New York City Department of Education, Impartial Hearing Decision

Findings of Fact and Decision

INTRODUCTION

The Parent, through their representative, filed a Due Process Complaint (DPC) on or about August 29, 2022. On September 13, 2022, the Parent filed an Amended DPC. In the Amended DPC, the Parent alleges that the Department of Education (DOE) failed to offer the Student a free appropriate public education (FAPE) for the 2022-2023 school year. (Ex. A).

The Parent alleged as follows. The DOE failed to implement the recommendations contained in the Student’s Individualized Education Service Plan (IESP) dated January 13, 2022. The Parent has been unable to locate special education teacher support services (SETSS) and related services providers. The Parent used DOE’s online resources to locate SETSS and related services providers, but the providers contacted were unable to service the Student, either due to the low standard rate offered by the DOE or the general dearth of providers in the Student’s neighborhood. The Parent independently located appropriate service providers for the 2022-2023 school year at their prevailing rate. The Parent seeks an order the DOE fund the providers located by the Parent at their prevailing rate.

PROCEDURAL HISTORY

I was appointed on September 2, 2022. On October 14, 2022, both parties appeared for a pre-hearing conference and a hearing was scheduled for November 22, 2022. On November 22, 2022, the DOE failed to appear at the hearing. The Parent Representative moved for an extension of the compliance period, which I granted. (IHO Ex. I) The Parent Representative made an opening statement and submitted seven exhibits which were accepted into the record. Included in the Parent’s evidence were witness affidavits from the Parent and the Educational Director for the Service Provider. The Parent Representative made an oral closing. (See November 22, 2022 Transcript).

FINDINGS OF FACT AND DECISION

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

The Student has been classified with a Speech or Language Impairment by the Committee on Special Education (CSE). (Ex. C). The Parent testified credibly as follows. The Student struggles in many academic and social/emotional areas and requires a lot of assistance to maintain his mainstream placement. (Parent Aff. at ¶ 2). The Student’s IESP dated January 13, 2022 mandated that the Student receive SETSS as a Direct Service, Group Service, seven (7) periods per week in Yiddish, and speech-language therapy (S/L) as a Group Service, two (2) times per week for 30 minutes in Yiddish. (Parent Aff. at ¶ 3; Ex. C). Despite the Parent’s best efforts, she was unable to locate a SETSS or S/L provider for the Student. The Parent made many telephone calls to independent SETSS providers on the list provided on the DOE website, but none of them were available to service the Student at the standard DOE rate. The DOE did not make any SETSS provider available to the Student. (Parent Aff. at ¶ 4). The Parent then contacted the Service Provider which is providing seven hours per week of SETSS and two 30 minute session per week of S/L to the Student for the duration of the 2022-2023 school year. (Parent Aff. at ¶¶ 5-6). The Parent signed a contract which obligates her to pay for these services in the event that the DOE does not pay the Service Provider for the services provided. Paying for such services up front would pose an extreme financial hardship for the Parent, and she would not be able to do so without outside financial support from friends and family. (Parent Aff. at ¶¶ 7-8). The Parent requests that the Student’s SETSS and S/L services be reimbursed at a reasonable market rate and that the DOE continue to fund these services for the rest of the 2022-2023 school year. (Parent Aff. at ¶¶ 9-10).

The Educational Director for the Service Provider testified credibly as follows. He is licensed by New York State (NYS) as a special education teacher and has a bilingual extension in Yiddish. (Educational Director Aff. at ¶ 2). He has been the Educational Director of the Service Provider for six years. (Id. at ¶ 4). In his role as Education Director he screens and hires all of the special education teachers, supervisors, consultants, and trainers for the Service Provider. He researches the latest techniques for teaching children and makes sure the Service Provider has the supplies to meet their students’ needs. He communicates with parents to better understand their children’s learning needs. He also visits the schools where services are provided and collaborates with school personnel to address any needs or concerns. (Id. at ¶¶ 5-8). The Service Provider charges $197 per hour for SETSS and $225 per hour for S/L therapy. These rates include one-on-one supervision, educational resources and support, professional development and materials, employment taxes, administrative costs, and overhead costs. The Service Provider offers monthly professional development training to its providers, focused on special education teaching methods and research-based teaching strategies. (Id. at ¶¶ 9-11).

