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NEW YORK STATE EDUCATION DEPARTMENT
IMPARTIAL DUE PROCESS HEARING
x REDACTED, by and through his/her Parent(s), Petitioners, FINDINGS OF FACT
AND DECISION
- against Case No. 578817- NYC: 230902 THE NYC SCHOOL DISTRICT, BLUETH BROMFIELD, ESQ.
Respondent Impartial Hearing Officer
x
JURISDICTION
This case was appointed, the due process hearing was held, and a decision is being rendered, pursuant to 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.; the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200; and/or Section 504 of the Rehabilitation Act.
PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (hereinafter, “IHO”)
on Petitioners’ due process complaint (DPC), filed on or around September 1, 2022, and corrected November 9, 2022. (P - A). 1 The resolution period expired without the parties reaching an agreement. This IHO was appointed on September 8, 2022. A pre-hearing conference in this matter was held on, October 7, 2022. Closed hearings were held on January 25, 2023, and February [1], 2023. The initial compliance date was November 15, 2022. Extensions were granted extending the compliance date to April 14, 2023. The record closed on March 27, 2023.
BACKGROUND
What follows below are the facts as per the DPC and disclosures. REDACTED (the student), born on REDACTED, is a child with a disability in need of special education and related services. The student has a disability classification of Other Health Impairment. The school year (SY) at issue in this DPC is the 2022-23 SY, during which the student was parentally placed at a private religious school - REDACTED (the private school) but was receiving Special Education Teacher Support Services (SETSS) and related services from DOE through an Individualized Education Services Program (IESP).
The Committee Special Education (“CSE”) last convened for an IESP meeting for the student on June 9, 2021. The resultant IESP recommended SETSS, Individual Service, Yiddish, 4 periods per week; Speech-Language Therapy (SLT), Individual Service, Yiddish, 2x30 minutes per week; Occupational Therapy (OT), Individual Service, 3x45 minutes per week; Physical Therapy (PT), Individual Service, 3x60 minutes per week; Paraprofessional for health and ambulation, Individual Service, Full-time; and special transportation services. (P - D).[2] Parents did not agree with the recommendation of this IESP as parent objected to a reduction in SETSS services from five to four periods weekly, the CSE failed to locate a provider for the services and the parent located a provider willing to work at a higher enhanced rate. On October 7, 2021, parents filed a DPC for the 2021-22 SY. As a result, on May 9, 2022, IHO Nancy Lederman issued Findings of Fact and Decision (FOFD) #201320 ordering five periods of SETSS in a bilingual Yiddish program; SLT, individual, Yiddish 2x30; Paraprofessional, individual, full time; OT, individual, 3x45; and PT, individual, 3x60. (P – B). The district did not appeal this decision. For the 2022-23 SY, the parents agreed with the student’s program set forth in FOFD #201320; however, the DOE failed to implement those services by providing a provider. The parents utilized DOE’s online resources to locate a SETSS and related services provider, but the providers they contacted were unable to service their child, either due to the low standard rate offered by the DOE, or general dearth of providers in this area. As a result, the parent independently located a SETSS provider for the 2022-23 SY at an enhanced rate. Further, parents reached out to the CSE because they were concerned as DOE was delayed in convening a new IEP meeting for the student and the June 9, 2021 IESP was outdated and expired, parents felt that DOE should have increased the level of SETSS and related services, and that the services should continue on a 12-month basis. There was no response from DOE. On or around September 8, 2022, the Parents filed the instant DPC. The DPC states that the parents are seeking the following relief: an order that DOE authorize, reimburse, or pay directly for an Independent Educational Evaluation (IEE)( neuropsychological evaluation); an order that the CSE implement the findings of said IEEs; an order that the DOE continue to fund the program outlined in the FOFD #201320 dated May 9, 2022 at the provider’s prevailing rate; and an order that the DOE fund a bank of compensatory periods of all services which the student is entitled to under pendency for the entire 2022-23 school year – or the parts of which were not serviced.
