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CASE NUMBER: 581372 – NYC: 233234
FINDINGS OF FACT AND DECISION
Student’s Name: REDACTED
District: REDACTED
Impartial Hearing Officer: Ginger James
Date of Filing: September 6, 2022
Hearing Requested by: Parent
Date of Hearing: January 9, 2023
Record Close Date: February 10, 2023
Date of Decision: February 17, 2023
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 13, 2022
For the Student:
REDACTED, Esq., Parent’s Attorney
For the Department of Education:
No appearance
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 3, 2022
For the Student:
REDACTED, Esq., Parent’s Attorney
For the Department of Education:
REDACTED, Esq. District Representative #1
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 1, 2022
For the Student:
REDACTED, Esq., Parent’s Attorney
For the Department of Education:
REDACTED, Esq., District Representative #2
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 5, 2023
For the Student:
REDACTED, Esq., Parent’s Attorney
For the Department of Education:
REDACTED, Esq. District Representative #2
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 9, 2023
For the Student:
REDACTED, Esq., Parent’s Attorney
REDACTED, Parent Student
REDACTED, Financial Officer at Provider Agency
For the Department of Education:
REDACTED, Esq. District Representative #2
BACKGROUND AND POSITIONS OF THE PARTIES
Parent,[1] through Parent’s Attorney, filed a Due Process Complaint (“DPC”) on or about September 6, 2022.
Parent alleges that the New York City Department of Education (“DOE” or “District”) failed to provide Student a free appropriate public education (“FAPE”) on an equitable basis for the 2022-2023 school year (Ex. A). Specifically, Parent alleges that, for the 2022-2023 school year, the District has failed to implement the services contained in an Individualized Education Services Program (“IESP”) dated November 9, 2020 (Ex. A).
Regarding relief sought, Parent invoked pendency (Ex. A-2). Regarding final relief, Parent seeks a compensatory education award consisting of Special Education Teacher Support Services (“SETSS”) to be provided in a group, five periods per week, to be administered in REDACTED and Speech-Language Therapy (“SLT”) to be provided individually, two times per week for 30 minutes, to be administered in REDACTED (Ex. A; DPH Tr. 42).[2] Parent seeks an order requiring the District to fund the SETSS by issuing payments to providers of Parent’s choosing at the provider’s prevailing rate of $195 per hour and by issuing Related Services Authorizations (“RSAs”) for the SLT (Ex. A-3-4; DPH Tr. 9; 42-43).
DOE’s Position At the outset, District Representative #2’s position is that a hearing was not needed because the DOE offered a “full resolution” (DPH Tr. 9). Addressing the issues litigated, District Representative #2 agrees that Student is entitled to SETSS services and that it is the District’s “duty to locate and assign teachers” for this dually enrolled Student (DPH Tr. 36). However, per District Representative #2, the District “rejects the argument that Parent has zero duty to lift a finger to contract [sic] any providers on the list . . . before hiring a provider charging a rate that is excessive” (DPH Tr. 36). Per District Representative #2, Parent’s failure to seek a provider from the DOE’s list of providers and failure to accept a resolution “is evasive of shared societal duty, and the duty that is upon the DOE” (DPH Tr. 36-37). Further, using a Burlington/Carter analysis, District Representative #2 asserts that Parent has an obligation to “rationalize the amount that the provider is requesting” (DPH Tr. 36, 38, 39-40). 3 In light of the foregoing and as more fully discussed below, I find that the DOE failed to provide Student a FAPE on an equitable basis for the 2022-2023 school year, and that the relief Parent seeks is appropriate.
PROCEDURAL HISTORY
On September 28, 2022, I was appointed as Impartial Hearing Officer (“IHO”) to preside over this matter.
A settlement and a pre-hearing conference (“PHC”) were scheduled for October 13, 2022.[4] The District did not appear for either conference. Parent confirmed that pendency was being sought and I scheduled a Pendency Hearing and a PHC for October 25, 2022 (PHC Tr. 5).
