework, which “forecloses any complete disavowal of the parent’s burden of production and persuasion related to the private, unilateral services obtained by the parent.”[98] Thus, in a case such as this, where the central issue is whether third-party providers selected by a parent should be remunerated with an enhanced rate over what the Department normally pays, the Parent’s evidence must be scrutinized, consistent with my obligation and equitable authority to ensure that the remedy “be appropriate in light of the purpose of the Act.”[99] The evidence therefore must show that the providers’ rates are reasonable and appropriate under the circumstances.
The factors that have been found relevant to the reasonableness of a rate include: the Provider’s explanation of the rate, including its costs and the qualifications of its instructors[100]; the value that specialized certification, such as a bilingual extension, adds to instruction[101]; for SETSS, the Parent’s efforts to locate a DOE-approved SETSS provider from a list provided by the Department to the Parent[102]; and whether the Parent directly paid the provider or is contractually obligated to pay the Provider in the event the Department is not ordered to fund the service at the requested rate.[103] I will therefore determine, in light of these factors, whether the requested rates are unreasonable.[104] Finally I will consider when the Parent notified the Department of the enhanced rate claim, because this establishes the first date the DOE would have had an opportunity to modify its offered rates for services in light of the Parent’s claims.[105]
SETSS and Oral Transliterator The SETSS Provider Agency’s Administrator explained the basis for the $150 per hour rate for SETSS and the $80 per hour rate for oral transliteration.[106] More than half of the rate goes to the independent instructors, including taxes, and the rest covers training and supervision, supplies and materials, and other office administrative costs, including the payment of high interest rate loans the Agency had to take out to pay their instructors during times that DOE was not paying the Agency.[107] As for the qualification of the instructors, the Student’s SETSS instructor is a certified special education teacher who also holds the bilingual certification-extension.[108] The oral transliterator assigned to the Student attends an annual two-to-three day training on effective transliteration skills ad practices, and is supervised by a licensed speech therapist who specializes in students with hearing impairments, as well as by the Administrator.[109] I find the rates sufficiently explained, and the qualifications firmly established.
The Parent explained the efforts she made in trying to find a qualified SETSS provider from the Department’s registry, with at least 20 other providers to no avail.[110] Finally, she signed a contract on August 23, 2022, with the Agency that made clear her financial responsibility to pay for the SETSS and oral transliteration services if she were unsuccessful in her claims against DOE.[111] All of these factors weigh in favor of granting the rates requested for these services, except for the date of the contract. The 12-month school year begins in July; therefore, to the extent that the Parent seeks services for the entire extended school year, I find that the Department shall not be responsible for the full rate requested before August 23, 2022. I find that it should be reduced commensurate with the qualification, Agency costs, and parental efforts factor favoring the Parent for this period, but not as to the contract factor. Therefore, consistent with my equitable authority, I find that the requested rates should be reduced by 25% for this period, resulting in an award for SETSS of $112.50 per hour before August 23, 2022, and $150 beginning on August 23, 2022, and $60 for oral transliteration services before August 23, 2022, and $80 per hour beginning on August 23, 2022.
HES and SLT The Speech-Language Pathologist explained the basis for her rate of $150 per half-hour each for HES and SLT. She did not describe her costs of overhead but she does run a business as the owner and operator of the Hearing Education Agency. She is clearly very qualified, having multiple Masters’ degrees and four certifications, all related to the Student’s needs.[112] Moreover, I credited her testimony that her rate reflect that she provides bilingual instruction and that she is among a very select few who have extensive education and training in both speech and language pathology, and in educating hearing impaired students.[113] Finally, she explained in detail the additional time she puts in for preparation for each session for which she is not paid.[114]
The contracts that the Parent signed include the language that the Parent must pay for HES and SLT services that the Department is not ordered to pay.[115] Like the SETSS Provider Agency’s contract, however, the contracts with the Hearing Education Agency/Speech-Language Pathologist were not signed before the beginning of the extended school year; there were, in fact, signed on September 1, 2022.[116] I find, under these circumstances that the rates should be reduced commensurate with the qualification, business costs, and parental efforts factors favoring the Parent for this period, but not as to the contract factor. I therefore will impose the same restriction on the rates that I have with respect to SETSS and oral transliteration services, and I find that the Department shall not be responsible for the full rate requested before September 1, 2022. Instead, consistent with my equitable authority, I find that the requested rates should be reduced by 25% for those period, resulting in an award for HES of $112.50 per half-hour before September 1, 2022, and $150 beginning on September 1, 2022, and $112.50 for SLT services before September 1, 2022, and $150 per hour beginning on September 1, 2022.
