New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 577815 - NYC: 230037

FINDINGS OF FACT AND DECISION

Case Number: 230037

Student’s Name: REDACTED (hereinafter “the student”)

School District: N.Y.C. Dept. of Ed., District REDACTED

Impartial Hearing Officer: Leah Martin, Esq.

Date of Filing: 07/05/2022

Hearing Requested by: Parent

Date of Hearing: 10/03/2022

Record Close Date: 10/06/2022

Date of Decision: 10/12/2022

BACKGROUND AND PROCEDURAL HISTORY

This matter concerns the parents’ (“Parents”) challenge, in a due process complaint (“DPC”) filed on July 5, 2022, under the Individuals with Disabilities Education Act (hereinafter, IDEA”), 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., and Article 89 of the New York State Education Law, Educ. Law §4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. §200.5 et seq., for a student with a disability who is parentally placed in a non-public school. I was appointed to hear the matter on August 25, 2022.

The student (“the student”) here is a REDACTED year old who is classified as having a speech and language impairment. (Parent Ex. A-2). The student was parentally placed at a private school (“Private School”) for the 2022-23 school year. (Parent Ex. A-1). No IESP was developed or implemented for the current school year, so Parents filed this due process complaint. (Parent Ex. A).

A prehearing conference was held on August 29, 2022, and a hearing on October 3, 2022. The case was scheduled for a pendency hearing on September 7, 2022. However, the parties agreed to sign a stipulation as to pendency, so no hearing was necessary. The parties agreed that the student’s pendency program arises from the IEP dated May 4, 2016. Pendency services will be paid from July 5, 2022, until the date of issuance of a final decision in this matter.

At the pre-hearing conference, the following issues were certified for decision at the hearing:

• • Whether the Department of Education’s (“DOE” or “the District”) failure to recommend a 12-month extended school year for the student for the 2022/2023 school year resulted in a denial of a free appropriate public education (“FAPE”).
• • Whether the DOE’s failure to recommend 10x60 minute individual SEIT/SETSS services per week for the 2022/2023 school year resulted in a denial of a FAPE.
• • Whether the DOE failed to timely and fully evaluate the student in all areas of suspected disability.
• • Whether the various procedural violations alleged, namely the failure to convene a CSE or have an IESP in place at the start of the school year, the failure to timely and fully evaluate, and the failure to consider test results and teacher recommendations for the student’s program violated the parent’s right to meaningful participation, resulting in a denial of a FAPE.

(PHC Summary and Order, p.3). Regarding remedies, Parents requested that the District provide the same services as were mandated in the 5/4/2016 IEP for the 2022-23 twelve-month school year at an enhanced rate to a provider of Parents’ choosing. (Parent Ex. A-4,5, PHC Summary and Order, p.3). They have also requested that the DOE fund an independent neuropsychological evaluation at a fair market rate.^[1] (Parent Ex. A-5, PHC Summary and Order, p.3). The District did not submit a response in this matter, as required by 20 U.S.C. §1415(c)(2)(B)(i)(I); 34 C.F.R. §300.508(e). (PHC Summary and Order, p.3).

At the due process hearing (“DPH”), the District submitted one exhibit (District Ex. 1) for the purpose of narrowing the issues and did not present any witnesses. (DPH Tr. p. 4-5). Parents submitted a package of documentary evidence containing exhibits labelled A through J, which included a testimony affidavit from the educational director (“Educational Director”) of the service provider (“Service Provider”) that provides the SEIT and related services to the student.^[2] (DPH Tr. p. 6). Parents’ exhibits were admitted into evidence without objection. (DPH Tr. p. 6). Parents’ sole witness was the Educational Director, who testified by affidavit and telephone cross-examination.

LEGAL FRAMEWORK

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("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”). 34 C.F.R. §300.13. 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. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). 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). The IEP must be reviewed at least annually, 34 C.F.R. §300.324(b)(1)(i), and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year, 8 NYCRR §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010).

For procedural violations, a denial of FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2). Further, under caselaw, failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).