3 In their closing statement, District Representative #2 referenced settlement negotiations, specifically that Parent rejected a resolution and the District’s position that such was improper, as well as referencing the CSE’s practices regarding settlement and the number and types of settlements that had been reached. I have not relied upon those arguments as settlement negotiations between the Parties is not properly to be considered at the DPH. A Party may choose to settle or not and may do so for any reason. My decision is based upon the evidence before me. Further, to the extent the District wished me to consider any information regarding settlement, the proper procedure would have been to seek to introduce testimony and/or documentary evidence for my consideration. I have not used either Parties’ statements as evidence. On November 3, 2022, District Representative #1 and Parent’s Attorney appeared for the Pendency Hearing and PHC. Upon the representations that the Parties were discussing a possible settlement and that Parent’s Attorney would provide me an update by November 10, 2022, I conducted the Pendency Hearing and adjourned the PHC (Pend. Tr. 13, 15-18, 19-30). On November 7, 2022, District Representative #2 emailed a written memorandum detailing their position on pendency (IHO Ex. I).
On November 10, 2022, Parent’s Attorney, by email, relayed that Parent did not accept the District’s offer and requested that a hearing date be scheduled (IHO Ex. II; Tr. #1 35-36). Parent also requested an extension of the compliance date (IHO Ex. II; Tr. #1 35-36). I scheduled the Due Process Hearing (“DPH”) for December 1, 2022 (IHO Ex II).
On December 1, 2022, I issued an Order on Pendency (IHO Ex. III). Additionally, on December 1, 2022, District Representative #2 and Parent’s Attorney appeared for the DPH. I granted the Parties’ request for an adjournment to ensure that witnesses were available and to determine whether the District would “amend the resolution” (Tr. #1 36-37, 41-44). I also granted an extension of the compliance date and rescheduled the DPH for January 5, 2023 (Tr. #1 36-38). Further, I reminded the Parties that the burden is on the District (Tr. #1 40). The Parties disagreed as to whether the District was required to provide Student a FAPE, with District Representative #2 asserting that Student is not entitled to a FAPE because this matter concerns an IESP (Tr. #1 45-46). I advised that District Representative #2 might want to present case law at the next appearance to support their position (Tr. #1 46-47). The Parties also disagreed about the burdens of proof. In response to District Representative #2 raising Burlington/Carter prongs, Parent’s Attorney argued that such analysis did not apply (Tr. #1 45-46). I advised the Parties that various State Review Officer (“SRO”) opinions use a Burlington/Carter analysis, and that although the opinions are not binding, we should be mindful of ensuring that the services are appropriate and how the rate was arrived at (Tr. #1 46-47).
On January 5, 2023, approximately one hour before the scheduled DPH, District Representative #2 emailed the Parties conveying a legitimate belief that settlement could be reached (Tr. #2 54). Upon that representation, I allowed Parent’s Attorney to excuse their witnesses and converted the DPH to a status conference (Tr. #2 54-55). The Parties were unable to resolve the matter and I rescheduled the DPH for January 9, 2023 (Tr. #2 54-55, 57). Parent’s Attorney expressed concern about how the case would proceed in light of the District not presenting evidence and the arguments made at the prior appearance (Tr. #2 58-59, 60). I reminded the Parties that I had discussed the burden of proof and that it is on the District, that I am aware of the SRO opinions that look at a Burlington/Carter-type analysis, and that if either Party, particularly District Representative #2, had case law or anything specific that they wanted me to consider, that they should bring it to my attention (Tr. #2 60-61). I granted the Parties’ request to extend the compliance date to “finalize the hearing” and because it was unknown at the time if Parent’s witness was available for the newly-scheduled date (Tr. #2 57-58, 60).
On January 9, 2023, District Representative #2 and Parent’s Attorney appeared for the DPH. Parent’s Attorney submitted Exhibits A through E, which included affidavits by Parent (Ex. D), and Financial Officer at Provider Agency (Ex. E) (DPH Tr. 6-7). District Representative #2 had no objection to their introduction, and I admitted all exhibits into evidence (DPH Tr. 7-8). District Representative #2 proffered no exhibits nor witnesses (DPH Tr. 5, 6). For their opening statement, District Representative #2 stated, “[r]elief is not at issue due to the DOE having offered full resolution, and therefore there is no need for a hearing” (DPH Tr. 9). Parent’s Attorney presented their opening statement, explaining that the services are not at issue, but rather this case was “simply just a rate issue” (DPH Tr. 9). Parent testified through affidavit and live testimony (Ex. D; DPH Tr. 11-16), as did Financial Officer at Provider Agency (Ex. E; DPH Tr. 18-35). District Representative #2 cross-examined each witness (DPH Tr. 13-16; 19-35). District Representative #2 presented a closing statement, followed by Parent’s Attorney (DPH 36-40, 45-46, 40-44).