The last factor to consider is when the DPC was filed, in this case, July 5, 2022.[117] Given that the New York State school year begins on July 1 every year, and taking notice that this was a Friday and that July 4, 2022 was a national holiday, I find that the DPC was timely filed, and will not negatively affect the award in this matter.
Decision and Order
It is hereby ordered, that the New York City Department of Education (DOE) shall provide and fund Special Education Teacher Support Services administered in Yiddish to the Student by a provider of the Parents’ choosing, at no more than ten (10) sessions per week, individual (1:1) service, for the 12-month 2022-2023 school year, less any amounts paid under pendency, at a rate of no more than $112.50 per hour for the period from the beginning of the 12-month school year to August 22, 2022, and $150 per hour for the period beginning August 23, 2022 to the end of the extended school year, with such payment to be made within thirty (30) days of a submission to the DOE of any invoices for such services, together with an affidavit attached to each invoice attesting to the provision of the SETSS administered to the Student for the period covered by each invoice, up to the end of the 12-month 2022-2023 school year; and, it is further
Ordered, that DOE shall provide and fund Oral Transliteration services administered to the Student by a provider of the Parents’ choosing, at no more thirty-three (33) hours per week, individual (1:1) service, for the 12-month 2022-2023 school year, less any amounts paid under pendency, at a rate of no more than $60.00 per hour for the period from the beginning of the 12-month school year to August 22, 2022, and $80.00 per hour for the period beginning August 23, 2022 to the end of the extended school year, with such payment to be made within thirty (30) days of a submission to the DOE of any invoices for such services, together with an affidavit attached to each invoice attesting to the provision of the services administered to the Student for the period covered by each invoice, up to the end of the 12-month 2022-2023 school year; and, it is further
Ordered, that DOE shall provide and fund Hearing Education Services administered to the Student by a provider of the Parents’ choosing, at no more than three (3) sessions per week, thirty (30) minutes per session (3x30), individual (1:1) service, for the 12-month 2022-2023 school year, less any amounts paid under pendency, at a rate of no more than $112.50 per half-hour session for the period from the beginning of the 12-month school year to August 31, 2022, and $150 per half-hour session for the period beginning September 1, 2022 to the end of the extended school year, with such payment to be made within thirty (30) days of a submission to the DOE of any invoices for such services, together with an affidavit attached to each invoice attesting to the provision of the services administered to the Student for the period covered by each invoice, up to the end of the 12-month 2022-2023 school year; and, it is further
Ordered, that DOE shall provide and fund Speech-Language Therapy administered to the Student by a provider of the Parents’ choosing, at no more than two (2) sessions per week, thirty (30) minutes per session (2x30), individual (1:1) service, and an additional (2x30) sessions in a group, with all four weekly sessions in Yiddish, for the 12-month 2022-2023 school year, less any amounts paid under pendency, at a rate of no more than $112.50 per half-hour session for the period from the beginning of the 12-month school year to August 31, 2022, and $150 per half-hour session for the period beginning September 1, 2022 to the end of the extended school year, with such payment to be made within thirty (30) days of a submission to the DOE of any invoices for such services, together with an affidavit attached to each invoice attesting to the provision of the services administered to the Student for the period covered by each invoice, up to the end of the 12-month 2022-2023 school year; and, it is further
Ordered, that the DOE shall provide for counseling, administered to the Student in Yiddish, (1x30) in a group, for the 12-month 2022-2023 school year; and, it is further
Ordered, that the DOE shall provide for occupational therapy, administered to the Student in English, (2x30) as an individual (1:1) service, for the 12-month 2022-2023 school year; and, it is further
Ordered, that the DOE shall provide for physical therapy, administered to the Student in English, (2x30) as an individual (1:1) service, for the 12-month 2022-2023 school year; and, it is further
Ordered, that the DOE shall provide for daily hearing assistive technology for the Student, as an individual (1:1) service, for the 12-month 2022-2023 school year.
