New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 579616 - NYC: 231619

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED REDACTED

School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: September 6, 2022

Date(s) of Hearing: October 20, 2022

November 18, 2022

January 4, 2023

January 26, 2023

February 8, 2023

Actual Record Closed Date: February 10, 2023

Date of Decision: February 21, 2023

Date of Distribution if Different than Decision Date: N/A Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

October 20, 2022

For the Student:

REDACTED REDACTED, Legal Assistant

For the Department of Education:

REDACTED REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

November 18, 2022

For the Student:

Jie Luo, Esq.

For the Department of Education:

REDACTED REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

January 4, 2023

For the Student:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent Student

For the Department of Education:

REDACTED REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

January 26, 2023

For the Student:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent Student

REDACTED REDACTED, Supervisor, REDACTED REDACTED

For the Department of Education:

REDACTED REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

February 8, 2023

For the Student:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Director, REDACTED REDACTED

For the Department of Education:

REDACTED REDACTED, Esq.

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint filed on or about September 6, 2022. Ex. A. 1 On September 14, 2022, I was appointed by the New York City Department of Education to hear this matter. Parent alleges that the Department failed to provide equitable services mandated by an Individualized Special Education Services Plan (“IESP”) for REDACTED for the 2022-2023 and seeks funding for SETSS and related services for REDACTED at the provider’s “prevailing rate.” Ex. A.

I conducted a prehearing conference on October 20, 2022. An advocate for REDACTED’s parents appeared; a District Representative appeared on behalf of the Department. At the prehearing conference, counsel for REDACTED’s parents discussed the possible settlement of this matter and clarified the relief requested. The parties discussed pendency (tr. 4-12), and an Order on Pendency was issued on November 3. The hearing was scheduled for November 18.

On November 18, counsel for REDACTED’s parents appeared; and the District Representative appeared on behalf of the Department. Counsel reported that they were unable to settle this matter, counsel for REDACTED’s parents requested a continuance of the hearing; the hearing was rescheduled for January 4, 2023, and procedural matters were discussed. Tr. 17-24.

The hearing proceeded on January 4. The Department’s witnesses were unavailable; counsel for the Department and counsel for REDACTED’s parents presented an opening statements. Parent’s counsel presented an opening statement. Department Exhibits^[1] through 6 were admitted in evidence. The hearing was continued to January 26 for witness testimony and proper disclosure of Parent’s Exhibits.

On January 26, counsel for both parties appeared. The Department did not present the testimony of any witnesses, and the Department rested its case. Tr. 45-46. Parents’ Exhibits A through I were admitted in evidence. A supervisor employed by the agency providing SETSS to REDACTED testified, as did REDACTED’s father.

The hearing was completed on February 8, 2023. The director of the agency providing SETSS to REDACTED testified, and Exhibits J through M were admitted in evidence.

Counsel for REDACTED’s parents were offered, and accepted, the opportunity to brief certain legal issues. Counsel subsequently stated that he would not be filing a brief. Tr. 118-119.

The parties requested extensions of the compliance date, and written Orders of Extension were issued on October 20 and November 18, 2022, and January 4 and January 26, 2023. The reasons for granting the extensions are set forth in the Orders.

The record was closed on February 10, 2023, upon the Hearing Officer’s receipt and review of the transcript of the final day of the hearing.

JURISDICTION

The due process hearing was held, and a decision in this matter 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., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

ISSUES

REDACTED’s parents seek funding for SETTS and related services for REDACTED, who is parentally-placed in a non-public school. At the hearing, the Department did not present evidence as to its provision of IESP services to REDACTED to for the 2022-2023 school year. The issues to be resolved are therefore:

1. What services is the Department responsible for providing to REDACTED as per the Department’s IESP?

2. Did the Department provide such services?

3. Should the Department be required to fund the services that REDACTED’s parents secured for REDACTED?

a. Are the SETSS provided by REDACTED REDACTED appropriate for REDACTED?

b. May a portion of the SETSS be provided in the SETSS provider’s home and does such a determination require an inquiry into the parameters and purposes of SETSS?

c. Based upon a preponderance of the evidence in the record, how many hour per week of SETSS is REDACTED receiving?