FINDINGS OF FACT
After a full review of the record generated at hearing, I make the following findings of fact and determinations. Unless otherwise noted, none of the facts are contested in this matter. On November 9, 2020, the Committee on Special Education (“CSE”) convened and developed an IESP recommending SETSS to be provided in a group, five periods per week, to be administered in REDACTED and SLT to be provided individually, two times per week for 30 minutes, to be administered in REDACTED (Ex. A-3; Ex. B-1, 9, 11).
The CSE did not convene in advance of the 2022-2023 school year, and the District has failed to provide or to fund any SETSS to Student for the 2022-2023 school year (Ex. A-3; Ex. D-1-2). [5]
Student and Parent reside in New York City and Student is attending Private School for the 2022-2023 school year (Ex. A). Private School is located within the geographic boundaries of the DOE.
As the District has not implemented SETSS for Student, Parent called approximately eight to ten independent SETSS providers on a list maintained on the DOE’s website (Ex. D-1; DPH Tr. 13-14). None of them were able to provide services to Student (Ex. D-2; DPH Tr. 13-14). Parent did not contact the CSE for additional help (DPH Tr. 14). Parent then sought the services through Provider Agency (Ex. D-1, 2; DPH Tr. 13-14).
Provider Agency has been providing, and is able to continue to provide, Student SETSS five hours per week for the 2022-2023 school year (Ex. E-1, 2; DPH Tr. 15, 22). Parent signed a contract documenting that Provider Agency intends to provide five periods of SETSS per week at a rate of $195 per hour (Ex. C). Parent does not recall the rate from the previous year (DPH Tr. 15). Although Parent has not paid for those services, the contract states that Parent is liable for the “full amount in the event that the Impartial Hearing Officer does not issue a ruling for the full amount requested” (Ex. C; PH Tr. 15-16). [6] As noted, the requested rate for SETSS is $195 per hour (Ex. C; Ex. D-2; Ex. E-1; DPH Tr. 20). The actual provider is paid approximately $95 per hour, with the remainder of the rate funding four main areas (DPH Tr. 20). The first is supervision (DPH Tr. 20). The second is curricula and materials which are provided to each child (DPH Tr. 21). The third relates to staff, including an office staff of ten people, ten supervisors, placement coordinators, accountants and bookkeepers (Ex. E-1). The funding also covers items such as rent, supplies and utilities (Ex. E-1). The fourth area accounts for high interest loans Provider Agency has taken out due to the “exorbitant amount of time” it takes for the DOE to reimburse Provider Agency, which is between eight and eighteen months (Ex. E-1, 2; DPH Tr. 21). Further, the rates are based on the rates other agencies charge, with Provider Agency’s rate being in the middle tier of other agencies’ rates (DPH Tr. 21-22).
The current rate is the same for “DOE-funded” and “non-DOE-funded” students (DPH Tr. 26-27). For example, for parents who pay “out of pocket,” the rate is $195 if the parent wants “all of the supervision and all of it” (DPH Tr. 31). Although Provider Agency may charge less if a parent is paying immediately for the services, $195 is their standard rate (DPH Tr. 32-33). Provider Agency does not have students who are covered by insurance for SETSS (DPH Tr. 27). Approximately two years ago the rate was lower, but only as low as $125 per hour for “very easy” cases (DPH Tr. 31). Student has a very hard time connecting with a special education provider and a lot of resources were needed to prompt Student to communicate with and work with the direct provider, thereby further justifying the rate of $195 (DPH Tr. 26).
LEGAL STANDARDS AND FRAMEWORK
Burden of Proof
Except in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing. See Education Law § 4404(1)(c); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012).
FAPE
The IDEA provides that children with disabilities are entitled to a FAPE. See 20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). See 20 U.S.C. § 1401(9). A school district has offered a student a FAPE when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
Dual enrollment
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. See 20 U.S.C. § 1412(a)(l)(A); Educ. Law § 4402(2)(a), (b)(2). 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 C.F.R. § 300.137(a). Under New York State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made. See Educ. Law § 3602c(2). Then, the district of location's CSE must review the request and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]." Educ. Law § 3602-c(2)(b)(l).