THE PENDENCY HEARING
JANUARY 25, 2023
For the Department of Education:
REDACTED, DOE Representative
For the Student:
REDACTED, Parent’s Representative
Parent’s representative argued that the basis for pendency was FOFD #201320 dated May 9, 2022, and pendency is an automatic stay-put provision. DOE’s representative did not contest that FOFD #201320 dated May 9, 2022, was the basis for pendency and stated that DOE agrees that the student is entitled to the services.
THE MERITS HEARING
JANUARY 25, 2023 FEBRUARY 1, 2023
For the Department of Education:
REDACTED, DOE Representative
For the Student:
REDACTED, Parent’s Representative
REDACTED – Educational Director at REDACTED, Witness #1
For the Department of Education:
REDACTED, DOE Representative
For the Student:
REDACTED, Parent’s Representative
REDACTED – Parent, Witness #2
DOE’s representative argued that relief was not at issue, as DOE had offered full resolution in this case, and therefore there is no need for a hearing. DOE is not disputing the provision of a paraprofessional or the five periods of SETSS. DOE agreed that the student is entitled to services and that it has a duty to locate and assign teachers for dually enrolled students; however, DOE maintains that parent also has a duty to mitigate by helping provide a provider. It is well settled law that in order to obtain equitable relief of funding/reimbursement, parent needs to aid in mitigating damages. Parent needs to provide a rationale for the rate that's being asserted. As to the IEE, there is no evidence that the parent requested an IEE prior to doing so in the DPC. (Citing M.S. v. Mullica Tp. Bd. of Educ., 485 F. Supp. 2d 555). When a parent disagrees with the district's evaluation, the Parent will first request an independent evaluation from the district, thus, an IEE request cannot be made for the first time in a DPC in which the IEE is sought. The district does not believe that it is responsible for reimbursing the Parents for an independent neuropsychological evaluation.
The parent’s representative argued that the student has cerebral palsy, has severe needs – academic issues and is unable to walk without assistance. The district is removing a paraprofessional for a student who has cerebral palsy. His motor skills are such that he can't go to the bathroom alone because he can't undo the zipper on his pants, and he needs to have a paraprofessional to assist him with this. DOE has failed to convene an IEP meeting since the student’s last IEP on June 9, 2021. This last IESP only recommended four periods of SETSS but the student needs five periods of SETSS. The district failed to provide any of the student’s services. The parents, through their ten-day notice (TDN), notified the district that they were having trouble locating providers. (P – C). DOE did not respond. The district suggest that the parent has a duty to mitigate but the parent is not responsible to do any more than what they’ve already done. Parents are not asking for a particular rate but are merely seeking a reasonable market rate. The parents want an IEE because parents are not certain that the recommendations set forth in the most recent program, which are in and of itself expired, are accurate. DOE can either agree to an IEE request or file a DPC contesting the request, but here DOE has done neither. (Citing 200.5(G)(iv)). DOE argues that it offered a full resolution, but this is not true. The resolution did not address the parent’s request for the IEE and only offered four hours of SETSS, not five. The IHO should issue an order that the student requires five hours of academic support at a reasonable market rate, needs daily academic support including during summer, requires all the services recommended in FOFD #201320 and order a neuropsychological IEE not to exceed $5,000.
Relevant portions of the witness’ testimonies are as follows.
Witness #1 – Affidavit & Live Testimony
He is the Educational Director at REDACTED (the agency), an agency that provides related services. In this role he screens and hires special education teachers, supervisors, consultants and trainers. He works closely with the supervisory team to ensure that the needs of every student and teacher are being met. He communicates with the parents to better comprehend their child’s needs. The agency charges $200.00 per hour of SETSS, $175.00 per period of Speech- Language Therapy, and $65 per hour of Paraprofessional Services. The lowest rate that the agency had charged for these services over the last year is between $175 - $200. These rates include 1:1 supervision, educational resources and support, professional development and materials, employment taxes, administrative costs, overhead costs and payments on loans. The agency offers professional development training to its providers in special education teaching methods and research-based teaching strategies. He is familiar with the student, and he sees him daily. The student has cerebral palsy and needs an assistant to help with things like opening his zipper and climbing up the stairs. The student is very delayed in both his gross and fine motor skills. The agency provides the student with 1:1 service of 5 hours per week of SETSS, 2x30 minutes per week of SLT and a full-time paraprofessional. The agency does not provide the student with OT and PT, and he believes the student receives those services through a Request for Services Authorization (RSA). The student needs 5 periods of SETSS for consistency and because he is delayed educationally. The student’s service providers also prepare for sessions, create goals, write progress reports, and meet with teachers and parents. For the 2022-23 SY, the student receives his services at the private school. The agency does not have any formal business relationship with the school other than paying for use of the rooms at the school for students to receive their services. Goals are created for the student to work on during the SY and are reviewed quarterly. The student’s progress is measured through quarterly assessments, consistent meetings with the provider and support staff, observation of the student in the classroom, and daily session notes. The student is showing progress, but his academic and social delays warrant the need for continued services.
