New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 577219 – NYC:

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

[REDACTED] a Minor, by and through his/her Parent(s),

PETITIONER FINDINGS OF FACT AND

DECISION

against Case # 229702 THE NEW YORK CITY Dustin Johnson, Esq. DEPARTMENT OF EDUCATION, Impartial Hearing Officer

RESPONDENT

FINDINGS OF FACT AND DECISION

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”) (20 U.S.C. §§ 1400-1482); the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq. II. Overview – Administrative Procedures

When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][^[1]][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][^[2]]). If disputes occur between parents and school districts related to IESPs, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections of the IDEA and the analogous State law provisions is the opportunity to engage in mediation, present State complaints, and initiate an Findings of Fact and Decision impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]- [4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).

A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]). III. Background and Procedural History

Petitioner is the parent of [REDACTED] (“Student” or “Child”). On October 5, 2022, Petitioner filed an amended 1 Due Process Compliant (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”).

On August 10, 2022, the undersigned Impartial Hearing Officer (“IHO”) was appointed to preside over this case. On August 25, 2022, a Prehearing Conference was held (See Exhibit IHO 5). On November 15, 2022, a status conference was held. After applications to adjourn scheduled disputed hearings based on ongoing negotiations, eventually an impartial hearing on the merits of the DPC was held on January 19, 2023, and January 30, 2023.

By due process complaint notice dated October 5, 2022, the parent alleged that the District failed to offer the student a free appropriate public education (“FAPE”) for the 2022- 2023 school year by generally alleging that the CSE failed to provide and implement a valid and appropriate educational plan for the 2022-2023 school year (see P-C).

As relief, the parent requested, among other things, 8 hours per week of Special Education Teacher Itinerant Services (“SEIT”) Services (Yiddish instruction), Speech Therapy (2x30, 1:1) (Yiddish instruction), and Occupational Therapy (3x30, 1:1), all to be provided on a 12-month basis, all to be funded at an enhanced/market rate, and all providers to be chosen by the parent; a declaratory finding that the school district failed to appropriately evaluate the student in all areas of suspected disability; funding for evaluations in all areas of need (Psychoeducational evaluation and speech therapy evaluation) with evaluators to be chosen by the parent; and a declaratory finding that the school district violated the student’s right to a free and appropriate public education (see P-C). IV. Applicable Standards

The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (20 U.S.C. § 1401(9)). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits (see Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982)). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

Findings of Fact and Decision

However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the district of location 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 (Educ. Law § 3602-c[2]). This is commonly known in New York as the "dual enrollment" statute. "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services 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]" (Educ. Law § 3602c[2][b][1]). 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 (id.). Additionally, section 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404. Thus, under New York State law, an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district for the purpose of receiving special education programming under Education Law § 3602-c, services for which a public school district may be held accountable through an impartial hearing.

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her 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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369- 70 [1985]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). Generally, a remedy for a deficiency in equitable services under State law should be similar to a remedy for deficient services under the IDEA. The burden of proof is on the school district during 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 (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85 [2d Cir. 2012]).

V. Findings of Fact

The student has a disability classification of Other Health Impairment 2 (see Exhibit DOE- 1; P-S-1). The student's eligibility for special education and related services is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).

Findings of Fact and Decision

On March 12, 2020, the Committee on Pre-School Special Education (“CPSE”) convened and determined that the student required 5 hours per week of Special Education Teacher Itinerant Services (“SEIT”) (Yiddish instruction), Speech Therapy (2x30, 1:1) (Yiddish instruction), and Occupational Therapy (2x30, 1:1) (see P-S-1).

On March 15, 2021, the CPSE recommended 8 hours per week of SEIT Services (Yiddish instruction), Speech Therapy (2x30, 1:1) (Yiddish instruction), and Occupational Therapy (3x30, 1:1), to be provided on a 12-month basis (see P-S-2; P-E-1).

On March 18, 2021, the CSE convened and generated an IESP that recommended 6 periods per week of Special Education Teacher Support Services (“SETSS”) in direct service or group service (Yiddish instruction), Speech Therapy (1x30, 1:1 and 2x30, group) (Yiddish instruction), and Occupational Therapy (2x30, 1:1 and 1x30, group) (Yiddish instruction) (see DOE-1; P-S-2). The IESP indicates these services were to begin on 07/01/2021 (implying a 12- month basis), while the parent believes the CSE recommended the services on a 10-month basis only (id.).

The parent agreed with the recommended speech language therapy and occupational therapy services, but disagreed with the recommended SETTS services, as the parent felt the student required 8 hours of support from a special education teacher and that the student required extended school year services (see P-S-2).