The implementation of IESP services falls on the district of location insofar as "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." 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.” Educ. Law § 3602-c(2)(b)(1). Additionally, 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.
The District failed to provide Student a FAPE on an equitable basis for the 2022-2023 school year. The last IESP drafted was the November 9, 2020 which lists an annual review date of November 9, 2021 (Ex. B-1). The CSE failed to convene by November 9, 2021, thereby failing to provide Student a FAPE on an equitable basis.
District Representative #2 agrees that Student is entitled to SETSS and that it is the District’s “duty to locate and assign teachers” for this dually enrolled Student (DPH Tr. 36, 37). However, the District did not provide those teachers. Left with no IESP, and therefore no special education or related services, Parent sought the services recommended in the IESP dated November 9, 2021. Despite District Representative #2’s repeated references to the Parent “failing to lift a finger” to contact DOE-approved providers (DPH Tr. 36, 37, 39), such is not required. More than that, the District’s position is controverted by the record. Parent called approximately eight to ten independent SETSS providers on a list maintained on the DOE’s website (Ex. D-1; DPH Tr. 13-14). None of them were able to provide services to Student (Ex. D-2; DPH Tr. 13-14). Further, despite the District’s position, Parent was not required to contact the CSE for additional help (DPH Tr. 14). After the District did not provide the SETSS and Parent was unable to locate a DOE-recommended provider to administer the services to which Student was entitled, Parent sought SETSS through Provider Agency (Ex. D-1, 2; DPH Tr. 13-14).
A district cannot be absolved of its statutory obligation to implement services for Student simply by being inactive in implementing the mandated services. The DOE had the obligation to provide services to the Student in conformity with the IESP. See Educ. Law § 3602-c(2)(a),(b)(1). In failing to do so, the DOE failed to provide Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic school located within the school district.
REMEDIES
Compensatory Relief
The remedy for a school district’s failure to provide appropriate equitable services required under Education Law § 3602-c is similar to the remedy for a school district’s failure to provide appropriate services under the IDEA. See Application of a Student with a Disability, Appeal No. 20-023, citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 (D.Conn. 2017). Under the IDEA, courts can “grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA (see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 [2d Cir. 2002]), “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme, 790 F.3d at 454).
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). 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. See P. v. Newington, 546 F.3d at 123. Compensatory education can serve as a “replacement of educational services the child should have received in the first place,” and any award “should aim to place disabled children in the same position they would have occupied but for the school district’s violations of IDEA[.]” Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that “[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act”).
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 remedy. See Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-79 (7th Cir. 2015). Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers. See Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 (D. Minn. 2022), citing Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2019).
In this case, the DOE did not carry its burden. As noted above, New York State law places the burden of production and persuasion in this type of case entirely on the DOE. See N.Y. Educ. Law § 4404(1)(c). The DOE is, therefore, required to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that Student would have been but for the denial of a FAPE.
The District had an opportunity during the DPH to set forth its position regarding the appropriate compensatory remedy. The District elected not to present documentary evidence or witnesses (DPH Tr. 5, 6). Further, as explained above, the District mischaracterized Parent’s duty and testimony (DPH Tr. 36-40). Additionally, during its closing statement, the District used Parent’s settlement negotiations with the District against Parent to explain why Parent was not entitled to funding of SETSS at Provider Agency’s prevailing rate (DPH Tr. 38). Finally, without any testimony or documentary evidence in the record, the District referenced settlements in other cases to support its position that Parent is not entitled to funding at the Provider’s prevailing rate (DPH Tr. 38-39). Ultimately, looking at the evidence and testimony, the District did not meet its burden to prove an appropriate compensatory education remedy. Burlington/Carter Analysis As noted, the District’s position is that a Burlington/Carter analysis applies in this situation, whereas Parent’s Attorney believes this matter should be decided based on a compensatory analysis only. Using that standard, I have found that Parent is entitled to the relief requested. Using a Burlington/Carter analysis I come to the same result as I do not find that the rate requested is unreasonable.