So Ordered.
Dated: [02/07/2023]
Richard J. Zeitler, Jr. (signed electronically)
Impartial Hearing Officer
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 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.
DISTRICT EVIDENCE
Exhibit
Title
Date
Pages
1
Classroom Observation
02/26/2020
1
2
Educational Progress Report
02/2022
10
3
Occupational Therapy Progress Report
05/31/22
3
4
Individualized Education Services Program (IESP)
06/14/22
15
5
Individualized Education Program (IEP)
06/14/22
27
6
Prior Written Notice
06/22/22
4
PARENT EVIDENCE
Exhibit
Title
Date
Pages
A Impartial Hearing Request 07/05/2022 3
B Findings of Fact and Decision 05/09/2022 28
C Individualized Education program (IEP) 06/21/2021 28
D Individualized Education Program (IEP) 06/14/2022 20
E Individualized Education Services Program (IESP) 06/21/2021 14
F Individualized Education Services Program (IESP) 06/14/2022 15
G Affidavit of Service and Payment 11/03/2022 1
H Educational Progress Report Nov. 2022 10
I [REDACTED] Enrollment Contract 08/23/2022 1
J [REDACTED] Enrollment Contract 09/01/2022 2
K Amended Impartial Hearing Request 08/18/2022 3
L SETSS Call Log Sept. 2022 3
M Hearing Education Progress Report 10/25/2022 5
N Affidavit of Testimony for [REDACTED] Nov. 2022 5
O Affidavit of Testimony for Parent Nov. 2022 5
P Affidavit of Testimony for [REDACTED] Nov. 2022 5
Q Certifications of [REDACTED] 2004 and 2008 2 R [REDACTED] Speech Enrollment Contract 09/01/2022 2 IHO EVIDENCE Exhibit
Title
Date
Pages
I
Pre-Hearing Conferences Summary and Order
08/24/2022
3
II
Scheduling Order
09/30/2022
1
III
Scheduling Order 2
11/16/2022
1
IV
Scheduling Order 3
11/28/2022
1
V
Scheduling Order 4
12/27/2022
2
VI
Interim Order on Pendency
09/30/2022
9
VII
Order of Extension
11/16/2022
1
VIII
Order of Extension 2
11/27/2022
1
IX
Order of Extension 3
12/27/2022
1
Footnotes
[1] See Ex. A.
[2] See Ex. K. As used herein, references to the “DPC” shall incorporate both the DPC and the ADPC, unless specifically denoted otherwise.
[3] See 20 U.S.C. § 1415(f), and New York State Education Law §§ 4404 and 3602-c.
[4] See Exs. D and F, respectively.
[5] See Exs. A-2 and K-2.
[6] The ADPC suggests that the Student should receive HES as 4x30 rather than 3x30, on the grounds that the Student “has never received this service as recommended on the IESP.” Ex. K-2 to K-3. The “Proposed Resolution” section, however requests HES at 3x30. In addition, and as discussed further below, the record demonstrates that the Student has been receiving HES. I therefore will consider an HES award of 3x30 but no more, consistent with the IESP and the proposed resolution in the ADPC.
[7] See Ex. A-2 to A-3 and Ex. K-2 to K-3. I note two dissimilarities between the IEP and the IESP (cf. Ex D-13 and D-14, to Ex. F-11 and F-12). First, the IEP recommends 5 period of SETSS in English language arts (ELA) and 5 periods of SETSS in mathematics, while the IESP recommends 10 periods of SETSS without a reference to any particular class. Second, the SLT is recommended as 4x30 for 1:1 service, while the IESP recommends SLT as 2x30 for 1:1 service, and 2x30 in a group. Given that the IEP summer months have past, and that I awarded payment for those services in an Interim Order on Pendency (see IHO Ex. VI), this decision will incorporated those services spelled out for services during the rest of the school year, as recommended in the IESP.
