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CASE NUMBER: 581848 - NYC: 233681
FINDINGS OF FACT AND DECISION
Case Number: 233681
Student’s Name: [REDACTED]
School District: [REDACTED]
Impartial Hearing Officer: Richard J. Zeitler, Jr.
Date of Filing: 09/07/2022
Hearing Requested by: Parent
Date of Hearing: [REDACTED]
Record Close Date: 01/14/2023
Date of Decision: 01/20/2023
Names and Titles of Persons Who Appeared [REDACTED]
For the Student
[REDACTED], Esq.
[REDACTED], Parent
[REDACTED], SEIT Provider For the New York City Department of Education
[REDACTED], Esq.
[REDACTED], DOE School Psychologist
Aslo Present
Language Line Interpreter [REDACTED]
Background
On September 6, 2022, the Parent, by and through the Parent’s Attorney, filed a due process complaint (DPC) against the New York City Department of Education (DOE or Department),[1] on behalf of the Student, under Case No. 233681, pursuant to the Individuals with Disabilities Education Act (IDEA or the Act).[2] The DPC asserts that the Student has been denied a free and appropriate public education (FAPE), in that the Department has failed to provide the Student with five hours per week of special education itinerant teacher (SEIT) services for the 2022-2023 school year.[3] The DPC further alleges that, in anticipation of the 2022-2023 school year, the Parent attempted but was unable to find a qualified at-home SEIT services provider that could administer the services mandated in the last agreed upon Individualized Education Program (IEP), which was developed on May 18, 2021, at the standard rate paid by the DOE. The Parent now requests that the Department fund the cost of SEIT services for the 2022-2023 school year at an enhanced rate.[4] The Parent also moved for an Order of Pendency for the services described in the May 18, 2021 IEP.[5]
Procedural History
I was appointed the impartial hearing officer (IHO) over this matter on October 3, 2022. On October 31, 2022, a settlement conference was held, and on December 15, 2022, I issued a Scheduling Order.[6] I also issued Orders of Extension on November 24, 2022, and December 15, 2022.[7] The merits hearing was held before me on [REDACTED],[8] wherein all of the exhibits were admitted into evidence.[9] The Department presented the DOE School Psychologist as its witness, while the Parent offered the testimony of the Parent and the Director of the SEIT Provider Agency.[10] This decision now follows.
I. Order on Pendency In the DPC, the Parent asserts that pendency lies in the May 18, 2021 IEP,[11] notwithstanding that a new IEP was issued on March 29, 2022.[12] The Department’s Attorney offered no contest to the Parent’s application.
A child is entitled to remain in his or her placement at public expense during the pendency of a dispute over an individualized education program (IEP), regardless of the merits of the dispute or the outcome of the relevant proceedings.[13] The “pendency” provision of the IDEA requires a school district “to continue funding whatever educational placement was last agreed upon for the child until the relevant administrative and judicial proceedings are complete.”[14] It has the effect of an “automatic preliminary injunction” to maintain a disabled student’s educational status quo,[15] and it is triggered immediately after a parent or guardian files a due process complaint on behalf of the Student.[16]
The consideration of the specific placement and program during pendency necessitates an inquiry into what is required to maintain the student’s "then current educational placement” until the dispute is resolved.[17] Hearing officers and courts have the authority to address disputes regarding the pendency placement and/or program, and to determine what constitutes the then current educational placement.[18] The phrase “then current educational placement” is not defined in the IDEA or New York statute, but it has been found to mean “the last agreed upon placement at the moment when the due process proceeding is commenced,”[19] including: “(1) 'the placement described in the child's most recently implemented IEP'; (2) 'the operative placement actually functioning at the time when the stay put provision of the IDEA was invoked'; or (3) 'the placement at the time of the previously implemented IEP.'"[20] In the DPC before me, and again at the hearing, the Parent asserted that pendency should be based on the Student’s last agreed upon IEP dated May 18, 2021, which recommended five (5) hours per week of SEIT services and two (2) sessions per week (30 minutes each) of Speech-Language Therapy (SLT), both in English and both at a location of the Parent’s choosing.[21] At the hearing, the DOE’s Attorney expressly did not contest the request, effectively waiving any objection to Parent’s position on the source and substance of Student’s pendency placement. Given that there is no dispute that the May 18, 2021 IEP represented the Student’s last agreed-to placement and program, I find that pendency shall be granted in that IEP.