4. What relief should be granted for the Department’s failure to provide related services to REDACTED as mandate by her IESP when her parents were unable to secure such services?

5. Does the balance of the equities favor REDACTED’s parents?

FINDINGS OF FACT

1. REDACTED is a REDACTED year-old young woman whose disability, for the purposes of the IDEA, is classified as speech and language impairment. She attends an REDACTED-grade general education program at REDACTED School, a non-public religious school. Exs. A; 1 at 1; 2; 4 at 3; H.

2. REDACTED has been diagnosed with REDACTED and experiences challenges with respect to comprehension, attention and focus, receptive and expressive language, organization, completing assignments, engaging in higher order thinking, emotional functioning, and academics. Exs. 1 at 1-4; 4 at 1-2; 5 at 1-2; 6; E at ⁋ 2; H.

3. REDACTED presents with delays in all academic areas and can feel overwhelmed in a classroom setting. Exs. 1 at 2; 5 at 1; 6; E at ⁋ 2; H.

4. The Department’s CSE developed an IESP for REDACTED at a meeting conducted on February 3, 2021. Ex. 1. REDACTED’s mother participated the meeting. Exs. 3, 4.

5. At the meeting, REDACTED’s mother explained that REDACTED needed more than the previously recommended eight periods of SETSS that she was receiving at the time of the meeting. Ex. 4 at 1.

6. The CSE did increase REDACTED’s SETSS in order to support her in the tenth grade mainstream setting and access the general education curriculum. Ex. 4 at 2-3.

7. The CSE recommended that REDACTED receive SETSS (twelve periods per week as a direct group service in REDACTED in a “Separate Location”), speech and language therapy (two 30-minute sessions per week, individually in REDACTED), and counseling (two 30-minute sessions per week, individually in REDACTED). Exs. 1 at 9; 2.

8. REDACTED’s mother agreed with the above recommendations. Ex. 4 at 3.

9. The CSE determined that REDACTED needed academic support and related services “in order to participate in the regular class setting.” Ex. 1 at 5; see also Ex. 2 at 2.

10. In May 2021, REDACTED’s SETSS teacher reported that, at that time, REDACTED was “unable to function in the general education classroom without constant one on one support.” Ex. 5 at 3.

11. REDACTED’s parent credibly testified that he called SETSS, counseling and speech providers on the Department’s “list” but no one was available to work with REDACTED. Tr. 89-91; Ex. E at ⁋ 4.

12. REDACTED’s parent, through counsel, submitted a ten-day notice letter to the Department on August 25, 2022. Ex. C. In this letter, she stated that the Department had not implemented REDACTED’s IESP and that she would be providing the services, and seeking payment for those services, from the Department. Ex. C.

13. REDACTED’s parent was unable to secure related services providers for REDACTED. Ex. E at ⁋ 12.

14. REDACTED’s parent signed a contract with REDACTED REDACTED in October 27, 2022 for the agency to provides SETSS for REDACTED for the 2022-2023 school year. ^[2] Ex. G; Tr. 89.

15. The REDACTED REDACTED contract relates to the provision of “special education services” for the 2022-2023 school year at a rate of $195.00 per hour for 12 periods per week of SETSS. Ex. G. The contract obligates REDACTED’s parent to pay for the services. Ex. G.

16. REDACTED REDACTED is the agency that provides REDACTED with twelve periods of SETSS per week. Tr. 64-65, 128-129.

17. The SETSS providers are in communication with a supervisor employed by REDACTED REDACTED. They discuss REDACTED’s academic goals and modification of learning tasks for REDACTED. Tr. 64, 74-76.

18. The supervisor also collaborates with school personnel and REDACTED’s parent. Tr. 64, 74.

19. The supervisor is a New York State certified general and special education teacher. Tr. 72; Ex. J.

20. The two individuals who provide SETSS to REDACTED are REDACTED and REDACTED. They are New York State certified special education teachers.^[3] Exs. F at ⁋ 12; I.

