New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 576538 - NYC: 229220

INTRODUCTION

The Parents, through their representative, filed a Due Process Complaint (DPC) on or about July 5, 2022. In the DPC, the Parents allege that the Department of Education (DOE) failed to offer the student a free appropriate public education (FAPE) for the 2022-2023 school year. (Ex. A).

The Parents alleged as follows. The DOE failed to schedule an annual review meeting and develop an Individualized Education Program (IEP) or an Individualized Education Service Plan (IESP) for the Student for the 2022-2023 school year. The DOE failed to evaluate the Student in all areas of suspected disability. The Student requires an extended school year (12-month services) to maintain her developmental levels and prevent significant regression. The Parents fully cooperated with Committee on Special Education (CSE). The DOE must continue to provide the Student with nine (9) 60-minute periods of special education teacher support services (SETSS) and pay her provider at the enhanced rate of $150 per hour.^[1] The DOE must also pay for the Student’s Cuevas Medek Exercise (CME) physical therapy (PT) for five (5) 60-minute sessions at the rate of $300/$400 per hour.

PROCEDURAL HISTORY

I was appointed on July 22, 2022. On August 1, 2022, the DOE agreed that pendency lay in prior unappealed Findings of Fact and Decision (FOFD) 209669 ordering nine (9) 60-minute periods of SETSS for 10 months and five (5) 60-minute sessions of CME-PT for 12 months. (Ex. J). On August 5, 2022 and August 16, 2022, the parties appeared for a pre-hearing conference. On September 13, 2022, both parties appeared for the hearing. At that time, the parties moved for an extension of the compliance period, which I granted. The Parents Representative made an opening statement, and the DOE Representative waived its opening statement. The DOE submitted three exhibits into the record on consent of the Parents but did not seek to introduce any witness testimony. The Parents submitted eleven exhibits into the record on consent of the DOE. Included in the Parent’s evidence was a witness affidavit from Parent 1, which was accepted into the record. The DOE Representative cross-examined the witness. The Parents Representative and the DOE Representative made oral closings. (See September 13, 2022 Transcript).

FINDINGS OF FACT AND DECISION

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

The Student has been diagnosed with REDACTED and REDACTED disorder. (Parent Aff. at ¶ 3). She is classified by the CSE as a student with an Orthopedic Impairment. (Ex. 1-18). According to her most recent IESP dated August 10, 2022, the Student presents with lower extremity weakness, gait disturbance, coordination and motor planning deficits. She has low endurance and needs time to keep up with her peers. Her movements are purposeful but delayed and she has difficulties negotiating through her school environment. The Student is able to follow simple commands, but has difficulty maintaining attention to task and requires tactile cueing to complete functional tasks. The Student demonstrates gross motor skill deficits. (Ex. C-2).

CME-PT is a form of physiotherapy that focuses on improving the gross motor skills of young children with physical disabilities and movement disorders. CME-PT focuses on training movements leading to sitting, standing, and walking, and operates under the assumption that movement affects the development of the brain. (Parent Aff. at ¶ 6). The psychological evaluation submitted as an exhibit by the DOE states “it is highly recommended that [the Student] receive the requested services available to her. Specifically, she should continue to receive the Cuevas Medek Physical Therapy that she currently has and benefits from 5 days per week.” (Ex. 3-6). The Student’s most recent IESP dated August 10, 2022 recommends that she receive nine (9) periods of SETSS per week, individual Speech-Language Therapy (S/L) for 30 minutes two times per week, individual Occupational Therapy (OT) for 30 minutes three times per week, individual PT for 60 minutes five times per week, and individual CME-PT for 60 minutes five times per week on a 12-months basis. (Ex. C-14-15).