The State Review Office (SRO) has held that when, like here, the parent has not already paid the SETSS provider, and seeks direct funding rather than reimbursement, the “matter is in a subset of more complicated cases in which the financial injury to the parent and the appropriate remedy are less clear.” Application of a Student with a Disability, Appeal No. 20-115 citing E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014) (holding that equitable considerations allow for direct payment for tuition where the parents were legally obligated to make payments but had not done so due to a lack of financial resources). Because Parent had to find a provider on their own and because “caselaw supports reimbursement and direct remedies in a unilateral placement case,” the SRO has determined that the question of whether a SETSS provider should be directly paid is somewhat similar to the Burlington/Carter framework, which “forecloses any complete disavowal of the parent’s burden of production and persuasion related to the private, unilateral services obtained by the parent.” Application of a Student with a Disability, Appeal No. 20-115 (finding, inter alia, the analysis "unworkable to the extent that the SETSS services can be construed as a state-approved option”).
In determining whether a provider agency’s rates are reasonable and appropriate under the circumstances, various factors have been found relevant, including: the provider’s explanation of the rate, including its costs and the qualifications of its instructors (Application of a Student with a Disability, Appeal No. 20-140 [while “[g]enerally, teachers at a unilateral placement need not be State-certified . . . there must be objective evidence of special education instruction or supports that are specially designed by . . . providers . . . who have reasonable qualifications that are specifically related to the student’s deficits”]); the value that specialized certification, such as a bilingual extension, adds to instruction (Application of a Student with a Disability, Appeal No. 21-
183 [approving compensatory SETSS by a bilingual reading specialist at a rate not to exceed $200 per hour]); and the parent’s efforts to locate a DOE-approved SETSS provider from a list provided by the District to the parent (Application of a Student with a Disability, Appeal No. 21-096). Additionally, one must look to whether the parent directly paid the provider or is contractually obligated to pay the provider in the event the District is not ordered to fund SETSS at the requested rate. See e.g. Application of a Student with a Disability, Appeal No. 21-068 (holding that “it is not appropriate equitable relief . . . to require the district to either reimburse the parent for the costs of SETSS or to directly fund SETSS” where “there is inadequate proof that the parent has expended any funds to pay for SETSS . . . or is legally obligated to do so”). Ultimately, in light of these factors, I must determine whether the requested rate is unreasonable. See e.g., Application of a Student with a Disability, Appeal No. 21-138 (determining that “there is no basis for a finding that the rate of $175 was unreasonable”). Financial Officer at Provider Agency testified that the rate for SETSS is $195 per hour (Ex. C; Ex. D-2; Ex. E-1; DPH Tr. 20). The actual provider is paid approximately $95 per hour, with the remainder of the rate funding four main areas, including supervision, curricula and materials, staffing and overhead (DPH Tr. 20, 21; Ex. E-1). The rates also accounts for high interest loans Provider Agency has taken out due to the “exorbitant amount of time” it takes for the DOE to reimburse Provider Agency, which is between eight and eighteen months (Ex. E-1, 2; DPH Tr. 21). Finally, the rates are based on the rates other agencies charge, with Provider Agency’s rate being in the middle tier of other agencies’ rates (DPH Tr. 21-22). Financial Officer also explained that the current rate is their “standard rate,” and is the same for “DOE-funded” and “non-DOE-funded” students (DPH Tr. 26-27, 31, 32-33). Financial Officer also testified that approximately two years ago the rate was lower, but only as low as $125 per hour, and only for “very easy” cases (DPH Tr. 31). Additionally, as to this Student, the rate was further justified as Student had a hard time connecting with a special education provider and a lot of resources were needed to prompt Student to communicate with and work with the direct provider (DPH Tr. 26). Further, Parent signed a contract documenting that Provider Agency intends to provide five periods of SETSS per week at a rate of $195 per hour, and that Parent is liable for the “full amount in the event that the Impartial Hearing Officer does not issue a ruling for the full amount requested” (Ex.
C; PH Tr. 15-16).