II. Findings of Fact and Decision
Findings of Fact
At the hearing, the following was not in dispute. The Student is [REDACTED] years old and attends the Public School for the 2022-2023 school year.[22] In the March 29, 2022 IEP, the Student was classified by the Committee on Special Education as a student with a Speech or Language Impairment,[23] while the May 18, 2021 IEP classified the Student as a “Pre-K[indergarten] Student with a Disability.”[24] The evaluative materials the CSE reviewed for the 2021 IEP indicated that the Student scored “poor” in expressive language skills and total communication skills, and “below average” scores in cognitive skills, receptive language skills, and adaptive skills.[25] He was described as having a “poor ability to understand spatial concepts” and “whole/part relationships, [and to] follow oral directives without gestural cues.”[26] His “expressive language delays [were] characterized by a decreased ability to combine words to produce a variety of 2-word utterances, use pronouns[,]... combine words to produce a 3-word utterance, answer logical questions, [and] tell what an object is used for.”[27] At the time, the CSE also noted that his “production was often unclear when attempting to produce multisyllabic words” and he had “unintelligible speech in his verbal output.”[28] The Management Needs section listed the “resources... needed to address [the Student’s] needs[:]... prompting, modeling and repetition; visual, verbal, gestural and tactile cues to address developmental delays as well as strategies to address receptive and expressive language delays.”[29]
On the above findings, the CSE recommended five hours per weeks of SEIT services (one hour per day), as well as two 30-minute sessions of SLT per week, both with individualized service, and both “at an early childhood location selected by the Parent.”[30] The services were also offered for the full 12-month extended school year.[31]
In the 2022 IEP, the CSE described improvement in the Student’s skill levels. His listening comprehension and oral expression were in the average range (27th and 55th percentiles, respectively), while his alphabet writing fluency was “high average” and his word reading was “Very High.”[32] The IEP team took note that the Student “receive[s] SEIT services at home” and that his “response to the session[s] is positive” and that “[h]e seems to enjoy participating in the SEIT sessions.” It also found that “some children have trouble understanding him” some of the time,[33] and that the Parent was “concern[ed] about the clarity [of the Student’s] speech” in that his “speech with unfamiliar people is not clear, making [it] hard for other[s] to understand.”[34] For example, “during his last visit with the pediatric[ian], the doctor was having a hard time understanding what [the Student] was communicating.”[35] The Management Needs section was almost identical to the 2021 IEP, describing the Student’s needs as “prompting, modeling and repetition as well as visual, verbal, gestural and tactile cues to address his language delays.”[36] The CSE removed the recommendation of SEIT services, leaving only the two 30-minute sessions of SLT per week, now in a group setting at a speech provider’s office, and only for the regular 10-month school year.[37]
Department’s Case
As its witness, the DOE produced the School Psychologist, who testified as follows. He is a Certified School Psychologist, and has been employed by DOE for over eight years. He administered a psychoeducational evaluation of the Student in March of 2022, which is the evaluation described in the 2022 IEP. This was performed as part of the “Turning 5” process, wherein the IEP and the evaluation are meant to provide recommendations during the Student’s transition from being a preschooler to a school-aged student.