Witness #2 – Affidavit & Live Testimony
She is the student’s mother. The student struggles in many academic and social/emotional areas and requires a lot of extra assistance. On or about June 9, 2021, the CSE convened an IEP meeting. She was under the impression that the services will remain the same; however, the IEP team decreased the SETSS program and took away the student’s paraprofessional services. She was concerned regarding the sufficiency of the services that were recommended in the IESP. They are insufficient and if not modified and increased, will not support the student’s mainstream placement. She requested a neuropsychological IEE because the student has cerebral palsy and was behind in class and she wanted to get an accurate picture of the student’s current needs to establish the correct goals and recommendations. On or about July 5, 2022, she submitted a TDN informing DOE of her intention to implement the program in FOFD #201320, but DOE did not respond. She filed the instant DPC which included a request for the IEE, but the request was ignored. She did not make a request for the IEE prior to the request in the DPC.[3] DOE has not provided providers for the student’s SETSS and related services. She had no choice but to implement the student’s program on her own. She contacted the Agency, facilitating special education services for the student starting, on September 5, 2022. The Agency is providing 5 hours per week of SETSS, 2x30 minutes per week of SLT, and full-time paraprofessional services. She has not expended any funds to pay for the student’s services. Paying for these services up front would be an extreme financial hardship and she would not be able to afford it without outside financial assistance. She signed a contract which obligates her to pay for the services if the DOE does not pay. She is requesting that the cost of student’s services be funded at a reasonable market rate for the 2022-23 SY and that an order be issued for DOE to fund, by direct payment, the cost of an IEE with a maximum of $5000.00. She arrived at a $5000.00 cost for the IEE by asking her friends and other professionals.
ISSUE
The issues are, did the district fail to provide the student a FAPE by failing to implement the services that it recommended for the student in the IESP? Should DOE fund the cost of the IEE?
RULE OF LAW
Pendency
The pendency provisions of the Individuals with Disabilities Education Act (IDEA) and the New York State Education Law require that
"… during the pendency of any proceedings [relating to the identification, evaluation or placement of a child with a disability], unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child . . .until all such proceedings have been completed" (20 U.S.C. § 1415[j]; see, 34 C.F.R. § 300.514[a]; Education Law § 4404[4]; 8 NYCRR 200.5[l][1]). Federal regulations provide that a child with a disability must remain in his or her current educational placement during the pendency of any administrative or judicial proceeding, unless the State or local agency and the child's parents agree otherwise. (34 CFR 300.514[a]). Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F.2d 904 [2d Cir. 1982]; Drinker v. Colonial School Dist., 78 F.3d 859 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and “strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school” (Honig v. Doe, 484 U.S. 305 [1987]). It does not mean that a student must remain in a particular site or location (Concerned Parents and Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751 [2d Cir. 1980], cert. denied 449 U.S. 1078 [1981]; Application of the Bd. of Educ., Appeal No. 99-90), or at a particular grade level (Application of a Child with a Disability, Appeal No. 95-16). Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Mackey v. Bd. of Educ., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase “then current placement” has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced (Murphy v. Bd. of Educ., 86 F. Supp. 2d 354, 359 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2002]; Application of a Student with a Disability, Appeal No. 14-024). The U.S. Department of Education has opined that a student’s then-current placement would “generally be taken to mean current special education and related services provided in accordance with a child's most recent [IEP]” (Letter to Baugh, 211 IDELR 481 [OSEP 1987]; see, Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]). However, if there is an agreement between the parties on placement during the proceedings, it need not be reduced to a new IEP, and it can supersede the prior unchallenged IEP as the then-current placement (Evans, 921 F. Supp. at 1189 n.3; see, Bd. of Educ. v. Schutz, 137 F. Supp. 2d 83 [N.D.N.Y. 2001], aff'd, 290 F.3d 476, 484 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]).