The parent provided the DOE with timely notice of the parent’s desire for the student to receive services in compliance with state law (see P-M; P-R; P-S-3).

The parent unilaterally arranged for services and entered into a purported contract 3 with the service provider (see P-I; P-S).

The service provider has been providing various services to the student at various intervals, sometimes at the frequency the parent feels the student needs (see P-J; P-S; IHO-1; IHO-2).

The CSE has not developed a new IEP or IESP for the student for the 2022-2023 school year (see P-S-3). The DOE failed to offer any testimony to substantiate the recommendations contained within the March 2021 IESP.

The Parent failed to offer any testimony or evidence indicating that she had expended funds and was seeking reimbursement, or any testimony or evidence of an inability to pay for services which would necessitate a direct payment remedy. V. Discussion and Analysis

The validity and enforceability of said contract was called into question by subsequent testimony, as further discussed below.

Findings of Fact and Decision

While couched under the guise of the failure of the DOE to provide services for this student, the crux of this dispute boils down to money. An ancillary dispute regarding the appropriateness of SEIT vs. SETSS and whether there is any functional difference between the two has no real bearing on the ultimate outcome of this decision. A determination of whether the student should be entitled to 6 hours or 8 hours per week, however, was ripe for dispute. Each of these quarrels will be addressed in turn. a. SEIT vs SETSS

State law defines SEIT services (or, as referenced in State regulation, "Special Education Itinerant Services" [SEIS]) as "an approved program provided by a certified special education teacher . . . , at a site . . . , including but not limited to an approved or licensed prekindergarten or head start program; the child's home; . . . or a child care location" (Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]; see "[SEIS] for Preschool Children with Disabilities," Office of Special Educ. Field Advisory [Oct. 2015], available at http://www.p12.nysed.gov/specialed/publications/2015- memos/documents/SpecialEducationItinerantServices forPreschoolChildrenwithDisabilities.pdf; "Approved Preschool Special Education Programs Providing [SEIT] Services," Office of Special Educ. [June 2011], available at http://www.p12.nysed.gov/specialed/publications /SEITjointmemo.pdf). In addition, SEIT services are "for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities" (8 NYCRR 200.16[i][3][ii]; see Educ. Law § 4410[1][k]) (emphasis added).

SETSS are not defined in the State continuum of special education services (see 8 NYCRR 200.6). As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district, and unless the parties and the hearing officer take the time to develop a record on the topic in each proceeding it becomes problematic (see Application of the Dep't of Educ., Appeal No. 20-125) 4.

As defined in relevant part by State statute concerning preschool students, a "child shall be deemed a preschool child through the month of August of the school year in which the child first becomes eligible to attend school pursuant to section thirty-two hundred two of this chapter" (Educ. Law § 4410[1][i]; see Educ. Law § 3202[1] [indicating, in part, that a "person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without payment of tuition"]).

In this case, the student turned five years old in April 2021 (see P-S). Consequently, since the student only became eligible to attend public school when she turned five years old in April For example, SETSS has been described in a prior proceeding as "a flexible hybrid service combining Consultant Teacher and Resource Room Service" that was instituted under a temporary innovative program waiver to support a student "in the general education classroom" (Application of a Student with a Disability, Appeal No. 16-056), and in another proceeding it was suggested that SETSS was more of an a la carte service that is completely disconnected from supporting the student in a general education classroom setting (Application of a Student with a Disability, Appeal No. 19-047). 1, she remained a preschool student through August 2021, and a school-aged student thereafter.

Thus, to the extent that the parent or her attorney refer to the individual special education teacher services the student continued to receive as a school-aged student during the 2021-2022 or 2022-2023 school years as SEIT services, it is inconsistent with State regulation and policy for a school district to deliver a service designed exclusively for preschool students to a school-aged student. Additionally, as special education teacher support services—or SETSS—are not defined by State regulations, the special education program identified in State regulation that the student received most closely resembles direct consultant teacher services, which is similar to SEIT services, and is programming delivered by a certified special education teacher (see 8 NYCRR 200.1[m][1]; 200.6[d]).

Based on the above, I find that the student is entitled to SETSS services, not SEIT services. Notwithstanding this determination, nothing in this finding should be interpreted to negate or void the services previously offered to the student under the nomenclature SEIT, as the record supports a finding that the student was provided individual special education teacher services by a certified special education teacher that are functionally equivalent to the CSEs recommendations for SETSS.

b. 6 hours vs 8 hours

The parent does not take issue with the recommendations for Speech Therapy or Occupational Therapy, only the special education teacher services. The DOE contends, without any supporting testimony, that the student is only entitled to 6 hours of SETSS as recommended within the March 2021 IESP. The parent contends that the student should continue to receive 8 hours of SEIT/SETSS services as was previously recommended.