21. The supervisor is “constantly in touch” with the SETSS providers, and there is “a lot of collaboration” among the SETTS providers, the supervisor, school personnel and REDACTED’s parents. Tr. 74.

22. The supervisor has not observed the SETSS providers working with REDACTED. Tr. 75.

23. The supervisor stated, in an affidavit of her direct testimony, that REDACTED REDACTED provides SETSS to REDACTED at her general education school. Ex. F at ⁋ 14.

24. During cross-examination at the hearing, the supervisor testified that some of the SETSS are provided outside of school “at night” at the home of the SETSS provider and some of the SETSS are provided in school during school hours. Tr. 77; see also 91-92 (REDACTED’s parent’s testimony).

25. SETSS are provided in school because REDACTED is “not really able to keep up with the class in school,” and the in-school SETSS provider assists her to “keep up” in school. Tr. 77.

26. The SETSS provided in school is provided on a pull-out basis for subjects “that she’s not really able to sit in class” for; in other subjects, for which she “should be in class,” SETSS is provided outside of school and is supposed to consist of pre-teaching, review and test preparation. Tr. 77-78, 80.

27. The supervisor was unable to specify which subjects were addressed by the SETSS providers in school and which were addressed after school, with the exception of American history, for which REDACTED was pulled-out of class in school. Tr. 78, 80-81.

28. The supervisor was unable to state when during the school day the in-school SETSS provider worked with REDACTED. Tr. 79.

29. The supervisor did specify that the SETSS providers worked with REDACTED on secular and not religious subjects. Tr. 79.

30. Witnesses (the REDACTED REDACTED supervisor, REDACTED’s parent, and the REDACTED REDACTED director) were unable to specify the number of hours per week REDACTED was scheduled to receive SETSS in school and SETSS after school. Tr. 78, 81, 91-92, 120.

31. The REDACTED REDACTED supervisor testified that she believed that the division of the hours was seven hours per week in one environment and five hour per week in the other environment, but she could not recall which was which. Tr. 81.

32. REDACTED’s father first stated that REDACTED goes to the SETSS provider’s home five nights per week but was unable to state how many hours per week REDACTED spent at the SETSS provider’s home because “every week is different.” Tr. 93.

33. REDACTED’s father explained that the number of hours spent per week at the SETSS provider’s home was dependent upon how much homework REDACTED had completed during the after school SETSS sessions and how much “help” REDACTED needed with material taught during the school day. Tr. 93-94.

34. REDACTED’s father believed that REDACTED received “five or six” hours of SETSS in school and “five or six” hours of SETTS after school. Tr. 94.

35. The director of REDACTED REDACTED testified that REDACTED REDACTED provides SETSS to REDACTED “mostly after school hours.” Tr. 129.

36. One of the SETSS providers prepared a “Progress Report” for REDACTED dated November 2, 2022. Ex. H. The report sets forth goals in the areas of reading comprehension, math skills, math word problems, algebra, spelling and vocabulary, written work, and social and emotional skills. The document does not describe progress on the goals. Ex. H.

37. REDACTED’s father has seen improvement in REDACTED: she was making effort with her schoolwork and not giving up because she did not understand what she was being taught; she was “cooperating and participating” in her studies; she is learning academic material; and she has a positive attitude towards attending school. Tr. 94-95.

38. REDACTED REDACTED charges $195.00 per hour for SETSS. Tr. 82; Ex. F at 7. This amount is inclusive of all expenses, including payments to the SETSS providers and supervisor and “big loans.” Tr. 82.

39. REDACTED’s parent stated that paying for SETSS and related services “up front would pose extreme financial hardship” and that he would not be able to pay for SETSS and related services “without outside financial support from friends and family.” Ex. E at ⁋ 9. REDACTED’s parent did not provide any other information about the family’s financial circumstances.

CONCLUSIONS OF LAW

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for REDACTED education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012); Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).

A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. REDACTED F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v).