Moreover, a prior unappealed impartial hearing officer’s decision may establish a student’s current educational placement for purposes of pendency (Student X, 2008 WL 4890440 at *23; Letter to Hampden, 49 IDELR 197 [OSEP 2007]; Application of a Student with a Disability, Appeal No. 08-107; Application of a Student with a Disability, Appeal No. 08-050; Application of the Department of Educ., Appeal No. 08-009; Application of the Department of Educ., Appeal No. 07-140; Application of the Department of Educ., Appeal No. 07-134). In addition, if “a state review official in an administrative appeal agrees with the child’s parents that a change of placement is appropriate, that placement must be treated as an agreement between the State and the parents” for purposes of establishing the student’s current educational placement (34 C.F.R. § 300.518[d]; see 8 NYCRR 200.5[m][2]; Schutz, 290 F.3d at 482).
3602-c
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 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]). 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). 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]).
This case involves a parentally placed student with an individualized education services program (IESP) rather than an IEP. Under New York State Education Law section 3602-c, students with disabilities who are 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 while they receive general education from the nonpublic school where their parents enrolled them. The CSE of the district of location must develop an IESP in the same manner and with the same contents as an IEP. See, Memorandum from James
P. DeLorenzo, re: Chapter 378 of the Laws of 2007, New York State Education Department, Sept 2007. A parent who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location. See, Id. at 5. While the statutory scheme of Education Law section 3602-c places the responsibility of selecting and placing the student in a nonpublic school on the parent, the implementation of the services called for by a student’s IESP falls on the district. See, Application of Student with a Disability, SRO Appeal 16-008. “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”. See, 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.” Id. As per a New York State Education Department guidance document, the term "equitable basis" means that special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district. See Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c, Attachment 1, September 2007. Additionally, unlike the provisions of the IDEA, 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. See, SRO Appeal 16-008. While it may very well be permissible for a district to include the parent in the identification of a particular provider, especially if the parent is willing and able to do so, it does not follow that the responsibility to redress a parents’ inability to locate a provider is shifted permanently to the parent. See, Application of Student with a Disability, SRO Appeal 17-034. A district cannot be absolved of its statutory obligation to implement SETSS for the student simply by asserting that the parents did not engage the services of the SETSS providers of whom the district referred them. Id. The district has the obligation to provide services in conformity with the IESP. See, Educ. Law § 3602-c(2)(a), (b)(1); 20 U.S.C. § 1401(9)(D); 34 CFR 300.17(d); see also 20 U.S.C. § 1414(d); 34 CFR 300.320.
Compensatory Services
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE (see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]. Compensatory education may be awarded to students under the age of twenty-one (see Student X. v. New York City Dep't of Educ., 2008 WL 4890440, [E.D.N.Y. Oct. 30, 2008]). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA (P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008)). Compensatory education awards may include payment for out-of-pocket educational expenses incurred by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate alternative. Foster v. Bd. Of Educ. of the City of Chicago, 611 Fed. App’x 874, 878-79 (7th Cir. 2015). A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).
Burden Of Proof
The burden of proof, including the burden of persuasion and burden of production, is on the DOE to show that it provided FAPE to the student, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. Thus, the school district bears the burden of proof on the first and third prongs of the Burlington test and the parent has the burden of proof for the second prong. See N.Y. Educ. Law § 4404(1)(c).