On March 15, 2021, the CPSE recommended 8 hours per week of SEIT Services to be provided on a 12-month basis (see P-S-2; P-E-1). On March 18, 2021, three days later, the CSE generated an IESP that recommended 6 periods per week of SETSS to begin on July 1, 2021 (see

DOE-1; P-S-2).

The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (See Educ. Law § 4404[1][c]).

Here, the DOE failed to offer any testimony or evidence to explain the reasoning behind the reduction in services from 8 hours to 6 hours, and failed to offer any testimony or evidence as to why 6 hours of services were more appropriate for this student as opposed to the 8 hours that was recommended three days prior. 5 A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 1002 (2017). The DOE attempted to offer rebuttal testimony on this issue, but that application was denied by the IHO in a written decision (see IHO-4).

Findings of Fact and Decision

It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under the law, where those documents are rife with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of a fair hearing (see Strain v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner…the petitioner was deprived of a meaningful hearing; see Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D. (1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses; see Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), where in an unemployment compensation proceedings, an administrative law judge properly exercised discretion to exclude hearsay evidence to protect employer’s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement; see Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).”

The only evidence in the record before me is that the student still requires 8 hours of support from a special education teacher (see P-S-2). As such, I find that based on the record before me, the student is entitled to 8 hours of SETSS. Furthermore, I find that the DOEs failure to offer evidence substantiating their recommendations amounts to a concession that the DOE did not offer the student a FAPE. Additionally, I find that the evidence in the hearing record establishes that the District did not convene a CSE meeting or develop an IESP for the 2022- 2023 school year. c. Enhanced Rate

Now to the crux of this litigation; that is, whether the service provider is entitled to the “enhanced rate” they are requesting. For the reasons discussed below, I find that they are not.

Much litigation could be avoided, and innumerable costs saved, if the District complied with its legal obligation and ceased its current practice of encouraging parents to self-cure the District’s failures. Districts cannot deliver special education services called for by their educational programming in an unauthorized manner, due at least in part to the requirements that school officials and employees remain accountable under the statutory and regulatory mechanisms put in place by state and federal authorities (see Application of a Student with a Disability, Appeal No. 20-087; Educ. Law § 3602-c[2][a]; [7][a]-[b]).

Findings of Fact and Decision

Furthermore, the Commissioner of Education has made it abundantly clear, having "repeatedly held that a board of education lacks authority to provide instructional services through an independent contractor" (Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeal of Woodarek, 46 Ed Dept Rep 1, Decision No. 15,422) and this application of State law requiring that 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, has been upheld in the courts (see Bd. of Co-op. Educ. Servs. for Second Supervisory Dist. of Erie, Chautauqua & Cattaraugus Ctys. v. Univ. of State Educ. Dep't, 40 A.D.3d 1349, 1350 [3d Dep't 2007] [noting that the relevant provisions of the Education Law did not provide for instruction by employees of for-profit corporations such as Kelly Services Inc.]; see also Averback v. Bd. of Educ. of New Paltz Cent. Sch. Dist., New Paltz, 147 A.D.2d 152, 154 [3d Dep't 1989] [explaining that "[a]bsent a 'plain and clear' prohibition in statute or decisional law, boards of education are empowered to agree to terms of employment" of a teacher]).

Additionally, in a July 29, 2009, guidance document, the State also clarified that a school district does not have the authority "to provide core instructional services through contracts with nonprofit and other entities" ("Clarifying Information [R]elated to Contracts for Instruction," Office of Special Educ. Mem. [July 2009], available at http://www.p12.nysed.gov/resources/ contractsforinstruction/documents/contractsforinstruction2009.pdf). In response to several questions from the field, the State issued further guidance ("Q and A related to Contracts for Instruction" Office of Special Educ. Mem. [June 2010], available at http://www.p12.nysed.gov/ resources/contractsforinstruction/documents/contractsforinstruction2010covermemo.pdf). 6 The State explained the statutory instances in which school districts were authorized to contract for the instruction of students including Education Law § 305(33) (for supplemental educational services, which section has since been repealed); Education Law § 3202(6) (students that are hospitalized or institutionalized); Education Law §3602-e (approved prekindergarten programs); Education Law §§4401(2) and 4402(2)(b) (special education services with other school districts, BOCES, State-operated and State-supported schools, approved private schools and the State University at Binghamton which are approved by the Commissioner of Education); Education Law § 4401(2)(n) (transition services for students with disabilities in programs such as vocational training programs approved by certain state agencies) (id.). Moreover, the district is required by State law to locate and assign the student's publicly-provided teachers for a dually enrolled student (Educ Law § 3602- c[2][a]).