In New York, the school district bears the burden of proof in 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. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

In the instant case, I must also consider that REDACTED is a “dually-enrolled” student, and, under New York State Education Law § 3602-c, parents of students with disabilities have the right and ability to select a nonpublic school willing to enroll their child, and places the burden of developing and providing appropriate special education programming upon the school district in which such school is located. The school district must develop an appropriate program for the student in the environment in which the student will receive his or her education (i.e. – the nonpublic school). Section 3602-c expressly states that a school district of location’s CSE “shall 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].” Education Law § 3602-c(2)(b)(1). “The committee on special education shall 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. See, e.g., Application of a Student with a Disability, Appeal No. 21-245 at pp. 10-18 (description of districts’ responsibilities under § 3602-c and interplay with IDEA); see also Application of a Student with a Disability, Office of State Review No. 20-094; Application of a Student with a Disability, Office of State Review No. 20-087. See also Bd. of Educ. of the Bayshore Union Free Sch. Dist. v. Thomas K., 14 N.Y. 3d 289 (2010) (relevance of individualized educational needs of duallyenrolled students).

It is undisputed in this proceeding that the Department did not provide REDACTED with the IESP’s mandated complement of SETSS or related services during the 2022-2023 school year. Since the Department was required by Education Law § 3602-c to provide such services, and failed to do so, I must consider whether the Department should be required, at this time, to provide funding for SETSS that REDACTED’s parents secured through REDACTED REDACTED and to provide, or fund, related services mandated by the IESP.

As discussed in numerous decisions issued by State Review Officers, a Burlington/Carter analysis is both an appropriate and a practical manner in which to approach and consider this case. See Florence County School District v. Carter, 510 U.S. 7 (1993); School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985); see, e.g., See, e.g., Application of a Student with a Disability, Appeal No. 22-088 at pp. 10-18; Application of a Student with a Disability, Appeal No. 21-245 at pp. 10-13. Under such an analysis, a board of education may be required to pay for education services obtained for a child by the child's 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’ clREDACTED. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). Since the Department failed to provide the IESP-mandated services for REDACTED, and REDACTED’s parents were left to their own devices to find providers for such services, the Department should be required to pay for the services that it was otherwise required, yet failed, to provide to REDACTED—so long as the services secured by REDACTED’s parents were appropriate for REDACTED.

SETSS

As to the appropriateness of the SETSS, there is no dispute that REDACTED needs the instruction and supports that a SETSS teacher provides. However, there are other issues raised at the hearing that impact the appropriateness of the services provided by REDACTED REDACTED. These issues include questions arising out of the testimony of Parent’s witnesses as to SETSS delivery—as in, are twelve hours of SETSS provided to REDACTED each week and whether these services should be delivered outside of the school setting. REDACTED’s parents have the burden of proof regarding the appropriateness of the SETTS that they secured. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85. The standard of proof is a preponderance of the evidence.

Location of Services

Parent argues that both statute and regulation define special education as “specially designed instruction . . . to meet the unique needs of a child with a disability including. . . instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings.” Tr. 119-120; 20 U.S.C. § 1401(29) (emphasis added); see also 34 C.F.R.§ 300.39; 8 N.Y.C.R.R. § 200.1(ww). And, as a result, Parent argues, REDACTED’s parent/providers can elect to have SETSS delivered at the home of one of the SETSS providers. The analysis is not this simple.

What is SETSS? 4 There appears to be no known definition of SETSS. It certainly does not appear in the “continuum of services” described in the Commissioner’s Regulations. See 8 N.Y.C.R.R. § 200.6.^[5] SETSS is referenced in the Department’s Special Education Standard

4 Attempts to develop the record REDACTED on this point here failed. Tr. 131-132. See, e.g., 8 N.Y.C.R.R. §§ 200.1(x), 200.5(j)(3)(vii) (a hearing officer may “ask questions of counsel or witnesses for the purpose of clarification or completeness of the record”); see also New York State Manual for Administrative Law Judges and Hearing Officers (2002) at pp. 28-29, 35. Operating Procedures Manual (November 16, 2021) (“SOPM”).^[6] SETSS is not defined in this document; however, the following can be gleaned from this document:

1. SETSS is a form of specialized instruction offered by the Department to students with disabilities as per their IEPs. See, e.g., SOPM at 4, 60, 95-96.