APPLICATION AND CONCLUSIONS OF LAW
Pendency
I find that the basis for pendency is the FOFD #201320 dated May 9, 2022. I credit the parent’s testimony and evidence. The district did not contest pendency. DOE, thereby, failed to meet its burden of demonstrating a basis for pendency and/or establishing that the parent’s basis for pendency was incorrect. Accordingly, pendency is awarded according to FOFD #201320.
On The Merits
After considering all the evidence, the arguments of counsel, as well as the legal research,
I find as follows. The student's eligibility for special education and related services is not disputed by the parties. DOE did not put on a case and did not provide any witnesses. Both parties agree that the student is entitled to the services recommended in the IESP. The district, however, did not make arrangements for the SETSS services or identify a provider, and thus, the district failed to perform its duty. In addition, the responsibility of locating a provider was assigned to the parents; yet as of the date of the hearing, the district had not funded the services independently identified by the parent. The district failed to meet its obligation to implement the SETSS, SLT and paraprofessional services in the student's IESP. The district denied the student appropriate equitable services for the 2022-23 SY. The DOE must implement/fund the agreed upon services. Parents made no claim that the student was not receiving his OT and PT services, that those services were not being funded, testimony as to the rates for these services; therefore, they will not be addressed here.
DOE’s representative made the following arguments: DOE offered full resolution in this case so there is no need for a hearing, parent has a duty to mitigate by helping provide a provider, parent must provide a rationale for the rate that's being asserted, and there is no evidence that the parent requested an IEE prior to doing so in the DPC and an IEE request cannot be made for the first time in a DPC in which the IEE is sought. DOE’s arguments, however, were not valid. Parents representative established the DOE’s resolution offer did not address all of the parent’s relief sought in the DPC, therefore, a hearing was necessary. Parents do not have a duty to mitigate by providing a provider; DOE has a duty to furnish a provider, which it failed to fulfill here. Parent, through the testimony of Witness #1, provided a rationale for the rates asserted. And lastly, parent has provided evidence that they did request and IEE prior to the request in the DPC. DOE was given the opportunity to counter parents evidence but failed to do so.
Parents seek the following relief/orders. (1) An order that DOE authorize, reimburse, or pay directly for an Independent Educational Evaluation (IEE) (neuropsychological evaluation) and an order that the CSE implement the findings of said IEEs. DOE must fund the cost of an IEE with a maximum of $5000; however, I will not order that the CSE must implement the findings of the IEE. No one knows what the findings of the IEE will be, and I will not blindly order the implementation of the unknown. Doing so would infringe upon DOE’s right to question the findings there-in. I will, however, order that the CSE re-convene and draft an IESP that takes the findings of the IEE into consideration. Parents are not without recourse as they can file a DPC to challenge the recommendations in IESP according to the findings of the IEE. (2) An order that the DOE continue to fund the program outlined in the FOFD #201320 dated May 9, 2022, at the provider’s prevailing rate. DOE agreed that the student is entitled to these services. Such services with be provided at an enhanced rate as per the rates stated by the agency, as DOE did not fulfill its duty of furnishing a provider and parents took it upon themselves to find a provider. (3) An order that the DOE fund a bank of compensatory periods of all services which the student is entitled to under pendency for the entire 2022-23 SY – or the parts of which were not serviced. Additional compensatory services are not warranted here. DOE must fund the student’s services under pendency, those serviced and those not yet serviced, and the remainder will be awarded under this decision; thereby, the student will be placed in the position he or she would have been in had the district complied with its obligations since the beginning of the school year. (4) Parents requested in their DPC, but did not do so explicitly at the hearing, that the student’s services be awarded on a 12-month basis; however, the evidence presented is not persuasive that the student requires the services for 12-months. The only evidence in support of the 12-month SY was a recommendation in a progress report drafted by the student’s SETSS provider, a provider that did not appear as a witness, offered no testimony and could not be questioned as to the specifics for the recommendation. Further, there was no testimony or evidence that the student regressed more than the average student, or a student with the same needs, over the summer months. Accordingly …
ORDER ON PENDENCY
IT IS HEREBY:
ORDERED that the student’s pendency program is five periods of SETSS in a bilingual Yiddish program; SLT, individual, Yiddish 2x30; Paraprofessional, individual, full time; OT, individual, 3x45; and PT, individual, 3x60, ORDERED that DOE shall fund the student’s pendency program at the enhanced rate for the duration of the instant DPC proceeding and any appeals thereof; however, such enhanced rate shall be no higher than the lowest rate charged by the same provider to the district for substantially similar work during the preceding six months, ORDERED that pendency shall be effective as of the date of the filing of the parents’ due process request dated September 1, 2022.