With the above-described impropriety of the District's current reliance on parents to obtain the services of independent providers to implement SETSS services mandated by an IESP as a backdrop, I note that, in this case, the District did not present any evidence or witnesses to show that it either arranged for or delivered the SETSS services to which it agreed via the March 2021 IESP that the student should receive. Accordingly, as determined above, there is no longer any dispute that the student is entitled to receive 8 hours of SETSS per week and this matter now

The questions and answers guidance draws a distinction between core instruction and instruction that represents a supplemental or additional resource, providing that a district may not contract with private entitles for the former ("Questions and Answers Related to Contracts for Instruction," Office of Special Educ. [June 2010], available at http://www.p12.nysed.gov/resources/contractsforinstruction/qa.html). Findings of Fact and Decision presents itself as a dispute solely as to the rate the District should pay the private provider arranged for by the parent to deliver those services.

As described above, while school districts cannot deliver contracted special education services called for by the CSE's educational programming in an unauthorized manner, due at least in part to the requirements that school officials and employees remain accountable under the statutory and regulatory mechanisms put in place by state and federal authorities, districts can be made to pay for special education services that a parent paid for or has become legally obligated to pay for, a process that is essentially the same as the federal process under IDEA.

Parents who are dissatisfied with their child's education can unilaterally change their child's placement during the pendency of review proceedings and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved if they satisfy a three-part test that has come to be known as the Burlington-Carter test (see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted], cert. denied sub nom., Paulino v. NYC Dep't of Educ., 2021 WL 78218 [U.S. Jan. 11, 2021], reh'g denied sub nom., De Paulino v. NYC Dep't of Educ., 2021 WL 850719 [U.S. Mar. 8, 2021]; see Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] ["Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).

Thus, as a practical matter, this kind of dispute can really only be effectively examined using a Burlington/Carter unilateral placement framework because the administrative due process system was not designed to set rate-making policies for what has grown into a completely unregulated cottage industry of independent special education teachers that parents within the New York City Department of Education District are increasingly reliant upon, an industry that is not authorized by the State in the first place. 7

Accordingly, the parent's request for 8 hours per week of SETSS must be assessed under this framework; namely, having found that the District failed to provide appropriate equitable services, the issue is whether the 8 hours of SETSS constituted an appropriate unilateral placement of the student such that the cost of the SETSS is reimbursable to the parent or, alternatively, should be directly paid by the district to the provider upon proof that the parent has paid for the services or is legally obligated to pay but does not have adequate funds to do so.

As a result, the question of rate is somewhat beside the point as the cost of the SETSS, under the Burlington-Carter test, must be fully reimbursed or directly funded by the 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 costs and an inability to do so. As more fully discussed below, I find that the equitable considerations here do not support the relief requested.

The State Education Department only permits local educational agencies to use teachers and personnel in private settings that are approved by the Commissioner of Education and the State's rate setting unit routinely addresses the issue of establishing local rates that districts may pay such private entities (see http://www.oms.nysed.gov/rsu/).

Findings of Fact and Decision

Here, the appropriateness of the SETSS delivered to the student by the service provider is not seriously in dispute in this matter, as it is the same type of service which the District acknowledged in the March 2021 IESP that it was required to provide. Therefore, I find that the unilateral placement sought by the parent is appropriate.

However, similar to the situation in Application of a Student with a Disability, Appeal No. 20-087, Application of a Student with a Disability, Appeal No. 20-115, and Application of a Student with a Disability, Appeal No. 21-119 , because there is no evidence that the parent has expended any funds towards the services at issue here for which she must be reimbursed, this matter is in a subset of more complicated cases in which the financial injury to the parent and the appropriate remedy are less clear.

The Second Circuit Court of Appeals has held that a direct payment remedy is an appropriate form of relief in some circumstances, and that "[i]ndeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework" (E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 [2d Cir. 2014]; see also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 430 [S.D.N.Y. 2011] [finding it appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, have not done so due to a lack of financial resources]).

Here, the parent is seeking a rate of $197.00 per hour for SEIT/SETSS services and a rate of $225.00 per hour for Speech/Occupational therapy. The hearing record contains evidence and testimony of the existence of a purported written contract between the parent and the agency that is providing the student services, [REDACTED], which, on its face, allegedly indicates that the parent is responsible for the costs of the services not covered by the DOE (see P-I; P-S-4). However, there is also ample evidence and testimony in the hearing record that could lead a reasonable person to conclude that the purported contract entered into between the parent and the service provider is nothing more than an illusory contract and merely a pretextual legal fiction intended to satisfy the requirements of a successful FAPE claim in front of an IHO, rather than a genuine contract unconditionally obligating the parent to pay the service provider at the enhanced rate the service provider is seeking (see IHO-1: reflecting the absence of any specific rate per hour in vendor invoices; see P-I-3: excluding any specific schedule of fees in the actual contract; see also testimony further discussed below). 8