The standard evaluation he performed of the Student was the Wechsler Individual Achievement Test (WIAT). The Student measured “average” to “very high average” in all categories, which indicates that the Student was learning at grade level.[38] When the CSE convened, the Parent noted that the Student still struggled with understanding and reading all of the letters of the alphabet.[39] Because the Student’s skills had improved, however, “we felt that general education with related services, such as Speech[-Lanugage Therapy,] was appropriate.”[40] Continuing special education services was not warranted “due to his abilities in the classroom.”[41] In his most recent report card, he was passing all his classes and meeting his goals.[42] The Parent was provided with a translator for the IEP meeting and she was in agreement with the recommendations of the rest of the team, including that the Student no longer needed special education instruction.[43]
On cross-examination and upon further questioning, the School Psychologist testified as follows. The Student may have said all of his letters during the psychoeducational evaluation but not in the classroom or at home; it is also age-appropriate for a student to not know all the letters of the alphabet.[44] When asked if any consideration was given to the fact that the Student may have been scoring “high” because he was receiving five hours per week of SEIT services when he was evaluated, the School Psychologist responded, “If that was the case, the SEIT did work and therefore he no longer required it” and added, “my scores alone don’t determine the recommendations, it comes from all areas” and the team agreed, including the teacher and the Parent.[45] The Student’s “average” scores in the categories of Listening Comprehension and Oral Expression were 27th percentile and 55th percentile, respectively, which meant that 73% and 45% of similarly-situated students would still perform better than the Student, as “average” is based upon a score between the 25th and 75th percentiles.[46] He had no recollection as to whether the services described in the 2021 IEP were being implemented at the time of his psychoeducational evaluation of the Student.[47]
In further support of its case, the Department offered the following: a Consent for Additional Assessments; a SLT report dated August 13, 2021; a Turning-Five SLT report; a report of the SEIT Provider Agency dated February 8, 2022; the Notice of IEP Meeting for the Turning Five 2022 IEP; an email regarding consent for the Student to receive tele-therapy; a DOE Prior Written Notice (PWN), dated May 29, 2022, recommending a general education school for the 2022-2023 school year; and a PWN dated March 29, 2022, which had not yet recommended a specific school.[48]
Parent’s Case
Parent The Parent was the first witness, and she testified as follows. The Student enjoys school but still struggles with English language arts (ELA) and mathematics.[49] He has been doing well, completing his homework, and getting good grades with the help of the SEIT, who comes to the house to help the Student,[50] five days per week.[51] The Student has received these services since 2021.[52] He needs the services because the SEIT “reinforces what he learns in school here [at home].”[53] She was not provided with a translator during the 2022 IEP meeting.[54] The Parent signed the contract with the SEIT Provider Agency on the understanding that “the services provided to my son would be free and they would be charged to the Department of Education.”[55]
SEIT Provider Agency Director The Director’s testimony was provided by affidavit,[56] which included the following. The Agency provides the special education teacher for the Student for the 2022-2023 school year.[57] The special education teacher is certified.[58] The Agency has been providing five (5) hours per week of special education services to the Student since December 2, 2021.[59] The Agency charges $150 per hour for its services.[60] Attached to the affidavit were the Special Education Teacher’s special education certificate, her bilingual certificate extension, and a printout listing the qualifications of another special education teacher from the Agency who had previously worked with the Student and who drafted a SEIT status report for the Student on August 16, 2022.[61]
Department’s Closing In closing, the Department argued as follows.[62] The March 29, 2022 IEP was procedurally and substantively appropriate, and provided the Student with a FAPE for the 2022-2023 school year. The School Psychologist performed a comprehensive psychoeducational evaluation of the Student, attended the 2022 IEP meeting, and properly considered the results of the testing, as well as the input of the other team members, including the Student’s teacher and the Parent, both of whom supported the program. The IEP is appropriate because it recommended a program specific to the Student’s needs, and it has allowed him to make meaningful progress, as the Student is on-grade level and his report card indicates he is doing well academically.
The SEIT services that the Parent unilaterally seeks, on the other hand, is too restrictive, given that the Student’s comprehensive testing and his teacher’s reports show that he can function within a mainstream classroom environment. Providing afterschool services would go beyond the meaningful benefit the Student has received and it would impermissibly maximize services. Finally, the Parent has not demonstrated that she has an obligation to pay for the services, and there is no evidence of her financial inability to pay, which should preclude direct funding.
In closing, the Parent contended the following.[63] This is a young student who works very hard and has achieved what he has because he receives an hour of SEIT services every day. The Parent disputes that she received an interpreter or reliable interpretation services during the March 29, 2022 IEP meeting, which calls into question whether she truly understood that special education services were being removed. Substantively, the Department has not met its burden to prove that the 2022 IEP described an appropriate program, as it discounted the effect the SEIT services had on the Student's performance.