[8] See IHO Ex. I.
[9] See IHO Exs. II through V.
[10] See IHO Exs. VII through IX.
[11] The transcript will be denoted “Tr.”
[12] See Exs. 1 through 6 for the Department, and Exs. A through R for the Parent.
[13] The three witnesses’ direct testimony was submitted via affidavit, and all three appeared for cross-examination and further questioning.
[14] See Ex. A-1 and A-3, and Ex. K-1 and K-3.
[15] See Ex. D-1 and F-1.
[16] See Ex. A-1 and K-1.
[17] Ex. H-1.
[18] See Ex. A-1 and K-1.
[19] See Ex. D-1 and F-1.
[20] Ex. F-1.
[21] Id.
[22] Id. at F-2.
[23] See Ex. F-12.
[24] See Exs. D and F; see also footnote 7.
[25] Tr. at pp. 15 to 16.
[26] See Exs. 1 through 6.
[27] See Ex. N ¶ 2.
[28] Id. ¶ 4.
[29] See id. ¶¶ 7 to 8.
[30] See id. ¶ 8.
[31] See id. ¶ 9; see also Ex. Q.
[32] Ex. N ¶ 10.
[33] Ex. H-9.
[34] Id. ¶ 12.
[35] See id. ¶¶ 13 and 14.
[36] See id. ¶¶ 13 and 14.
[37] See Tr. at pg. 34.
[38] See id. at pp. 35 to 37.
[39] See id. at pg. 36.
[40] See id. at pp. 38 to 42.
[41] See id. at pp. 51 to 52.
[42] See id. at pp. 53 to 61.
[43] See id. at pp. 61 to 62.
[44] See Ex. P ¶ 2.
[45] See id. ¶ 1; see also Tr. at pg. 104.
[46] See Ex. P ¶ 1.
[47] See id. ¶¶ 4 and 5.
[48] See id. ¶¶ 6 and 9.
[49] See id. ¶ 10.
[50] See id. ¶ 11.
[51] Id. ¶ 12.
[52] See id. ¶ 14.
[53] See id. ¶ 17.
[54] See id.
[55] See Tr. at pg. 89.
[56] Id. at pg. 97.
[57] See id. at pg. 98.
[58] See id. at pp. 101 to 102; see also Ex. P ¶ 16.
[59] See Ex. O ¶ 3.
[60] See id.
[61] See id. ¶¶ 5 and 6.
[62] See id. ¶ 5.
[63] See id. ¶¶ 7 to 9, 14, 16, and 17.
[64] See id. ¶ 9; see also Ex. L.
[65] See id. ¶¶ 9 to 12; see also Ex. I.
[66] See Ex. O ¶¶ 9 and 12; see also Ex. I.
[67] See id. ¶¶ 14 to 17; see also Exs. J and R.
[68] See Ex. O ¶¶ 14 and 17; see also Exs. J and R.
[69] Ex. G-1.
[70] See id. at pp. 61 to 62.
[71] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a) and (b)(2).
[72] C.F.R. § 300.13.
[73] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[74] U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
[75] U.S.C. § 1415(f)(3)(E)i).
[76] Rowley, 458 U.S. at 203.
[77] See 20 U.S.C. § 1412(a)(l)(A); Educ. Law§ 4402(2)(a), (b)(2).
[78] See 34 CFR 300.137(a).
[79] Educ. Law § 3602-c(2).
[80] Educ. Law § 3602-c(2)(b)(l).
[81] See, e.g., Application of a Student with a Disability, Appeal No. 22-024.
[82] U.S.C. §§ 1221e-3, 1415(e)-(f); see also Education Law § 4404(1); 34 CFR §§ 300.151- 300.152; 8 NYCRR §§ 200.5(h)-(l).
[83] See Application of a Student with a Disability, Appeal No. 20-023, citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 (D.Conn. 2017).
[84] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[85] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[86] See East Lyme Bd. of Educ., 790 F.3d at 454.