To substantiate her request for an enhanced rate and to prove the existence of a contractual obligation, the parent offered, among other things, the testimony of the Educational Director from [REDACTED], Ms. [REDACTED]. Ms. [REDACTED] testified on camera over multiple days and her demeanor, tone, and eye-contact was observed by the undersigned IHO throughout her testimony. On whole, I find that Ms. [REDACTED] completely lacked credibility. Throughout her self-serving testimony, Ms. [REDACTED] was evasive, An illusory contract is "[a]n agreement in which one party gives as consideration a promise that is so insubstantial as to impose no obligation"—is "unenforceable" (Black's Law Dictionary 370 [9th ed 2009]; see generally Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356, 361, 314 NE2d 37, 357 NYS2d 705 [1974]; Madawick Contr. Co. v Travelers Ins. Co., 307 NY 111, 118, 120 NE2d 520 [1954]). Findings of Fact and Decision contradictory, exhibited a frustrated entitlement, and was dismissive and condescending in her responses. I further find Ms. [REDACTED] to be biased and possessed of a clear business relationship or obvious financial interest in a favorable outcome to this case by virtue of her employment with [REDACTED], which influences her partiality and the credibility I attributed to her testimony.

Decisions of the New York Court of Appeals have recognized that a witness’s partiality for or against a party in the proceeding may be shown to impeach the witness’s credibility. (See e.g. Coleman v New York City Tr. Auth., 37 NY2d 137, 142 [1975] [noting “the relevancy of all facts which bear on the probable partiality” of a witness for impeachment purposes]; Schultz v Third Ave. R.R. Co., 89 NY 242, 248-249 [1882] [“It is always competent to show that a witness produced upon the trial of an action is hostile in his feelings toward the party against whom he is called to testify or that he entertains malice toward that party, and so it has been held in many cases”].) Illustrative examples of partiality recognized by the Court include a witness’s bias in favor of the party calling the witness (see People v Webster, 139 NY 73, 85 [1893] [“bias is always of importance in determining credibility” and noting that bias may arise from family, business or close social relationships]; People v Brown, 26 NY2d 88, 94-95 [1970]); hostility to the party against whom the witness testifies (see Brink v Stratton, 176 NY 150, 152 [1903] [“it was competent to prove the hostility of any or all of these witnesses towards the defendants”]; People v Brooks, 131 NY 321, 325-326 [1892]); or the witness’s interest in the case, personal, financial or other (see People v Jackson, 74 NY2d 787, 790 [1989] [witness who cooperated with prosecutor only after receiving a reduced sentence on a pending charge had an “obvious interest”]; Coleman, 37 NY2d at 142 [“an interest in a cause being a circumstance available for impeachment”]). Furthermore, the credibility of a witness may be impeached by asking the witness on cross-examination about the witness’s bias, hostility, or interest for or against any party to the proceeding and by extrinsic evidence of such bias, hostility, or interest (see Guide to NY Evidence Rule 6.13, Impeachment by Bias, Hostility, Interest).

When asked to account for the absence of a rate per hour or total amount due for services rendered on [REDACTED] invoices, Ms. [REDACTED] testified that [REDACTED] waits for a rate to be determined before completing and submitting invoices (see 1/30/23 Tr. at pg. 16). She further testified that the rate the DOE is charged is based either on what the DOE agrees to pay or what the DOE is ordered to pay, not what [REDACTED] unilaterally and arbitrarily determines to be the enhanced rate (id.).

Additionally, while initially indicating that the parent is allegedly obligated to pay the enhanced rate charged by [REDACTED], Ms. [REDACTED] repeatedly qualified that statement by vaguely testifying that in the event there is an order or agreement for a lesser amount, [REDACTED] meets with the parent to determine how to proceed depending on a variety of factors (id. at pg. 18). Asked for clarity on what she meant by how to proceed, Ms. [REDACTED] explained that she meant “if the parents would pay the difference or if there would be any adjustments made in the child’s program” (id.). Asked to further clarify whether [REDACTED] requires the parent to pay the difference if the DOE pays an amount less than the enhanced rate, Ms. [REDACTED] testified that [REDACTED] does require this “At times, yes, many times” but also that sometimes they do not (id. at pg. 18). Ms. [REDACTED] further attempted to clarify this vague enforcement requirement by testifying that “for the most part, Findings of Fact and Decision they’re responsible to pay.” (id. at pg. 20). Ms. [REDACTED] further testified that if the parent cannot pay the enhanced rate they have contracted for, then [REDACTED] will adjust their rates by decreasing additional supports (such as supervision, resources, materials, curriculum) to decrease expenses for the parent (id. at pg. 19), tweak the program for the parent (id. at 20-21), and that services and supports can be reduced and removed from the student’s program in order to fit within financial parameters (id. at pg. 24). Noticeably absent from the purported contract is any language reflecting these rate reducing or rate eliminating scenarios (see generally P-I), as such language would likely nullify any impression that the contract is enforceable against the parent and further reinforce the illusory nature of this contract.