If a CSE determines that a disabled student requires services beyond a normal 10-month school year, then extended school year (“ESY”) services must be provided. 34 C.F.R. §300.106(a)(2). In New York, the standard for determining whether ESY services are necessary is whether, without them, the student is likely to experience “substantial regression.” 8 NYCRR §200.6(k)(1).

A board of education may be required to pay for educational services obtained unilaterally by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). These three conditions (prongs) constitute the Burlington/Carter test.

A unilateral placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)(“[Parents] need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”). Educational progress can be a factor weighing in favor of the appropriateness of a unilateral placement. Frank G., 459 F.3d at 365. To qualify for reimbursement under the IDEA, parents need not show that the unilateral placement is perfect or that it meets all state educational standards. Id. at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).

The IDEA permits awards of direct payment to unilateral placement providers where the parents have not yet made payments but are legally obligated to do so. See Mr. A. ex rel. D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427 (S.D.N.Y. 2011). Under Burlington/Carter, if the parents are financially obligated to pay for the contracted services and have met their prong 2 burden, the contract must be fully reimbursed or directly funded by the District unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced. See Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993) (“Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”); J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”).

Pursuant to New York’s “dual enrollment” statute, Educ. Law §3602-c, New York State resident students are entitled to an individualized education services program (“IESP”) developed by the school district where the nonpublic school is located and the IESP must be developed in the same manner and with the same content as an IEP. 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). Under State law, however, parents who have privately enrolled their child in a nonpublic school may 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. Educ. Law §3602-c(2). 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]." Educ. Law §3602-c(2)(b)(l).

Special education services under an IESP must be provided on an equitable basis as compared the services provided to other students with disabilities attending public schools and nonpublic schools. Section 3602-c also enables a parent to initiate an impartial hearing pursuant to Educ. Law §4404 to challenge an IESP.

The IDEA requires that school districts reevaluate students with disabilities at least once every three years, unless the parent and the District agree that reevaluation is unnecessary. 34 C.F.R. §300.303(b). Additionally, a district must honor a parent’s request for reevaluation if one has not occurred within the previous 12 months. M.S. v. Lake Elsinore Unified School District, 69 IDELR 148 (9th Cir. 2017). As part of any reevaluation, the CSE must review existing evaluative data on the student, including any private evaluations, classroom observations, and observations by teachers and service providers, and then conduct further assessments if necessary. 34 C.F.R. §300.305. The failure to conduct further assessments can result in a denial of a FAPE if more information is needed to develop an appropriate IEP. See, e.g., New Mexico Pub. Educ. Dep’t, 115 LRP 12278 (SEA NM 03/02/15); James v. Dist. of Columbia, 68 IDELR 11 (D.D.C. 2016).

In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking reimbursement for a unilateral private placement has the burdens of production and persuasion on the appropriateness of such placement. NYS Educ. Law §4404(1)(c).

FINDINGS OF FACT

Parents here requested the provision of equitable services by letter in June of 2022. ^[3] (Parent Ex. H-1). The DOE has acknowledged that they failed to hold an annual CSE review meeting or draft an IESP for the 2022-23 school year.^[4] (Parent Ex. A-3, DPH Tr. p. 10). Additionally, it is undisputed that the DOE has failed to reevaluate the student since 2017. (Parent Ex. A-2, DPH Tr. p. 10).

The last-agreed-upon IEP for the student called for a twelve-month school year. (Parent Ex. A-2, B-22). Additionally, it called for the provision of SEIT services (1:1, 10 hours per week, in English), speech language therapy (1:1, 1 x 30 minute periods per week, in English), speech language therapy (2:1, 2 x 30 minute periods per week, in English), and occupational therapy (1:1, 3 x 30 minute periods per week, in English). (Parent Ex. B-21). The student is a fifth grader who presents with significant delays in the areas of cognition, receptive and expressive language, literacy, and math, and has difficulty with focus, memory, social issues, and organization. (Parent Ex. A-2, J-5). The student is four grades below level in reading, and below grade level in comprehension, math, and social domains. (Parent Ex. G-1-4).