2. SETSS may be provided to a student individually or in a group of up to eight students. SOPM at 60.

3. Some behavioral and related services-type goals may be addressed can be address in SETSS. SOPM at 61.

4. When the CSE recommends SETSS as per an IEP for a student enrolled in public school, and the Department is unable to provide SETSS, the Department should issue an authorization form (a P-4 letter) for the child’s parents to locate a SETSS provider to whom the Department will pay a set rate with a specified exception for an “enhanced rate.” SOPM at 96-97.

5. When the CSE recommends SETTS per an IESP for a student enrolled in private school, the SOPM states the following:

To promote inclusion of students with disabilities, private/religious schools are encouraged to allow related services and SETSS providers to provide “push-in” services—in the student’s classroom, in coordination with his/her teacher(s)— whenever feasible and appropriate for the student’s needs and goals, as documented in the IESP/SP. Classroom-based services allow for intervention to occur in the student’s natural leaning environment. Related service and SETSS providers should plan together with private/religious school and classroom teachers to integrate and align services with the student’s curriculum, and to schedule service delivery in order to maximize the amount of time students with IESPs/SPs spend in the same setting as their peers, including physical education and recess periods.

SOPM at 107.

SETSS thus appears to be a form of specialized instruction for students with disabilities. As relevant to this case, I can glean that it is generally preferable for SETSS to be provided in a nonpublic school student in the student’s classroom. This preference goes by the wayside because REDACTED’s IESP stipulates that her SETSS is to be provided at a “Separate Location.” See ⁋ 7 above.

I do have concerns about the provision of services in a “home” in the evening (rather than in an educational setting during the school day). However, the Department did not provide any services to REDACTED, and, since REDACTED’s parents were left to their own devices to provide services to REDACTED that she needs (and there is no dispute that she actually needs them), I find that it would be inequitable for me to bar funding of services provided under these circumstances.

Provision of SETSS

The record contains conflicting testimony as to how many hours of SETSS REDACTED receives each week. It is highly concerning that the supervisor is unable to describe REDACTED’s SETSS schedule yet testify that she is “constantly in touch” with the SETSS providers and that there is “a lot of collaboration” among the SETTS providers, the supervisor, school personnel and REDACTED’s parents.” See ⁋ 21 above. The quality and degree of supervision and/or support provided by the supervisor is called into question when the supervisor is unable to describe precisely when the student is receiving services and where those services are delivered, and REDACTED more, is unable to describe with any specificity the progress that REDACTED is making.

There is also conflicting testimony that is concerning: supervisor’s direct testimony affidavit as opposed to her testimony on cross, and the differences in the testimony of the supervisor, the director and the parent as to how many hours are delivered in each location (school versus provider’s home). see ⁋⁋ 23-24, 27, 30-35 above. Moreover, this issue could have been easily resolved by the production of REDACTED’s weekly schedule.

In light of the conflicting testimony, the preponderance of the evidence does not demonstrate that REDACTED received twelve periods per week of SETTS. However, the preponderance of the evidence does demonstrate that REDACTED is receiving at least a ten hours per week.

Related Services

REDACTED has not received related services this year. Her parents have not secured private providers for such services, so there is no present basis for me to order that the Department fund specific providers. The Department should issue Related Services Authorizations (“RSA”) for speech therapy and counseling. speech and language therapy (two 30-minute sessions per week, individually in REDACTED), and counseling (two 30-minute sessions per week, individually in REDACTED). Equitable Factors

Under a Burlington/Carter analysis, services which are determined as reimbursable or fundable are fully reimbursed or funded by the school 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 cost and an inability to do so.” SRO No. 21-245 at p. 17 (emphasis added). In short, there must be proof of parents’ legal obligation to pay for services provided to their child. Id. at pp. 17-18. See also, e.g., D.A. v. New York City Dept. of Educ., 769 F Supp. 2d 403, 430 (S.D.N.Y. 2011).