Witness Credibility
Having reviewed all the testimony and exhibits, I find as follows. The evidence submitted by the Parent, including witness testimonies and documentary exhibits, were detailed, comprehensive, and consistent with the relevant allegations in the due process complaint. The Department’s exhibits were likewise detailed, comprehensive, and consistent. I therefore credit both the Parent’s witnesses and all the exhibits. Finally, I credit the Department’s witness as to his testimony of facts, except with respect to a translator being provided at the March 29, 2022 IEP meeting. The School Psychologist’s recollection that there was an interpreter is not consistent with the record. The 2021 IEP expressly includes on the Attendance Page the name and identification number of a translator who was present for the meeting,[64] while the subject 2022 IEP mentions no translator anywhere, either on the Attendance Page or otherwise.[65] In addition, it is hard to imagine that the Parent would have readily agreed with the recommendation to remove special education instruction, as the School Psychologist testified, when the Parent has continually fought for her son to receive 12-month special education services since the 2021-2022 school year. I have no reason to doubt the School Psychologist’s recollection of what the Parent said at the meeting; however, I find that this calls into question whether the Parent appreciated what was happening, which in turn creates doubt about whether there was adequate translation, or any translation at all. For these reasons, I find that the Parent was not provided with proper interpretation at the 2022 IEP meeting.
Finally, and notwithstanding the sincerity of the opinion, I give only a modicum of weight to the School Psychologist’s testimony that the Student no longer required special education services. This will be explained further in my analysis below, as will the weight I am affording the rest of the relevant evidence.
Legal Framework The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[66] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP or IESP.[67] When the program is developed in New York City, a FAPE requires the DOE to both comply with the procedural requirements set forth in the IDEA, and recommend a placement and program that are reasonably calculated to enable the student to receive educational benefits.[68]
If a procedural violation is alleged, courts and IHOs may find that a student did not receive a FAPE if the procedural inadequacies: (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits.[69] In general, however, the decision should be determined on substantive FAPE grounds,[70] that is, whether the school district “provid[ed] personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”[71]
Substantively, school districts must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs.[72] While the law does not require the CSE to adopt the parent’s preferred program or placement,[73] an IEP must still include a statement of the student's present levels of academic achievement and functional performance, establish annual goals designed to meet the student's needs resulting from the student's disability and enable the student to make progress in the general education curriculum, and must provide appropriate special education and services.[74] Appropriateness means that the IEP accurately reflects the results of evaluations to identify the Student's needs,[75] and then provides for the utilization of sufficient special education services,[76] and then is properly implemented.[77] In order to demonstrate a FAPE, the Department must offer “an IEP that is ‘likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement.’”[78] The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.”[79]
If a dispute arises between a parent and a school district over the provision of services under an IEP, review may be obtained via an impartial due process hearing, as called for by the IDEA.[80] The remedies available are those reserved for a lack of FAPE under the IDEA, with the only limitations being that they must “be appropriate in light of the purpose of the Act,”[81] and that damage awards are not available under the IDEA.[82] An IHO “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[83] In crafting a remedy, I am mindful that, regardless of any deficiencies in the Parent’s justification for a particular rate paid to a provider, the Department is nevertheless obligated to fund the appropriate services.
Analysis
Under the IDEA and the NY State Education Law, school districts have the burden of proof that a FAPE has been provided to the student, except that where tuition reimbursement is sought, the parent has the burden of proof with respect to the appropriateness of the parent’s chosen educational placement.[84] I must, therefore, determine whether the Department met its burden to demonstrate that its offered program was reasonably calculated and implemented to provide this Student with educational benefits.