It should be noted that as Ms. [REDACTED] continued in this line of questioning, she became noticeably flustered and evasive in her responses. I find that Ms. [REDACTED]’s testimony on this line of questioning lacked credibility and called into doubt whether [REDACTED] genuinely has a true contractual arrangement obligating this parent to pay an enhanced rate, or to pay any rate at all. Based on Ms. [REDACTED]’s incredible testimony and the record before me, I find that there is nothing genuinely obligating this parent to pay [REDACTED]’s arbitrarily inflated enhanced rate, or any amount at all.

For the reasons indicated above, the record does not support the conclusion that the parent is genuinely obligated to pay for any of the services provided to her student by the independent service provider or that the parent has suffered any actual harm at this time. Also absent from the record is any evidence that the parent has actually expended any funds to pay for the services provided to the student that she should be reimbursed for. Additionally absent from the record is any evidence that the parent does not have the financial resources to pay for the services and requires a direct pay remedy. Therefore, the equities do not support the relief requested.

As there is inadequate proof that the parent is obligated to pay for the services provided, no proof that the parent has expended any funds to pay for SETSS for the 2022-2023 school year, and no proof that the parent lacks the financial resources to pay for the services already provided, I am not convinced that the dispute regarding the proper amount to be paid to [REDACTED] for educational services already provided to the student during the 2022-2023 school year involves either the parent or student's legal interests. Instead, it is far more likely that the rate dispute is a matter to be resolved between the District and [REDACTED]; but [REDACTED], who has the real financial interest in the outcome of the rate dispute here, is not a proper party to a due process proceeding (34 CFR 300.507[a][1]). Therefore, the remaining rate dispute should properly be addressed in a different forum. It is not an appropriate equitable relief in this due process proceeding to require the District to either reimburse the parent for the costs of SETSS or to directly fund SETSS under the relevant legal standards discussed above.

Notwithstanding the above, remaining unresolved here is still the issue of the rate to be paid for any services that the student is entitled to for the time currently remaining in the 2022- 2023 school year and for which the parent may seek to obtain services from [REDACTED] going forward, the amount the parent may pay for such services herself, and the amount the parent may then seek reimbursement for from the District. Therefore, I will venture into the deep and attempt to resolve the rate issue. For reasons further discussed below, I find that the Findings of Fact and Decision enhanced rate being requested by [REDACTED] is excessive, arbitrary, and unsupported by the record. Therefore, I find that the rate should be reduced on equitable grounds.

Here, without unilaterally disclosing it in good faith, and upon direct questioning by the undersigned IHO, Ms. [REDACTED] conceded that her agency has recently accepted lower rates from the DOE than what is currently being requested as an enhanced rate (see Tr. at pg. 78). Further, the limited data in the record as to the prevailing market rates was provided by the self-serving testimony of Ms. [REDACTED], which, as discussed above, was vague and lacked credibility, and which comes from a biased source with a direct financial interest in a higher rate being the “market rate.” Ms. [REDACTED]’s purported comparison of the rates of a limited group within the entire New York City market provided little detail and no comparison of services between [REDACTED] and the other agencies she surveyed. Thus, the record does not support a finding that the enhanced rate is reasonable.

Additionally, I find that the overhead and additional costs testified to by Ms. [REDACTED] as justification for an enhanced rate are for indirect services that go significantly beyond the scope of direct SETSS services that are provided to the student and beyond the direct services that the student is entitled to receive pursuant to the student’s IESP, and that the only services the student is entitled to receive and that the District should be required to fund, are the 8 hours per week of direct SETSS services and the undisputed related services. Furthermore, Ms. [REDACTED] testified that [REDACTED] is in the habit of adjusting their rates by decreasing additional supports (such as supervision, resources, materials, curriculum) to decrease expenses for the parent (see 1/30/23 Tr. at pg. 19). Such testimony further proves the arbitrariness of the enhanced rate sought by [REDACTED].