In the instant matter, the contract that REDACTED’s parent entered into with REDACTED REDACTED obligated her to pay for SETSS provided to REDACTED. The proof of “inability” to pay is scant (tax returns would be preferable), but I find REDACTED’s father’s testimony on this issue credible.

Given the testimony and the documentary evidence in the record, as well as the arguments presented by the parties, I will exercise my equitable authority and order funding and services as described in the order below. REDACTED more, since the CSE has not developed an IESP for REDACTED since February 2021, the CSE should, if it has not already done so during the past twelve months, convene a meeting to review REDACTED’s IESP.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered that:

1. The Department of Education shall fund SETSS (ten periods per week as a direct group service in REDACTED in a “Separate Location”), for REDACTED, for the 2022-2023 10-month, 36-week school year.

2. The Department of Education shall pay reasonable market rates, as determined by the Department’s Implementation Unit, for the aforementioned SETSS; and, in any event, that rate shall be capped by the lowest amount paid by the Department to REDACTED REDACTED for SETSS during the 2022-2023 school year.

3. The Department shall issue for REDACTED and forward to her parents forthwith RSAs for 36 weeks of speech and language therapy (two 30-minute sessions per week, individually in REDACTED) and 36 weeks of counseling (two 30-minute sessions per week, individually in REDACTED). These RSAs shall remain effective for one year from the issuance of this decision.

4. The Department’s CSE shall, if it has not already done so during the past twelve months, convene a meeting to review REDACTED’s IESP.

SO ORDERED.

DATED: February 21, 2023

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.

DOCUMENTATION ENTERED INTO THE RECORD

DEPARTMENT OF EDUCATION EXHIBITS

# DOCUMENT DESCRIPTION DATE PAGE

1. IESP 11/3/2021 12 pages DOE

2. PWN 11/9/2021 5 pages DOE

3. IEP Attendance Form 11/3/2021 1 page DOE

4. CSE 8 Meeting Notes 11/3/2021 3 pages DOE

5. Progress Report 5/8/2021 4 pages DOE

6. Psychoeducational Evaluation Report 12/3/2019 5 pages DOE

PARENT’S EXHIBITS

A. Number of Letter Date Name of Document Pages DPC 9/6/2022 6 pages

B. FOFD 2/14/2022 18 pages

C. TDN 8/25/2022 2 pages

D. IESP 11/3/2021 12 pages

E. Affidavit of Parent 1/3/2023 3 pages

F. Affidavit of REDACTED REDACTED 1/4/2023 3 pages

G. Contract 10/27/2022 1 page

H. Progress Report 11/1/2022 3 pages

I. Provider Credentials Teacher Credentials of REDACTED N/A 2 pages

J. REDACTED New York Department of State Entity 1/31/2023 2 pages

K. Information for REDACTED REDACTED, Inc. 2/6/2023 New York Department of State Entity Assumed Name L 1 History for REDACTED REDACTED, Inc. New York Department of State Registration Forms for 2/6/2023 2 pages

M. REDACTED REDACTED, Inc. 12/1/2027 4 pages

Footnotes

[1] Exhibits shall be referred to as follows: Parents’ Exhibits are designated by a letter; the Department’s Exhibits are designated by a number; and Impartial Hearing Officer’s Exhibits are designated as “IHO.”

[2] The agency has used the names of “REDACTED” and “REDACTED REDACTED.” Exs. K, L, M; Tr. 125.

[3] Neither of these individuals were called to testify.

[5] See also the discussion in Application of a Student with a Disability, Appeal No. 22-162 at p. 4 n. 4.

[6] I take judicial notice of this publicly-available document: https://infohub.nyced.org/docs/default-source/default-document- library/specialeducationstandardoperatingproceduresmanualmarch.pdf?sfvrsn=4cdb05a0_2.