There is limited evidence in the record as to the specific progress the student has made with this program, as the progress report provided by the Service Provider describes only that “some progress has been noted” in various areas of literacy and math. (Parent Ex. G-2-4). However, I credit the undisputed opinion of the Educational Director that a continuation of these particular services is required on a 12-month basis to prevent regression and to allow the student to obtain educational benefit in the general education setting; there is no evidence to the contrary and the DOE has agreed. (Parent Ex. G-6, J-5, DOE Ex. 1-002).

The Service Provider is currently providing the student with the recommended program and services. (Parent Ex. D-1, G-1, J-3, 4). SEIT services are provided by one of two providers who are certified to teach students with disabilities in New York and have experience working with students with learning and language delays. (Parent Ex. J-3). The individual SEIT providers receive a rate of $100 per hour, but the Service Provider charges $197 per hour. (Parent Ex. J-3, D-1; IHO Ex. II-1). The Speech Language Therapist who works with the student is licensed in New York State as a speech and language pathologist and specializes in students with language processing delays. (Parent Ex. J-4; F-1-2; IHO Ex. I-1). The Speech Language Therapist receives a rate of $160 per hour, but the Service Provider charges $225 per hour. (Parent Ex. J-4, D-1; IHO Ex. II-1). The Occupational Therapist who works with the student also has experience working with students with disabilities and is licensed in New York. (Parent Ex. J-4; E-1-2). The Occupational Therapist receives a rate of $160 per hour, but the Service Provider charges $225 per hour. (Parent Ex. J-4, D-1; IHO Ex. II-1).

On July 1, 2022, a contract was executed between the Parent and the Service Provider to provide SEIT, SLT, and OT services to the student. (Parent Ex. I).^[5] By contract, the Service Provider agreed to carefully screen the student and match them to the appropriate individual providers, provide ongoing supervision and training to the individual providers, coordinate services with the student’s school, provide training seminars for the Parents, provide educational materials and progress reports, and assist Parents with CSE meetings and/or any due process hearing. (Parent Ex. I-1-2). The intake process involves a review of any prior evaluations, progress reports, or clinical materials, and matching to the appropriate individual instructor. (Parent Ex. J-2). Additionally, the Educational Director visits the student’s school to observe the student in the classroom and collaborate with the providers and the school. (Parent Ex. J-2). The student’s instructional program was chosen specifically to align with the student’s needs, in consultation with his individual providers, their supervisors, and the student’s classroom teachers. (Parent Ex. J-5).

The Service Provider employs approximately 300 special education teachers, a team of 13 full-time supervisors, a consultation team, and approximately 30 office staff members. (Parent Ex. J-2-3, DPH Tr. p. 19-20). The Service Provider offers all their individual providers one-on-one supervision, educational resources and support, professional development and materials, and a library of educational materials and resources so that they can employ the latest teaching techniques and research-based teaching strategies. (Parent Ex. J-2-3). The Services Provider offers multiple office spaces and conference rooms to facilitate the provision of services. (DPH Tr. p. 20). The rates charged for all services includes a portion of administrative costs, including rent and operating costs, taxes, compensation for supervisors and other employees, trainings, educational resources and materials, and professional development. (Parent Ex. J-2-4, DPH Tr. p. 16-20).

ANALYSIS

State law requires the District to locate and assign publicly-provided teachers for all dually enrolled students. Educ. Law §3602-c(2)(a); see also Office of Special Educ. Memos, Clarifying Information Related to Contracts for Instruction, July, 2009 (available at http://www.p12.nysed.gov/resources/%20contractsforinstruction/documents/contractsforinstruction2009.pdf) and Q and A related to Contracts for Instruction, June 2010 (available at http://www.p12.nysed.gov/%20resources/contractsforinstruction/documents/contractsforinstruction2010covermemo.pdf) (both explaining that the DOE cannot contract for educational services with nonprofits or other agencies, except in rare circumstances not applicable here). The DOE’s widespread abrogation of their duty to provide equitable services has been discussed at length in several recent State Review Officer decisions. See, e.g., Application of a Student with a Disability, Appeal No. 21-119 (Aug. 6, 2021)(collecting cases). Generally, it appears that the DOE has been relying on parents to obtain the services of independent providers to implement SETSS and related services contained in a child’s IESP, and then disputing the rate of such services at due process hearings. See id.; Application of a Student with a Disability, Appeal Nos. 21-029; 21-028; 21-025; 20-141; 20-140; 21-115; 20-099; 20-094; 20-087.

