New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 580305 - NYC: 232264

FINDINGS OF FACT AND DECISION

Case Number: 232264

Student’s Name: REDACTED,

(Hereinafter known as “Student”)

Student’s Date of Birth: REDACTED

Complaint Filed by: REDACTED,

(hereinafter known as “Parent”)

Date Complaint Filed: 9/6/22

District: REDACTED

Dates of Appearances: 9/28/22, 10/12/22

Impartial Hearing Officer: Barbara Jeanne Caravello, Esq.

Date Record Closed: 12/20/22

NAMES AND TITLES OF THE PERSONS WHO APPEARED:

On September 28, 2022

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

On October 12, 2022

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

INTRODUCTION AND PROCEDURAL BACKGROUND

On September 20, 2022, the undersigned impartial hearing officer was assigned to this matter pursuant to an appointment under the Individuals with Disabilities in Education Act (hereinafter also referred to as “IDEA”), 20 United States Code §1415(f)(1) to officiate over a due process hearing requested by the Parent by way of a due process complaint (hereinafter also referred to as a “DPC”) filed against the New York City Department of Education (hereinafter also referred to as the “DOE” or the “District”, interchangeably) on September 6, 2022 and requesting relief for services delivered to the Student during the 2022-2023 school year.

On September 28, 2022, the hearing was adjourned due to the failure of the respondent to appear and October 12, 2022 a hearing took place upon the default of the respondent with a hearing on the merits concluding and a decision reached.

Extensions were requested to keep the matter in compliance. They were granted, the hearing officer having determined that there was no harm to the Student in doing so.

Parent’s Case:

The Parent asserts in the due process complaint, (hereinafter also referred to as “DPC”), that the Student was denied a free and appropriate public education (hereinafter also referred to as “FAPE”), for the school year 2022-2023 by failing to develop and implement an educational program for the Student.

Parent seeks an order directing the DOE to fund the services recommended in the IESP dated January 24, 2020 at an enhanced rate, along with such other relief which is deemed just and appropriate.

The recommended services consist of:

• • Five periods of Special Education Teacher Support Services (“SETSS”) per week, directly delivered in a group in the bilingual REDACTED/English languages in a location separate from the classroom; and related services consisting of:
• • Speech-Language Therapy, once a week for 30 minutes each session, group service, in the bilingual REDACTED/English language in a location separate from the classroom;
• • Speech-Language Therapy, once a week for 30 minutes each session, individually, in the bilingual REDACTED/English language in a location separate from the classroom;
• • Occupational Therapy, twice a week for 30 minutes each session, individually, in the English language in a location separate from the classroom;

The Parent requests that all services recommended by the District in the IESP be funded by the DOE at an “enhanced rate,” paid directly to a provider of the Parent’s choosing unless they have been otherwise provided by way of RSA’s accepted by the providers.

Parent also seeks attorney’s fees.

The Parent submitted the following into evidence on October 12, 2022:

P-A Due Process Complaint dated 9/6/22 8 pages

P-B IESP dated 1/24/20 10 pages

P-C Contract dated 9/5/22 3 pages

P-D Progress Report dated 6/9/22 5 pages

P-E Teacher Certification dated 7/22/20 2 pages

P-F Witness Affidavit- REDACTED dated 10/3/22 4 pages The evidence was admitted into evidence.

Department of Education’s Case:

The DOE did not appear and made no disclosure of evidence or witnesses.

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

ISSUE I:

Does the DOE owe a duty to fund equitable services to the Student under New York State Education Law?

ISSUE II:

Is the Student entitled to the services of a provider of the Parent’s choosing at a fair market rate?

ISSUE III:

Is Parent entitled to attorney’s fees?

FINDINGS OF FACT

This decision is upon the default of the respondent who had ample notice of the hearing and offered neither a reasonable legal excuse for non-appearance nor a meritorious defense.

I find that this Student was REDACTED years-old at the time the DPC was filed and has an educational classification of Speech or Language Impairment.

I do find that these services, as they appear in the January 24, 2020 IESP and as the Parent requests are the services that the Student is entitled to.

I additionally find that by failing to provide the recommended services with providers who were ready, willing, and able that the DOE has denied FAPE to the Student.

The Parent and Student are entitled to the funding of services by a provider of the Parent’s choosing at a fair market rate.

The implementation unit of the New York City DOE does have information about what enhanced rates it pays out to providers for similar services. This is not an infallible benchmark of fundamental fairness, but it is an indicator. I have no evidence before me as to what is a fair market rate either in the City of New York or in a wider market range.

It is the District’s burden to provide the services and if they do not, the Parents have no choice but to obtain services from whatever rate their provider charges. In order to prevent an abuse of such a situation, the term “market rate” paid by the implementation unit for similar services within a twelve-month period should result in as fair and equitable decision as is possible, given the evidence before me.

I do not have the authority to order attorney’s fees and although they are requested in the DPC, they are denied.

CONCLUSIONS OF LAW AND DISCUSSION

ISSUE I:

Does the DOE owe a duty to fund equitable services to the Student under New York State Education Law?

Yes.

The IDEA was legislated to, “ensure that all children with disabilities have available to them, a free appropriate public education that emphasizes special education and related services designed to meet their unique needs,” Board of Education of Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). The hallmark of a FAPE is educational instruction that is 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,” id.

It is the responsibility of the DOE to provide services and/or placement that will bring the Student to a level of learning that is not only sufficient to confer some educational benefit upon the ‘handicapped’ child, Id, but emphasizes “special education and related services designed to meet the Student’s unique needs and prepare him for further education, employment and independent living as well as ensure that the rights of students with disabilities and parents of such students are protected”, (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S.Ct. 2484, 2491 [2009]; Rowley, at 206-07.