FAPE
I find, upon the record of this case and the applicable law, that the issue of FAPE must be decided as a substantive matter. To be sure, there are procedural deficits, especially with respect to the Parent having been provided inadequate interpretation at the March 29, 2022 IEP meeting, as well as a dearth of evidence that the Department sent any of the mandatory documents to the Parent in her native language, which the Department knew of since at least the 2021 IEP meeting.[85] However, and notwithstanding the DOE’s responsibility to make sure that IEP meeting participation and documents are in the parent’s primary language, it has been held that such procedural violations must be alleged in a DPC,[86] and the DPC before me mentions no procedural errors whatsoever, let alone the issue of a lack of (or improper) translation. I therefore must treat these procedural shortcomings as not before me.[87]
Substantively, it is the Department’s burden to demonstrate that the Student’s IEP developed for the current school year provided a FAPE. In support of its case, the Department relied primarily upon the School Psychologist’s testimony, his psychoeducational evaluation, and the IEP that resulted from his participation at the meeting.[88]
The IEP was developed with the requisite information, including present levels of academic achievement and functional performance, and measurable goals.[89] There is also a discussion of the Student’s WIAT results and other indicia of academic skillsets.[90] The 2022 IEP acknowledges that the Student had been receiving at-home SEIT services at five-times per week, in accordance with the previous IEP.[91] It further notes that the Parent reported how the Student still struggles to communicate with others, and specifically that “some children have trouble understanding him[,]”[92] as well as her “concern about the clarity [of his] speech” and how it is “hard for other[s] to understand” the Student,[93] including the example that “during his last visit with the pediatric[ian], the doctor was having a hard time understanding what [the Student] was communicating.”[94] The Management Needs section of the IEP reflects the Student’s continuing communication difficulties, in that it carried over his needs for “prompting, modeling and repetition as well as visual, verbal, gestural and tactile cues to address his language delays”[95] from the previous 2021 IEP.[96]
Given the above, it was incumbent upon the DOE to explain and justify why all of the Student’s special education services were withdrawn from the Student in the 2022 IEP, leaving only the related service of SLT, as well as why services were reduced to a 10-month school year.[97]
The School Psychologist offered two explanations for such a radical change in services. First, he relied upon the WIAT scores as proof that the “the SEIT did work and therefore [the Student] no longer required it[.]”[98] Second, he asserted that the Student’s teacher and the Parent agreed that the Student no longer required special education services.[99] I am not persuaded by either of these positions.
It is undisputed that the Student had been receiving five hours of at-home SEIT services since the 2021-2022 school year, including through the summer months, when the extended current 2022-2023 school year began,[100] and into the current school year. The School Psychologist testified that he could not recall whether the Student was receiving SEIT services at the time of his evaluation of the Student; however, his psychoeducational evaluation of March 4, 2022, specifically states that the Student “is recommended for SEIT services, 5 hours week” and that “[h]e seems to enjoy participating in the SEIT sessions.” It is therefore clear to me that the School Psychologist was aware that the Student had been benefitting from the services of the SEIT at the time of the evaluation. Despite this, the psychoeducational report, the 2022 IEP, and the School Psychologist’s testimony are each devoid of an explanation as to how or why the Student’s better performance at the time of the evaluation could be divorced from the contemporaneous SEIT service, and thus how the Student would still have been offered an opportunity for meaningful benefit in a general education setting if that special education support were removed. This applies equally to the School Psychologist’s focus on the Student meeting his goals and his positive report card,[101] as the SEIT services have been in place continually as his grades and performance have improved.
Without more persuasive evidence, I cannot find that DOE demonstrated that special education had somehow run its course and was no longer necessary. As such, the Department did not prove by a preponderance of the credible evidence that the removal of SEIT services would have resulted in an opportunity for something more than “trivial advancement.’”[102]
I further find the Department’s remaining argument, that the rest of the team agreed with the School Psychologist, without merit. I already have concluded that the Parent was not provided with proper translation, so she could not have knowingly and voluntarily agreed to remove SEIT services. It is also of no consequence if the teacher or other members of the team agreed with the School Psychologist, as I have already held that his conclusions were not based upon adequate justification. For these reasons, I conclude that the Department failed to establish FAPE appropriateness under the IDEA, i.e., that the IEP provided for the utilization of sufficient special education services,[103] or that it was “reasonably calculated to provide some ‘meaningful’ benefit.”[104] Therefore, the DOE did not substantively provide the Student with a FAPE for the 2022-2023 school year.