Finally, I do note that the SRO opinions that examine these cases through the Burlington/Carter lens look to when the parent notified the District of the enhanced rate claim as this establishes the first date upon which the District would have had an opportunity to modify its offered rate for SETSS in light of the parent’s claims. See Application of a Student with a Disability, Appeal No. 21-138 (finding further that despite the per se reasonableness of the rate, a reduction in rate that had been imposed by the IHO was justified where the parent did not provide a ten-day notice (TDN), per 20 U.S.C. § 1412[a][10][C][iii] and 34 C.F.R. § 300.148[d][1]). I find that there is no evidence before me regarding notice. However, in light of all the factors described above, I find the rate of $195 for SETSS reasonable.
OTHER CONTENTIONS
Other than the relief set out in my Order below, I find the Parties’ remaining contentions to be unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all of Parent’s remaining claims not discussed herein are dismissed with prejudice
ORDERS
IT IS HEREBY ORDERED THAT the Department of Education (“DOE”) shall fund Special Education Teacher Support Services (“SETSS”) five times per week to be administered in REDACTED by a licensed special education teacher of Parent’s choosing at a rate not to exceed $195 for any period during which said services are not provided by the DOE for the 2022-2023 school year; and it is further
ORDERED THAT the DOE shall reimburse Parent for the cost of the SETSS described above within 15 days of receipt of proof of payment and an accompanying sworn affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT the DOE shall pay to the Provider listed above within 15 days of receipt of invoices for services rendered and an accompanying sworn affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT the DOE shall fund Speech Language Therapy (“SLT) two times per week for 30 minutes each for the 2022-2023 school year by issuing Related Services Authorizations (“RSAs”) within 15 days of this Order; and it is further
ORDERED THAT if Parent requests assistance finding a provider to provide the above services at any time, the DOE must locate three providers who are ready, willing, and able to begin providing the services to the Student according to the terms of this order. If Parent presents a good faith basis for rejecting the three providers, the DOE must locate two additional providers from which Parent may choose. The DOE shall not be required to identify more than five providers in any given six-month period. Nothing stated here prevents Parent from locating and utilizing a provider of their own choosing; and it is further
ORDERED THAT to the extent such services, as described above, are not utilized by Student by one year from the date of this Order, any remaining services shall expire.
February 17, 2023 (signed electronically)
Ginger James 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.
APPENDIX A- REDACTION IDENTIFICATION PAGE
Redacted Information Term Used In FOFD
REDACTED Student
REDACTED Parent
REDACTED Parent’s Attorney
REDACTED District Representative #1
REDACTED District Representative #2
REDACTED District
REDACTED Private School
REDACTED Financial Officer at Provider Agency
REDACTED Provider Agency
APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Due Process Complaint 09/06/2022 6 pages
B. IESP 11/09/2020 12 pages
C. Parent Contract 09/01/2022 1 page
D. REDACTED Affidavit 11/24/2022 2 pages
E. REDACTED Affidavit 11/23/2022 2 pages
DOE EXHIBITS
None
IHO EXHIBITS
I. DOE Statement on Pendency 11/10/2022, Emails Regarding Parent’s Attorney’s Request 11/14/2022, for Due Process Hearing and Extension of the 11/21/2022 and 11/07/2022 2 pages
II. Compliance Date 11/22/2023 11 pages
III. Order on Pendency 12/1/2022 15 pages
Footnotes
[1] No personal identifying information is contained within the body of this Findings of Fact and Decision (“FOFD”). For personal identifying information, please refer to the attached appendix. Further, this FOFD contains no references to the gender binary. The pronoun “they” is used as needed.
[2] References to the transcript from the Pre-Hearing Conference are denoted “PHC Tr.” References to the transcript from the Pendency Hearing are denoted “Pend. Tr.” Reference to the appearances held on December 1, 2022 and January 5, 2023 are denoted “Tr. #1” and “Tr. #2,” respectively. References to the transcript from the Due Process Hearing are denoted “DPH Tr.”
[4] Settlement conferences are conducted by an OATH IHO not assigned to the case whose purpose is to aid the parties in exploring and facilitating a resolution to the DPC. The subject of the conferences is confidential, and the parties are directed to attend with knowledge of the dispute and settlement authority should there be an interest in resolution.
[5] There was no testimony regarding whether Student is currently receiving SLT, but Provider Agency is only providing SETSS.
[6] Although Parent testified on cross-examination that they were aware that the District offered a resolution that “matches the specifics” of what Parent sought in the DPC, the Parties’ arguments support that the resolution did not “match the specifics” as to rate (DPH Tr. 14).