Under state law, an individual education service program must be developed for students with disabilities, placed by their parents in private schools in the same manner and with the same contents as an individualized education program, N.Y. Educ. Law §3602-c[2][b][1]; See, Student with a Disability, 121 LRP 42032. The Committee on Special Education, (“CSE”), the body creating the IEP or IESP for a student is required to develop the IESP based on the individual needs of the Student, N.Y. Educ. Law §3602-c [2][a], [2][b][1]; See, Student with a Disability, 115 LRP 40373.

A school district has the burden of proof, including the burden of persuasion and the burden of production in IDEA due process hearings, except that a parent or person in a parental relationship, seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and the burden of production with respect to the appropriateness of such a placement, In re: Student with a Disability, NYS Educational Agency, 14-022, (3/31/14); In re: Student with a Disability, NYS Educational Agency, 175353, (12/14/18); M.P.G. v. N.Y.C. Dep’t. of Educ., 2010 WL 3398256, (S.D.N.Y. 8/27/10); NYS Educ. Law § 4404(1)(c).

In this matter, there was no defense of the allegations that the DOE failed to provide services to the Student. The Student was not provided an individual to deliver services. The provision of a list of providers, or a link to a website containing the names of providers is shifting the DOE’s clear burden to the petitioner. This would be true even if it were likely that there would be a number of persons on the list who would accept the DOE’s standard rate of compensation for such services.

There is broad authority under the IDEA for a court to fashion appropriate equitable relief where there has been a failure to provide FAPE to a student, Burlington Sch. Comm. v. Dep’t. of Educ., 471 U.S. 359, 369 (1985). Further, the type of relief was not found to be specific, only that it must be appropriate, Id.

Here, the relief is entirely appropriate, in that the services are those that have been recommended by the DOE itself. Further, upon the respondent’s default, it is found that the DOE did not meet its burden to implement the recommended services.

ISSUE II:

Is the Student entitled to the services of a provider of the Parent’s choosing at a fair market rate?

Yes.

The rate of the service provider appears to be the only viable issue between the parties. The services must be provided by the District and when that does not occur, the Parent has no choice but to find a provider. The funds for this provider should not come from the Parent’s own funds and the IHO does not have sufficient evidence to determine what a fair market rate would amount to.

It seems clear that an IHO has the authority, therefor, to order the amount to be reimbursed to the Parent or funded directly to the service provider be at the market rate.

While the use of these terms “enhanced rate,” “market rate” and “customary rate” are largely subjective, I find that the term “enhanced rate,” as found in many impartial hearing decisions refers to a rate that exceeds that authorized by the DOE. I find that “customary rate,” may best describe the rate generally charged by a particular provider. “Market rate” as I understand it, is the rate that a particular market will bear. To determine whether a specific dollar amount is the fair market rate, a jurist would need reliable and competent information to determine the range of rates are charged within that market during a particular period of time. I believe that determining a fair market rate, using only information about dollar amounts charged by providers on the cases that have come before me is too subjective and improper. For the reasons set forth it seems most equitable to refer this decision to the office that funds these services, directly.

The district’s implementation unit does have information about what enhanced rates it pays out to providers for similar services. This is not an infallible benchmark of fundamental fairness, but it is an indicator and the best way to allow for the implementation at an equitable, fair market rate.

It has been held that where the District failed to provide entitled services, which are then engaged by the Parent, such services must be funded by the District at whatever rate is necessary, In re: Student with a Disability, NYS Educational Agency, 169545, (7/23/2018), finding any standard set for “enhanced rates” irrelevant. For reasons stated herein, I find the term “market rate” sufficient to allow for the implementation at a rate that is equitable.

ISSUE III:

Is Parent entitled to attorney’s fees?

No.

The Parent here, seeks attorney’s fees. Under the IDEA, courts of competent jurisdiction have the discretion to award attorney’s fees, 20 U.S.C. §1415 (1)(3)(B); I34 C.F.R. 300.517(a)(1); In re Student with a Disability, 119 LRP 36858, citing Application of the Bd. of Educ., Appeal No. 08-026 (SRO May 12, 2008). However, the IDEA does not extend this jurisdiction to hearing officers, and I find that I do not possess the authority to make such an order. The Parents claim for attorney’s fees is thus, denied.

ORDER AND DETERMINATION:

Based on all evidence before the IHO, it is hereby ordered and determined that:

• • Failure of the DOE to provide this Student for the school year 2022-2023 with SETSS services as they are recommended in the IESP of January 24, 2020 constitutes a denial of FAPE.
• • The DOE shall fund and or reimburse the following services by a provider of the Parent’s choosing:
• • Five periods of Special Education Teacher Support Services (“SETSS”) per week, directly delivered in a group in the bilingual REDACTED/English languages in a location separate from the classroom; and related services consisting of:
• • Speech-Language Therapy, once a week for 30 minutes each session, group service, in the bilingual REDACTED/English language in a location separate from the classroom;
• • Speech-Language Therapy, once a week for 30 minutes each session, individually, in the bilingual REDACTED/English language in a location separate from the classroom;
• • Occupational Therapy, twice a week for 30 minutes each session, individually, in the English language in a location separate from the classroom;
• • The funding and/or reimbursement of services shall be at a market rate to be determined by the District’s Implementation Unit at an amount no greater than any paid by the unit over the past twelve months.
• • All services are to be provided over a ten-month period.
• • The district must immediately upon receipt, enter this order on a system that is used to keep track of such orders.

SO ORDERED:

Dated: December 31, 2022

______________________________________

Barbara J. Caravello, Impartial Hearing Officer

APPEAL RIGHTS

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.