Remedy
There being no FAPE, I must next determine what award, if any, should be implemented to ensure that the Student receive the appropriate level of services. Even if the Department had offered a more robust program for the current school year, there is no indication that it would have been implemented properly because it was undisputed that the “[P]arent was... not able to locate providers to work with the Student at the DOE’s standard rates for the 2022-2023 school year and the DOE did not provide any” such providers.[105] Ultimately, the “[P]arent found providers who are willing to provide the student will all required services for the 2022-2023 school year, however, at rates higher than [the] standard DOE rate.”[106] The Department offered no evidence that it assigned or otherwise offered the Parent a special education instructor for the 2022-2023 school year, which left it to the Parent to find a provider. This is inconsistent with the IDEA, as the school district must implement the program; in fact, it has been held that the Department may not effectively compel the Parent to resort to self-help in obtaining a provider.[107] Such a “de facto delegation from the district to the parent of the obligation to find a... provider... at an acceptable rate is manifestly unreasonable,”[108] and a violation of State law.[109] It is therefore not unreasonable that the Parent is requesting a higher rate for the SEIT provider, given that the Department offered no assistance and the Parent was unable to find one at the Department’s standard rate.
When a parent seeks direct funding to the provider, as here,[110] 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.”[111] Because the Parent had to find the provider on her own and because “caselaw supports reimbursement and direct remedies in a unilateral placement case,” the SRO has determined that the question of whether a special education 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.”[112] Thus, in a case such as this, where the central issue is whether the provider should be remunerated with an enhanced rate over what the Department normally pays, the Parent’s evidence must be scrutinized, consistent with my equitable authority and my obligation to ensure that the remedy “be appropriate in light of the purpose of the Act.”[113] The evidence therefore must show that the SEIT Provider Agency’s rates are reasonable and appropriate under the circumstances.
The factors that have been found relevant to the reasonableness of a rate include: the Provider’s explanation of the rate, including its costs and the qualifications of its instructors[114]; the value that specialized certification, such as a bilingual extension, adds to instruction[115]; the Parent’s efforts to locate a DOE-approved provider from a list provided by the Department to the Parent[116]; and whether the Parent directly paid the Provider or is contractually obligated to pay the Provider in the event the Department is not ordered to fund the service at the requested rate.[117] I will therefore determine, in light of these factors, whether the requested rate is unreasonable.[118] Finally I will consider when the Parent notified the Department of the enhanced rate claim, because this establishes the first date the DOE would have had an opportunity to modify its offered rate in light of the Parent’s claims.[119]
Here, the SEIT Provider Agency’s Director explained that the Agency currently charges $150 per hour.[120] In support of this rate, the Agency included proof of the certifications of the two special education teachers that work and have worked with the Student since last year, including their “Student’s with Disabilities” certifications (“Birth – Grade 2” for one of them) and a bilingual extension for the other.[121] I note, however, that the extension is not a factor in this case, where the Student’s services were recommended to be in English, notwithstanding that he is bilingual.[122]
The above evidence tends to justify the rate, which under precedent is not per se unreasonable.[123] There are, however, more factors that weigh against the rate. First, the Agency offered nothing else to explain its costs, such as overhead, including the cost of supervision and/or training of instructors, or what it pays the instructors who directly provide the services to the Student. Second, the Parent did not claim – let alone offer evidence to prove – that she was financially unable to pay for the services, which is an equitable consideration for a direct funding request.[124] Finally, and most importantly, is the contract that the Parent signed. The SRO has held it “not appropriate” to award a specific request for relief when a parent has not shown that they have “expended any funds to pay... or is legally obligated to do so.”[125] It is the parent or guardian that has standing to request the payment of services, not the third-party service provider; therefore, there must be privity between the provider and parent such that the parent is ultimately responsible for payment if the Department is not ordered to fund the services.[126] The best evidence to demonstrate this is through the contractual arrangement between the parent and the provider.
The contract offered in this case says nothing about the Parent being liable for payment, only that “Parent acknowledges that the rate Provider charges for these services is $150 per hour.” That is not sufficient. Moreover, when the Parent was asked about the contract, she volunteered that it was her understanding that she could sign it because “the services provided to my son would be free and they would be charged to the Department of Education.”[127] This is not merely tantamount to there being no contract; it is a serious breach of the Parent’s legal obligation to know she was answerable for payment at the time she signed the contract. When “there is no proof of any agreement” showing “that the parent was responsible for the costs of the... service... the parent’s request... that the services should be funded at the [provider’s] rate... must be denied.”[128] That said, the Department is nevertheless obligated to provide services, so I find it warranted to reduce the payment, not to deny it. Holding otherwise would countenance DOE’s actions in denying the Student a FAPE.