Here, the failure is even more inexcusable, as the DOE did not merely fail to implement the IESP; they failed to even hold a CSE meeting or draft an updated IESP for the last three school years, despite their agreement that the student is entitled to equitable services. The District provided no evidence to suggest that it even attempted to arrange for the delivery of equitable services here. Thus, the parent was forced to arrange for services on their own. In doing so, they unilaterally chose a provider and entered a service contract. I agree with the analysis in Application of a Student with a Disability, Appeal No. 21-119, and many of the above SRO decisions, which liken these situations to tuition reimbursement cases; the District can be made to pay for special education services that a parent has paid or become legally obligated to pay, even though the District would not have been able to contract for such services directly. Accordingly, I will utilize the three-part Burlington/Carter analysis in deciding this issue.

As for prong 1, the District has conceded that it failed to draft and implement an IESP for the current school year. So, they have essentially conceded that they cannot meet their prong 1 burden. Since Parents timely notified the District of their request for equitable services, the student was entitled to receive them for the 2022-23 school year. After agreeing at the pre-hearing conference that the issues to be decided at the hearing involved an alleged failure to evaluate and a denial of FAPE, the District argued for the first time at the due process hearing that FAPE was not at issue here, since the student is parentally placed in a private school and is only entitled to equitable services under state law. Since the District failed to put the parents on notice of their position prior to the hearing and failed to assert any defenses as to the provision of FAPE in either an answer or prior written notice (as required by 34 C.F.R. §300.503), I find that the District has waived any such arguments.

Even if they had been raised in a timely manner, I disagree with the District’s position. Although privately-placed students are not individually entitled under the IDEA to receive the special education and related services they would receive if enrolled in public school, districts are required by the IDEA to participate in the consultation process for making special education services available. See 34 C.F.R. §§300.134, 300.137(a), (c), 300.138(b). Furthermore, the IDEA requires triennial evaluations for students with disabilities, 34 C.F.R. §300.303(b), the failure of which can result in denial of a FAPE, see, e.g., New Mexico Pub. Educ. Dep’t, 115 LRP 12278 (SEA NM 03/02/15); James v. Dist. of Columbia, 68 IDELR 11 (D.D.C. 2016). Here, the District has conceded that they did not participate in the required IESP consultation process by failing to hold a CSE meeting or develop or implement an IESP for the current school year. Furthermore, they have conceded that they failed to timely and fully evaluate the student in all areas of suspected disability. I further find that the District’s failure to develop and implement an IESP prior to the start of the school year constitutes a denial of the student’s equitable entitlement to special education services for the 2022-23 school year. Regardless of whether you describe the student’s entitlements as equitable services or a FAPE, the District has failed to meet their prong 1 burden.

As to prong 2, I find that the Parents have met their burden. The District conceded at the hearing that they were not contesting the appropriate special education program and related services the student needs (as contained in District’s Ex. 1), including the need for an extended school year, and were only contesting the appropriate rate for such services. The appropriateness of the program and services requested by the parent (and agreed to by the District) is supported by the Educational Director’s testimony and progress report of the Service Provider in the record. (Parent Ex. G, J). The Service Provider conducted a detailed intake process with the student and specially designed his program to meet his unique needs. (Parent Ex. G, J; DPH Tr. p. 22-23). I credit the uncontested expert opinion of the Educational Director, that this program is needed to enable the student to achieve educational benefit.^[6] The District did not object to the qualifications of the Service Provider, and I find, given the qualifications discussed in the Facts section above, that they were well-qualified to provide the relevant services. Thus, there is no question that the special education program and services provided by the unilateral placement are appropriate here.