IT IS SO ORDERED.
Dated: March 27, 2023
/s/ Blueth Bromfield
Blueth Bromfield, Esq
Impartial Hearing Officer
ORDER ON THE MERITS
Based upon the foregoing, it is hereby:
1. ORDERED that the New York City Department of Education failed to provide the student a FAPE for the 2022-23 SY;
2. ORDERED that DOE shall implement/fund the students program outlined in the FOFD #201320 dated May 9, 2022, for the 2022-23 SY, at the provider’s enhanced rates of $200 per hour SETSS, $175 per period of SLT and $65 per hour for a 1:1 paraprofessional, in so far as these services are not funded under pendency,
3. ORDERED that DOE is directed to fund, at a rate not to exceed $5000 (but such rate shall be no higher than the lowest rate charged by the same provider to the district for substantially similar work during the preceding twelve months), a neuropsychological evaluation of the student to be conducted by a NYS licensed psychologist or neuropsychologist chosen by the parent, by issuing payment directly to the provider within thirty (45) days of the submission of a copy of the evaluation and an invoice.
4. ORDERED that the CSE is directed to convene a review meeting within two weeks of receiving the aforementioned independent evaluation in order to consider the evaluation and to prepare a new IESP that comprehensively describes the student and includes appropriate related services and goals.
IT IS SO ORDERED.
Dated: March 27, 2023
BLUETH BROMFIELD
BLUETH BROMFIELD, Esq.
Impartial Hearing Officer
EXHIBITS
DEPARTMENT OF EDUCATION EXHIBITS
1. 11/2/21 - 7/7/22, SESIS Events Logs, 1 pg.
PARENT EXHIBITS
D. A. 11/9/2022, Amended DPC, 4 pgs. B. 5/9/2022, FOFD, 4 pgs. C. 7/7/2022, TDN, 3 pgs. 6/9/2021, IESP, 13 pgs.
E. 11/30/2022, Affidavit of Parent, 4 pgs.
F. 11/30/2022, Affidavit of REDACTED, 4 pgs.
G. 6/20/2022, Parent Contract, 2 pgs.
H. 11/3/2022, Progress Report, 6 pgs.
I. Undated, Provider Credentials, 2 pgs.
J. 7/7/2022, Request for Independent Evaluation, 2 pgs.
IHO EXHIBITS
None
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] The Hearing Officer Exhibits, if any, will be referred to as “(IHO- (followed by a roman numeral))”; Petitioners Exhibits, if any, will be referred to as “(P-(followed by a letter))”; and, Respondent Exhibits, if any, will be referred to as “(R-(followed by a number))”. References to the hearing transcript, if any, are denoted as (T (followed by a page number and line number)).
[2] Parent and parent’s representative repeatedly stated in the DPC and at the hearing that the June 9, 2021, IESP took away the student’s 1:1 paraprofessional service; however, parent’s exhibit D shows that this was not accurate and the 1:1 paraprofessional service was recommended in the IESP.
[3] At the hearing, parent testified that she did not make a request for an IEE prior to the request in the DPC. Parent’s representative also stated that no such request was made by his office. However, after the hearing parent’s representative submitted an updated disclosure packet with an email message requesting an IEE. (P – J). As a matter of fairness, DOE was given the opportunity to submit its SESIS log that was mentioned at the hearing showing that no such request was noted by DOE. (R – 1). DOE was also given the opportunity for the recipients in parent’s exhibit J to state whether they received the request in their inbox, but DOE did not present such evidence. Both parent’s exhibit J and DOE’s exhibit 1 were accepted into the record post hearing.