For the 2022-2023 school year the Parents have contracted with the CME-PT Provider to provide CME-PT to the Student five times per week, at a rate of $400 per hour for home-based CME-PT and $350 per hour for office CME-PT. (Parent Aff. at ¶¶ 9-12). Parent 1 testified that he brought up the fact that CME-PT is vital for the Student at the August 2022 IESP meeting but that the Parents were never given any other options for CME-PT providers by the DOE. (T. p. 11, L 8-23). Parent 1 testified that the Student wasn’t even able to crawl when she was four years old, but at that point they connected with the CME-PT Provider and “within 90 days he was doing things with her that physical therapists couldn’t do in four and a half years.” (T. p. 12, L 4-8). Parent 1 also stated that the Parents were not given any options by the DOE for the 9 periods of SETSS mandated by the August 10, 2022 IESP. Parent 1 stated that the Parents would be open for to the DOE providing one-on-one SETSS in her school, but were never given any options for SETSS providers. (T. p. 12, L 13-19). The Parents have identified a SETSS Provider that is providing the Student with the mandated nine (9) hours per week of SETSS during the 2022-2023 school year at a rate of $195 per hour (Ex. H), and requests that the DOE fund the SETSS at such enhanced rate. (Parent. Aff. at ¶ 14).

The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services.^[2] A FAPE “consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child ‘to benefit’ from the instruction.”^[3] To establish that DOE offered a FAPE, it must show that (a) the IEP developed by its CSE through the IDEA’s procedures was reasonably calculated to enable the student to receive educational benefits; and (b) DOE complied with the procedural requirements set forth in the IDEA.^[4] An appropriate program requires an IEP to accurately reflect the results of evaluations to identify the Student's needs,^[5] and provide for the utilization of sufficient special education services.^[6] DOE must also provide “an IEP that is ‘likely to produce progress, not regression.’”^[7]

Under New York State Education Law Section 3602-c, students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP from the public-school district in which the nonpublic school is located. The CSE of the district of location must develop an IESP in the same manner and with the same contents as an IEP.^[8] Responsibility for the implementation of services called for in a student's IESP falls on DOE.^[9] Furthermore, although it may be permissible for DOE to include the Parent in the identification of a particular service provided, “it does not follow that the responsibility to redress a parent’s inability to locate a provider is shifted permanently to the parent.”^[10]

Here it is undisputed that the Student requires related services including nine (9) periods of SETSS per week, and individual CME-PT for 60 minutes five times per week on a 12-months basis. (Ex. C-14-15). It is also undisputed that DOE failed make such services available to the Student or identify any other outside providers that could provide the required services at rates lower than the SETSS Provider and CME-PT Provider identified by the Parents. (T. p. 16, L 1-15). Because the DOE failed to implement the IESP by failing to provide the SETSS, PT and CME-PT services recommended therein, it materially deviated from the IESP’s stated requirements and denied the Student a FAPE.^[11]

ORDER

• • NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
• • For the entire 10-month 2022-2023 school year, the DOE shall pay the SETSS Provider for the Student’s nine (9) 60-minute periods of SETSS per week at a rate of $195 per hour, and shall issue payment directly to the SETSS Provider within 30 days of submission of a copy of the invoice;
• • For the entire 12-month 2022-2023 school year, the DOE shall pay the CME-PT Provider for the Student’s five (5) 60-minute sessions of CME-PT per week at a rate of $400 per hour when provided in the Student’s home, and $350 per hour when provided in the CME-PT Provider’s office, and shall issue payment directly to the CME-PT Provider within 30 days of submission of a copy of the invoice.

SO ORDERED.

DATED: October 5, 2022

_Philip Sturges____________

Philip P. Sturges

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.

Footnotes

[1] At the hearing the Parent established that its SETSS Provider required a rate of $195 per hour. (Ex. H). Modification of the remedy sought is permissible at the hearing. See 8 NYCRR 200.5(j)(1)(ii); 20 U.S.C. 1415(f)(3)(B).

[2] U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).

[3] Bd. of Ed. v. Rowley, 458 U.S. 176, 188-189 (1982).

[4] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).

[5] C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 C.F.R. § 300.320(a)(2); 8 NYCRR 200.4(d)(2)(iii).

[6] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of 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.

[7] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.

[8] Id.

[9] NY Educ. Law § 3602-c(2)(a) (The CSE 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.”) See also Application of Student with a Disability, Appeal No. 16-008.

[10] Application of Student with a Disability, Appeal No. 17-034.

[11] Catalan v. District of Columbia, 478 F. Supp. 2d 73, 47 (D. D. C. 2007).