Since the Parents have met their prong 2 burden, the only issue left to be addressed is prong 3 – whether the equities favor reimbursement and/or direct payment to the Service Provider for the contracted services. The District argued at the hearing that the contracted rates, well in excess of what is paid to the individual providers, are unreasonable and the District should not be obligated to pay the various/arbitrary administrative costs that are encompassed in those rates. (DPH Tr. p. 25-26). According to the District, it is unreasonable to expect them to foot the bill for the over 300 special educators and approximately 30 office staff employed by the Services Provider, as well as the costs of their multiple offices. This was the District’s sole argument at the hearing. According to the Parents, this rate is necessary for the Service Provider to offer the appropriate services and books to their students, and training to their individual providers. (DPH Tr. p. 27). However, neither Parent’s counsel nor the Educational Director offered any explanation as to why the seemingly arbitrary percentage of administrative costs (as a portion of the total hourly fee) varied so greatly between the SETSS rate (49%) and. the rate for related services (29%).

At the outset, I will note that although the District asked cross-examination questions of the Parents’ witness and made arguments as to the reasonableness of the Service Provider’s rates, they failed to present any evidence or witnesses of their own to establish their claim that the proposed rates are either outside the standard market rates in New York City or are objectively unreasonable. Additionally, the District raised no allegations of bad conduct or lack of cooperation on the part of the Parents which would mitigate their entitlement to equitable relief, and I find no evidence of any in the record.

Generally, I find that the equities here favor the parents. If the District had fulfilled its obligation to locate service providers for the student, they would not now be faced with the prospect of paying these high rates. Additionally, this student has been failed in no small way by the District, who has not evaluated the student since 2017 and has failed to convene a CSE or draft or implement an annual IESP for several years. Furthermore, the District was ordered by a previous IHO to conduct evaluations and hold a review meeting prior to 02/09/2021, and they failed to do either. The last agreed-upon IEP here was when the student was in preschool, and he is now REDACTED years old. It appears that the District has all but abandoned this student. Thus, the equities are not in the District’s favor.

Furthermore, the Parents have demonstrated that they are legally obligated to pay for the requested program and services (with one small exception discussed below), unless they withdraw prior to the first day of school or cancel with five days advance notice. (Parent Ex. I-3). The Provider Contract was not withdrawn prior to the first day of school, so the parents are legally obligated to pay unless the contract is cancelled in the future, which would not happen unless the District implements the services elsewhere. The District has shown repeatedly that it is unlikely to do so. Furthermore, continuity of services is in the best interest of the student. The District had ample opportunity to arrange for the undisputed services and failed to do so here. So, I find that the equities favor keeping the student with the Service Provider instead of allowing the District to force a change in services at some point in the middle of the school year, should it deign to fulfill its obligations at some future date. So, for the purposes of this analysis, the parents have satisfied the requirement of showing that they are legally-obligated to pay the Service Provider for the following: 10 hours a week of SETSS, for 46 weeks, at a rate of $197 per hour, 3x30 minute sessions per week of SLT, for 40 weeks, at a rate of $225 per hour, and 3x30 minute session per week of OT, for 40 weeks, at a rate of $225 per hour. (Parent Ex. D-1, I; IHO Ex. II-1).

Interestingly, although the parties agreed that the student is entitled to services for the 12-month school year, the parents only contracted the SETSS for the extended year. The record here establishes a legal obligation to pay for the contracted related services for only 40 weeks (as opposed to 46). (Parent Ex. D-1, J-3-4). So, although the agreed-upon program consists of a 12-month program for all services, it is not possible to find that Parents incurred a financial obligation for the related services for the additional 6 weeks that would support an award for reimbursement for those additional weeks. But a financial obligation has been established as to the full 46 weeks of SETSS and 40 weeks of related services. The issue then turns to whether the costs are excessive or should otherwise be reduced.

I will discuss the SETSS, SLT, and OT services separately. The SETSS at issue for the 12-month school year are billed at a rate of $197 per hour, but the individual providers only get paid $100 per hour. (Parent Ex. J-3). That means that $97 for each hour (49%) is going to administrative costs. Although some administrative costs are necessary and customary, to charge almost double the providers’ rates for that purpose is objectively excessive. The record here contains no objective evidence of reasonable market rates.^[7] However, the DOE has conceded here that a reasonable SETSS rate would be $175 per hour. (DOE Ex. 1-002). Accordingly, I find that anything higher than $175 per hour for SETSS is excessive and I decline to award reimbursement or direct payment in excess of that amount.