Given the serious nature of the evidence of unreasonableness, coupled with the positive evidence in support of the rate, I find it warranted, under these circumstances, and consistent with my equitable authority, to reduce the rate by half, but not less than the Department’s current standard rate. I therefore will award a rate of $75 per hour or the DOE standard rate, whichever is higher. In making this award, I am aware that SEIT services are not normally granted after a Student is no longer in preschool. The SRO has held, however, that in the appropriate case, where a student was receiving SEIT services in a prior school year and it is deemed an appropriate service after the school year ends, the “SEIT services recommended in the [prior] IEP shall for purposes of implementation be deemed the provision of 1:1 special education teacher support for the student.”[129] It is noteworthy that Department here only argued against special education services in general, not against any particular type of special education provider. My award, therefore, shall comport with the above precedent.
Finally, I must also impose a time limitation on the award. Even though the Student was entitled 12-month services under the 2021 IEP, the Department’s obligation to pay for those services should not begin until it had actual notice that the Parent sought such payment.[130] Here, the only evidence of notice is the DPC, which was filed on September 6, 2022. I therefore conclude that the Department is only responsible for payment beginning that date, notwithstanding that the Student was entitled to services beginning in July of 2022 for the current school year.
Decision and Order
It is hereby ordered,
That the New York City Department of Education shall provide the following during the pendency of this matter, retroactive to September 6, 2022, the filing date of the DPC:
• For a 12-month extended school year, Special Education Itinerant Teacher Services: 5 days per week, one hour per day, direct, individual service, at a location selected by the Parent; and Speech-Language Therapy, 2 sessions per week, 30 minutes per session, direct, individual service, at a location selected by the Parent; and, it is,
Further ordered, that in addition to Speech-Language Therapy, which will now be implemented as described in the March 29, 2022 IEP, the New York City Department of Education shall ensure the provision of and payment for special education services from a provider of the Parent’s choosing, at a location of the Parent’s choosing, for the administration of SEIT services (i.e., 1:1 support from a special education teacher),[131] at no more than five sessions per week (one hour per session), for the 12-month 2022-2023 school year, less any amounts paid under pendency, at a rate of $75 per hour or the DOE standard rate, whichever is higher, with such payment to be made for services provided as of September 6, 2022 and not before that date, and payment made within thirty (30) days of a submission to the DOE of any invoices for such services, together with an affidavit attached to each invoice attesting to the provision of the special education services administered to the Student for the period covered by each invoice, up to the end of the 12-month 2022-2023 school year; and, it is,
Further ordered, that when the CSE next reconvenes for an annual review and to develop an IEP or IESP for Student for the 2023-2024 school year, the CSE shall consider the Student’s eligibility for special education and/or related services, and it shall consider the need for 12-month extended school year special education and/or related services.
So Ordered.
Dated: January 20, 2023
Richard J. Zeitler, Jr. (signed electronically)
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.