Ms. [REDACTED] testified that the student’s current SETSS tutor is paid $100.00 an hour (see 1/19/23 Tr. at pg. 77). Furthermore, given the vagaries in Ms. [REDACTED]’s incredible testimony, coupled with the exclusion of any actual rate per hour in the invoices for services rendered (see IHO-1) and the lack of any rate information in the contract for services (see P-I) and [REDACTED]’s willingness to adjust and decrease the rate as testified to by Ms. [REDACTED], I find that the enhanced rate being sought by [REDACTED] is completely arbitrary and inflated. Furthermore, I do not find Ms. [REDACTED]’s testimony regarding an even higher “enhanced rate” for the other Speech or Occupational therapy service providers to be credible and likewise find that such a rate is arbitrary and inflated.

Crafting an equitable remedy is not an exact science and requires an appropriate level of discretion and reasonable judgment. In order to determine a more objective benchmark to evaluate the fairness of a rate per hour for 1:1 certified special education teacher services in New York City, I refer to the rates determined and published by the New York State Education Department. SEIT is the state approved rate for a certified special education teacher working with a preschool student, contracted through an independent agency. When families contract with an outside provider for SETSS for a school-aged child, they utilize the same type of services. The most recent publicly available New York State SEIT approved rates for preschool students are the approved half hourly rates (last updated January 18, 2023) available at the following link: https://www.oms.nysed.gov/rsu/Rates_Methodology/2022-23SEITRates.html

Findings of Fact and Decision

According to the New York State Education Department’s published rates, the highest approved rate for programs in the community were $55.00 per half hour, which equates to an hourly rate of $110.00 per hour for the 2022-2023 school year. This is more closely in line with the $100.00 an hour amount Ms. [REDACTED] testified her agency pays to the student’s current SETSS tutor, which I find to be a reasonable rate in line with State published rates.

Based on the above, and in view of the parent’s failure to prove the reasonableness of an enhanced rate of $197.00 per hour, and no evidence as to the reasonableness of an even higher “enhanced rate” for Speech/Occupational therapy providers, I find that a rate of $100.00 per hour for both the mandated SETSS and related services is fair, reasonable, and supported by objective evidence.

Going forward, if they have not done so already, both parties should return to using the appropriate CSE planning process called for by State law and the parent should continue to ensure that she adheres to the June 1 deadline for requesting 3602-c services if she intends to place the student in a nonpublic school and seek dual enrollment services.

d. Independent Education Evaluations

In the DPC, Petitioner requests funding for evaluations in all areas of need, including a psychoeducational evaluation and speech therapy evaluation, with evaluators to be chosen by the parent (see P-C). Despite Petitioner’s failure to adequately substantiate this request for relief, an independent examination of the record finds that no relief is warranted.

The IDEA provides parents with a number of procedural safeguards. Among them is the "right . . . to obtain an independent educational evaluation of the child," which in turn means "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question" (34 CFR 300.502[a][1], [3][i]; see 8 NYCRR 200.1[z]). Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense that was sought for additional information]). Guidance from the United States Department of Education's Office of Special Education Programs (OSEP) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, "the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs" (Letter to Baus, 65 IDELR 81 [OSEP 2015]; see Letter to Carroll, 68 IDELR 279 [OSEP 2016]).

The IDEA and state and federal regulations guarantee parents the right to obtain an Independent Educational Evaluation (“IEE”) (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]), which is defined by State regulation as "an individual evaluation of a student Findings of Fact and Decision with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student" (8 NYCRR 200.1[z]; see 34 CFR 300.502[a][3][i]). Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]).

If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although not at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]). Additionally, both federal and state regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]). The Second Circuit Court of Appeals has recently found that, if a district and a parent agree that a student should be evaluated before the required triennial evaluation, "the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs" or "[o]therwise, the parent's disagreement will be rendered irrelevant by the subsequent evaluation" (D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 170 [2d Cir. 2020]).

A review of the hearing record shows that the parent first requested funding for evaluations in the October 2022 due process complaint (see P-C), but also that the parent failed to request funding for evaluations in her testimony (see P-S-4 at p. 42). Assuming the request for funding is still ripe and desired by the parent, such a request shall be denied.

In past decisions, SROs have held that a parent may request a district funded IEE in a due process complaint notice in the first instance (see Application of a Student with a Disability, Appeal No. 19-094). This is not exactly the process contemplated by the IDEA and its implementing regulations (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]), and, in most instances it is likely that a parent would be in a better position to elicit an agreement from the district to fund an IEE if the IEE was requested outside of the more formal context of an impartial hearing. The practice of a parental "due process compliant IEE request" is increasing in frequency and I am not convinced it is permissible for a parent to commence an impartial hearing to seek an IEE at public expense and/or communicate their disagreement with a district evaluation for the first time therein (see Application of a Student Suspected of Having a Disability, Appeal No. 22-105).