Generally, in the absence of evidence to the contrary, I find that the rate for the individual SLT services is reasonable. As opposed to the SETSS, where the administrative costs make up nearly half of the total rate, the administrative portion of the related services rate is only 29%, which seems much more reasonable. However, under the agreed-upon program, the student is not entitled to 3x30 minute sessions per week of SLT on an individual basis. He is only entitled to 1 (one) 30 minute session per week on an individual basis. (Parent Ex. B-21). The other 2x30 minute sessions per week of SLT are meant to be provided in a group of 2. (Parent Ex. B-21). Accordingly, the services provided are over and above what is required, at a rate that is higher than it would be if the services matched the IESP. (DPH Tr. p. 21). Although the Educational Director was unable to provide testimony as to what exactly they would charge for a group session, they indicated at the hearing that the rate would be lower. (DPH Tr. p. 21). Accordingly, I find that the rate of $225 per hour is appropriate for 1x30 minute session per week (x40 weeks), but I decline to award reimbursement or direct payment in excess of the individual provider’s rate ($160) for the other 2x30 minute sessions per week (x40 weeks).

In the absence of evidence to the contrary, I find the rate for the individual OT services reasonable. Accordingly, I find that reimbursement and/or direct payment is appropriate for $225 per hour for 3x30 minute sessions per week (x40 weeks).

DECISION AND ORDER

Based on the record in this proceeding, I find that the student is entitled to the agreed-upon services from July (the beginning of the 12-month school year), until the end of the student’s 2022-23 school year. For the reasons discussed above, I find that it is appropriate to continue this program and related services [10 x 60 SEIT (1:1), 1 x 30 SLT (1:1), 2 x 30 SLT (2:1), and 3 x 30 OT (1:1)] going forward. However, by statute, SEIT services are only available to preschool-aged students. See 8 NYCRR §§200.16(e)(3) and 200.6. Furthermore, the Educational Director alternatively describes the student’s services as SEIT services and SETSS. (Parent Ex. J-2, 3, 5). Thus, it is unclear whether the student has actually been receiving SEIT or SETTS. But, since he is school-aged, going forward it is appropriate for the program to include 10 hours per week of SETSS, rather than SEIT services.

Finally, given the agreement of the parties that the student has not been re-evaluated in a timely manner and that an independent neuropsychological evaluation is appropriate, I will order the requested evaluation. Given that the last evaluations were done in 2017 when the student was turning REDACTED, more up to date evaluations are necessary to determine the appropriate special education program and services going forward. I will order that the DOE fund this evaluation at public expense. No evidence was presented by either party to establish the market rate for this evaluation, but the DOE has agreed that a reasonable rate for such evaluation is $5000, (DOE Ex. 1-001), so I find no reason to deviate from that amount.

IT IS THEREFORE ORDERED:

• • THAT, the DOE is directed to fund (to the extent not previously funded through pendency) the Student’s mandated SETSS (10 hours per week) for the 2022/23 12-month school year, commencing on July 5, 2022, through June 30, 2023, at the enhanced rate of $175 per hour, by issuing payment directly to the Service Provider upon submission of invoices for the SETSS rendered to the Student during that specified period, up to a maximum of 460 hours.
• • FURTHER ORDERED that, the DOE is directed to fund (to the extent not previously funded through pendency) the Student’s mandated SLT services (3x30 minutes per week) for the 2022/23 school year, commencing on September 8, 2022, through June 30, 2023, at the enhanced rate of $225 per hour for the first 30 minutes per week, and $160 per hour for the additional 60 minutes per week (for a total of $272.50 per week), by issuing payment directly to the Service Provider upon submission of invoices for the SLT rendered to the Student during that specified period, up to a maximum of 40 weeks.
• • FURTHER ORDERED that, the DOE is directed to fund (to the extent not previously funded through pendency) the Student’s mandated OT services (3x30 minutes per week) for the 2022/23 school year, commencing on September 8, 2022, through June 30, 2023, at the enhanced rate of $225 per hour, by issuing payment directly to the Service Provider upon submission of invoices for the OT rendered to the Student during that specified period, up to a maximum of 60 hours.
• • FURTHER ORDERED that, the DOE is directed to fund an independent neuropsychological evaluation by an appropriately licensed provider of the Parents’ choosing, by issuing payment directly to the provider within twenty (20) days of the submission of copies of the evaluations and invoices, at their normal and customary rate, not to exceed $5,000.
• • FURTHER ORDERED that, the DOE will reconvene the CSE to develop either an IEP or IESP after considering, at a minimum but not limited to, the new evaluation results, the continuum of equitable programs and services, and the student’s progress at the private placement within 30 days of receipt of the evaluation report.