The Educational Director is familiar with the Student, who is currently receiving seven (7) hours per week of SETSS and two (2) 30 minute sessions of S/L per week from the Service Provider for the 2022-2023 school year. (Educational Director Aff. at ¶¶ 12-13). The SETSS providers that work with the Student are both certified by NYS to teach students with disabilities and are bilingual in Yiddish. The providers are both trained and experienced to teach literacy and comprehension to school aged children and adolescents. (Id. at ¶ 14; Ex. F). The S/L provider that works with the student holds a NYS license in speech and hearing for the handicapped, and is a certified bilingual Yiddish provider. (Id. at ¶ 15; Ex. F). Besides providing one-on-one service to the Student, the three providers also prepare for sessions, create goals, write progress reports, and meet with teachers and the Parent. (Id. at ¶ 16). For the 2022-2023 school year, the Student has been receiving his services in his mainstream school. Services are typically provided both inside the classroom as push-in sessions and one-to-one in a separate location, with individualized sessions including a great deal of specialized instruction. (Id. at ¶¶ 17, 19). Goals were created for the Student to work on during the 2022-2023 school year and are reviewed quarterly. The Student’s progress is measured through quarterly assessments, consistent meetings with the providers and support staff, observation of the Student in the classroom, and daily session notes. (Id. at ¶¶ 18, 20). The Student has already shown signs of progress with his SETSS and S/L providers, but his academic and social delays warrant continued services. The Student requires the continuation of seven periods of SETSS per week and two 30 minute sessions of S/L per week on a one-to-one basis for the 2022-2023 school year. (Id. at ¶¶ 21-22).

The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services.^[1] A FAPE “consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child ‘to benefit’ from the instruction.”^[2] To establish that DOE offered a FAPE, it must show that (a) the IEP developed by its CSE through the IDEA’s procedures was reasonably calculated to enable the student to receive educational benefits; and (b) DOE complied with the procedural requirements set forth in the IDEA.^[3] An appropriate program requires an IEP to accurately reflect the results of evaluations to identify the Student's needs,^[4] and provide for the utilization of sufficient special education services.^[5] DOE must also provide “an IEP that is ‘likely to produce progress, not regression.’”^[6]

Under New York State Education Law Section 3602-c, students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP from the public-school district in which the nonpublic school is located. The CSE of the district of location must develop an IESP in the same manner and with the same contents as an IEP.^[7] Responsibility for the implementation of services called for in a student's IESP falls on DOE.^[8] Furthermore, although it may be permissible for DOE to include the Parent in the identification of a particular service provided, “it does not follow that the responsibility to redress a parent’s inability to locate a provider is shifted permanently to the parent.”^[9]

Here it is undisputed that the Student requires special education services consisting of seven (7) periods of SETSS per week in Yiddish, and S/L two (2) times per week for 30 minutes in Yiddish. (Ex. C-7). It is also undisputed that DOE failed make such services available to the Student or identify any other outside providers that could provide the required services at rates lower than the Service Provider identified by the Parent. (Parent Aff. at ¶ 4). I find the rates charged by the Service Provider for the SETSS and S/L services to be reasonable market rates. Because the DOE failed to implement the January 13, 2022 IESP by failing to provide the SETSS and S/L services recommended therein, it materially deviated from the IESP’s stated requirements and denied the Student a FAPE.^[10]

ORDER

• • NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
• • For the entire 2022-2023 school year, the DOE shall pay the Service Provider, or other qualified provider of the Parent’s choosing, for the Student’s seven (7) 60-minute periods of SETSS per week in Yiddish at a reasonable market rate not to exceed $197 per hour, and shall issue payment directly to the Service Provider or other qualified provider of the Parent’s choosing within 30 days of submission of a copy of the invoice;
• • For the entire 2022-2023 school year, the DOE shall pay the Service Provider, or other qualified provider of the Parent’s choosing, for the Student’s two (2) 30-minute sessions of S/L per week in Yiddish at a reasonable market rate not to exceed $225 per hour, and shall issue payment directly to the Service Provider or other qualified provider of the Parent’s choosing within 30 days of submission of a copy of the invoice.

SO ORDERED.

DATED: December 1, 2022

___Philip Sturges___________

Philip P. Sturges

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

Footnotes

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

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

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

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

[5] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.

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

[7] Id.

[8] NY Educ. Law § 3602-c(2)(a) (The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.”) See also Application of Student with a Disability, Appeal No. 16-008.

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

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