[87] Education Law § 4404(1)(c); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012). As explained more fully below, SETSS cases have been treated as a hybrid between unilateral placement theory cases, see, e.g., Application of a Student with a Disability, Appeal No. 20-115, and pure compensatory education cases. See, e.g., Foster v. Bd. of Educ. Of the City of Chicago, 611 Fed. App.’x 874, 878-79 (7th Cir. 2015) (compensatory education includes reimbursement for out-out-pocket educational expenses).
[88] See Exs. A-2 and K-2.
[89] See Education Law § 4404(1).
[90] Ex. H.
[91] See, e.g., Application of a Student with a Disability, Appeal No. 21-068.
[92] Id.
[93] See Application of a Student with a Disability, Appeal No. 20-115 (“core instruction provided by a school district must be performed either by teachers who are employees of the district or pursuant to a contract for special education services that a district is specifically authorized by law to enter into,” id.) (internal citation omitted, emphasis added); see also Application of a Student with a Disability, Appeal No. 20-087; and Application of a Student with a Disability, Appeal No. 20-140. In other words, if the DOE is not directly performing core instruction, it should not then be passing the obligation to contract out that instruction onto the Parent.
[94] See Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
[95] See Application of a Student with a Disability, Appeal No. 22-054 (June 22, 2022) at pg. 3 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]).
[96] Application of a Student with a Disability, Appeal No. 22-004.
[97] Application of a Student with a Disability, Appeal No. 20-115 (citing E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 [2d Cir. 2014] [holding that equitable considerations allow for direct payment for tuition where the parents were legally obligated to make payments but had not done so due to a lack of financial resources]).
[98] Application of a Student with a Disability, Appeal No. 20-115 (finding, inter alia, the analysis "unworkable to the extent that the SETSS services can be construed as a state-approved option”).
[99] East Lyme Bd. of Educ., 790 F.3d at 454 (citation omitted).
[100] Application of a Student with a Disability, Appeal No. 20-140 (while “[g]enerally, teachers at a unilateral placement need not be State-certified... there must be objective evidence of special education instruction or supports that are specially designed by... providers... who have reasonable qualifications that are specifically related to the student’s deficits”).
[101] Application of a Student with a Disability, Appeal No. 21-183, at pp. 20-21 (Oct. 29, 2021) (approving compensatory SETSS by a bilingual reading specialist at a rate not to exceed $200 per hour).
[102] See, e.g., Application of a Student with a Disability, Appeal No. 21-096 (May 26, 2021).
[103] See Application of a Student with a Disability, Appeal No. 21-068 (holding that “it is not appropriate equitable relief... to require the district to either reimburse the parent for the costs of SETSS or to directly fund SETSS” where “there is inadequate proof that the parent has expended any funds to pay for SETSS... or is legally obligated to do so”).
[104] See, e.g., Application of a Student with a Disability, Appeal No. 21-138 at pp. 12-13 (Aug. 11, 2021) (determining that “there is no basis for a finding that the rate of $175 was unreasonable”).
[105] See id. (finding further that despite the per se reasonableness of the rate, a reduction in rate that had been imposed by the IHO was justified where the parent did not provide a ten-day notice (TDN), per 20 U.S.C. § 1412[a][10][C][iii] and 34 CFR § 300.148[d][1]). I will contrast this decision, however, to the extent that I do not find a TDN necessary where the parent files a DPC at the beginning of the school year, which provides the same notice and opportunity for the DOE to address how it provides SETSS to the Student as would a TDN.
[106] See Ex. N ¶¶ 13 and 14.
[107] See id. ¶¶ 13 and 14; see also Tr. at pp. 34 to 37.
[108] See Ex. N ¶ 9; see also Ex. Q.
[109] See Ex. N ¶¶ 7 to 8.
[110] See Ex. O ¶ 9; see also Ex. L.
[111] See Ex. I-1.
[112] See id. ¶¶ 1 and 2; see also Tr. at pp. 89 and 104.
[113] Id. at pg. 97; see also Ex. P ¶ 17.
[114] See Tr. at pp. 101 to 102; see also Ex. P ¶ 16.
[115] See Exs. J and R.
[116] See Exs. J-2 and R-2.
[117] See Ex. A-1.