SO ORDERED.

DATED: October 12th, 2022

____Leah Martin, Esq.____(Signed Electronically)___

Impartial Hearing Officer

Leah Martin, Esq.

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.

APPENDIX A – ADMITTED EXHIBITS

DISTRICT EVIDENCE

Exhibit

Title

Date

Pages

1.

Proposed Resolution

09/28/2022

3

PARENT EVIDENCE

Exhibit

Title

Date

Pages

A.

Due Process Complaint

July 5, 2022

5

B.

IEP

May 4, 2016

24

C.

Findings of Fact and Decision

January 10, 2021

8

D.

Service Provider Affidavit

September 23, 2022

1

E.

Occupational Therapist Certification

March 29, 2002

2

F.

Speech Language Pathologist Certification

July 1, 2013

2

G.

Progress Report

June 9, 2022

6

H.

Letter to Chairperson

June, 2022

1

I.

Provider Contract

July 1, 2022

3

J.

Affidavit in Lieu of Direct Testimony

September 19, 2022

5

IHO EXHIBITS

Exhibit

Title

Date

Pages

I.

Speech-Language Therapist Updated Certificate

Undated

1

II.

Rate Reference Sheet

Undated

1

Footnotes

[1] The DPC also requests reasonable attorney fees. However, as I have no authority to grant attorney’s fees, they will not be discussed further.

[2] Although the student’s last-agreed-upon IEP calls for SEIT services, the affidavit refers to them both as SEIT services and SETSS (Special Education Teacher Support Services). (Parent Ex. A-2, B-21, J-2, 3, 5).

[3] Although the request letter is dated “June, 2022,” with no more specific date given, the District did not argue that the notice was untimely. The District did not file a response in this case asserting any defense based on this issue, nor did they indicate any objection to the student’s eligibility for equitable services either at the PHC or the DPH. Furthermore, the District executed a pendency agreement in this matter. For all these reasons, any argument that the Parent failed to meet the June 1 deadline is deemed waived and the notice is presumed to be timely.

[4] Although this case only concerns the 2022-23 school year, it is worth mentioning that it appears no CSE meeting was held or IESP drafted for the last three school years. (Parent Ex. A-2, 3). Additionally, it appears that the DOE failed to hold a review meeting or conduct evaluations that were ordered by an Impartial Hearing Officer (“IHO”) in Case #195573, which was filed for the 2020-21 school year. (Parent Ex. A-2, 3, C-6-7).

[5] Although the contract was signed by the Parent on 5/23/22, it was not signed by the Educational Director until 7/01/22. Thus, the contract was not fully executed until the latter date.

[6] The Educational Director has a degree in Early Childhood Education, a master’s in Science, and is awaiting certification as a Board-Certified Behavior Analyst. (Parent Ex. J-1). She is licensed in New York as a Special Education teacher, with a bilingual extension in Yiddish. (Parent Ex. J-1). She has several years’ experience teaching students with disabilities and has been the educational director of the Service Provider for 7 years. (Parent Ex. J-1-2). At the hearing, she was certified as an expert in special education on the consent of the District. (DPH Tr. p. 8-9 )

[7] Although the Affidavit of the Educational Director asserts that their “rate for SETSS/SEIT is within the general market rate for these services in the greater New York City area,” (Parent Ex. J-2), it contains no such assertion as to the rate for related services and provides no objective evidence of other providers’ rates for comparison. Clearly, the Educational Provider is an interested witness when it comes to their own compensation, so while I make no finding that this assertion is incredible, I find that it does not constitute objective evidence of fair market rates.