Here, the record is devoid of testimony or evidence of any actual dispute regarding evaluations or a request by the parent outside the instant DPC for an independent evaluation. The record is also devoid of testimony or evidence of a specific evaluator the parent is seeking to Findings of Fact and Decision have evaluate their student or the specific costs of such evaluations. Therefore, for the above reasons, funding for independent evaluations is not appropriate and is denied. VII. Conclusion and Orders

In summary, a review of the evidence in the hearing record demonstrates that the District denied the student a FAPE and that the student is entitled to 8 hours of SETSS, as well as other services not in dispute. However, equitable considerations do not support an award of reimbursement or direct payment for services already provided, nor do equitable considerations support the enhanced rate being requested.

By this decision, I decline to order any reimbursement or direct payment for any services rendered prior to the date of this decision on equitable grounds. Although the parent cannot recover for any services rendered prior to the date of this decision under the Burlington/Carter framework based on the lack of evidence presented in this case and having suffered no financial harm, I express no opinion regarding whether the provider, [REDACTED], can nevertheless recover from the District some or all of the costs for services provided in a different, more appropriate legal forum, under another applicable legal theory or cause of action (i.e. quantum meruit, unjust enrichment, etc.).

I have reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the parent’s remaining claims not discussed herein are dismissed with prejudice.

IT IS HEREBY ORDERED that, until the DOE conducts updated evaluations and generates a current IESP, the student is entitled to, on a 12-month basis, up to 8 hours per week of Special Education Teacher Support Services (“SETSS”) in direct service or group service (Yiddish instruction), Speech Therapy (1x30, 1:1 and 2x30, group) (Yiddish instruction), and Occupational Therapy (2x30, 1:1 and 1x30, group) (Yiddish instruction), at a rate not to exceed $100.00 per hour for all services provided from the date of this decision going forward. In no event shall the parent be entitled to reimbursement or direct funding for services provided prior to the date of this decision, or to a rate in excess of $100.00 per hour for any services provided from the date of this decision going forward, unless the parent and the District independently agree otherwise.

IT IS FURTHER ORDERED that, if the Parent is seeking reimbursement for the services provided from the date of this decision going forward, the Parent is to submit proof of payment for the Parent’s expenditures for private educational services. Such proof shall come in the form of a cancelled check, credit card statement, bank statement, or other reasonable form of proof acceptable at the discretion of the District, so long as such proof is accompanied by a notarized invoice for services rendered in compliance with the rate and hourly limitations contained herein. In no event shall the parent be entitled to reimbursement or direct funding for services provided prior to the date of this decision, or to a rate in excess of Findings of Fact and Decision $100.00 per hour for any services provided from the date of this decision going forward, unless the parent and the District independently agree otherwise.

DATED: SO ORDERED

2/21/2023 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

Findings of Fact and Decision

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 proceedings 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.

Findings of Fact and Decision

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

I, Dustin Johnson, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.

DATED: CERTIFIED BY

2/21/2023 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

EXHIBITS

Parent Date Title Number Exhibit of Pages P-A 7/1/2022 Impartial Hearing Request 3 Findings of Fact and Decision P-C 10/05/2022 Amended Impartial Hearing Request 2 P-E 03/15/2021 Final Notice of Recommendation Form 1 P-F 10/25/2022 Provider Outreach Log – SETSS 3 P-G 10/20/2022 Provider Outreach Log – Occupational Therapy 1 P-H 10/19/2022 Provider Outreach Log – Speech Language Therapy 1 P-I June/July 2022 Enrollment Contract 3 P-J 11/28/2022 Affidavit of Services 1 P-K 11/23/2022 Progress Report 6 P-L June 2022 Letter 1 P-M 05/31/2022 Letter 1 P-N Undated Provider Certification – SETSS 1 P-O Undated Provider Certification – Occupational Therapy 1 P-P Undated Provider Certification – Occupational Therapy 1 P-Q Undated Provider Certification – Speech Language Therapist 1 P-R 05/31/2022 Email 2 P-S 1/24/2023 Affidavit of Parent 4 P-T 2/17/23 Summation 14 DOE Date Title Number Exhibit of Pages DOE-1 3/18/21 2020-2021 IEP 17 DOE-2 1/05/2021 PWN (Notice of Recommendations) 5 IHO Exhibit IHO-1 Various [REDACTED] Invoices 16 IHO-2 Various Session Notes 3 IHO-3 Undated Teach System 1 IHO-4 01/20/2023 Ruling on Rebuttal Witness 12 IHO-5 08/25/2022 Prehearing Conference Summary and Order 9 IHO-6 01/19/2023 Subpoena 1

Findings of Fact and Decision

Footnotes

[1] A substantially similar DPC was initially filed on July 1, 2022 (see P-A).

[2] Findings of Fact and Decision