DISTRICT EVIDENCE
Exhibit
Title
Date
Pages
1
Consent for Additional Assessments
01/19/2022
1
2
Psychoeducational Evaluation
03/04/2022
4
3
Speech Progress Report
08/13/2021
3
4
Speech Progress Report
02/01/2022
3
5
Turning -5 Quarterly Progress Report
02/08/2022
5
6
Notice of IEP Meeting
03/21/2022
3
7
IEP
03/29/2022
15
8
Consent for Tele -Therapy (Speech)
06/27/2022
1
9
Turning -5 School Location Document
05/29/2022
6
10
Prior Written Notice
03/29/2022
4
PARENT EVIDENCE
Exhibit
Title
Date
Pages
A
Impartial Hearing Request
09/06/2022
6
B
Individualized Education Program
05/18/2021
17
C
Providers’ certifications
09/01/2020
2
D
Progress Report
08/16/2022
6
E
Agreement
09/01/2022
1
F
Affidavit of [REDACTED]
12/06/2022
1
IHO EVIDENCE
Exhibit
Title
Date
Pages
I
Order of Extension
11/24/2022
1
II
Scheduling Order
12/15/2022
2
III
Order of Extension 2
12/15/2022
1
APPENDIX
Redacted Information
Term Used In FOFD
[REDACTED]
Student
[REDACTED]
Parent/Guardian
[REDACTED]
Parent Attorney
[REDACTED]
DOE Attorney
[REDACTED]
Public Preschool
[REDACTED]
Public School
[REDACTED]
SEIT Provider Agency
[REDACTED]
Director, SEIT Provider Agency
[REDACTED]
Special Education Teacher
[REDACTED]
DOE School Psychologist
N/A
Committee on Special Education/Committee on Pre-School Special Education
N/A
Principal
N/A
Case Manager
N/A
Occupational Therapist
N/A
Physical Therapist
N/A
Speech-Language Therapist
Footnotes
[1] See Ex. A-1.
[2] See 20 U.S.C. § 1415(f).
[3] See id. at A-2.
[4] See id. at A-1 to A-2.
[5] See id. at A-2.
[6] See IHO Ex. II.
[7] See IHO Exs. I and III.
[8] The transcript was unavailable for this decision; the citations to testimony are from the recording (Rec.) at the hour and minute they were spoken ([hour]:[minute]).
[9] See Exs. 1 through 10 for the Department, and Exs. A through F for the Parent.
[10] The Director did not appear, as his testimony was offered via affidavit and the Department had no cross-examination for the witness.
[11] See Ex. B.
[12] See Ex. 7.
[13] See Mackey ex rel. Thomas M. v. Bd. of Educ. for the Arlington Cent. Sch. Dist., 386 F.3d 158, 160 (2d Cir. 2004) (citing 20 U.S.C. § 1415[j]); see also Ventura de Paulino v. New York City Dep’t of Educ., 76 IDELR 173 (2d Cir. 2020) (citing Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 83 [3d Cir. 1996]).
[14] Ventura de Paulino, supra. (quoting T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151 [2d Cir. 2014] [itself citing Mackey, supra, 386 F.3d at 163]).
[15] Zvi D. v. Ambach, 694 F.2d 904, 554 IDELR 226 (2d Cir. 1982).
[16] See Letter to Winston, 213 IDELR 102 (OSEP 1987).
[17] Zvi D., 694 F.2d at 904.
[18] See Analysis and Comments to the Regulations, Federal Register, Vol 71, No. 156, Page 46704 (August 14, 2006).
[19] Arlington Cent Sch. Dist. v. L.P., 421 F.Supp. 2d 692. 696 (S.D.N.Y. 2006) (citing Murphy v. Arlington Cent. Bd. of Educ., 86 F.Supp. 2d 354, 359 [S.D.N.Y. 2000], aff’d 297 F.3d 195 [2002]).
[20] DOE v. East Lyme Bd. of Educ. et al, 790 F.3d 440, 452 (quoting Mackey, 386 F.3d at 160).
[21] See Ex. B-17.
[22] See Ex. A-1.
[23] See Ex. 7-1.
[24] Ex. B-1.
[25] See id. at B-5.
[26] Id. at B-6.
[27] Id.
[28] Id.
[29] Id. at B-8.
[30] Id. at B-17.
[31] See id. at B-18.
[32] See Ex. 7-2; see also Ex. 2-2.
[33] Id. at 7-4.
[34] Id. at 7-1.
[35] Id.
[36] Id. at 7-4.
[37] See id. at 7-9.
[38] See Rec. at 1:19 to 1:21; see also Ex. 2-2 and Ex. 7-2.
[39] See Rec. at 1:19; see also Ex. 7-3.
[40] Rec. at 1:31.
[41] Id.
[42] See Rec. at 1:33.
[43] Rec. at 1:45 to 1:49.
[44] Rec. at 1:41 to 1:43.
[45] Rec. at 1:49 to 1:51.
[46] Rec. at 1:52 to 1:55.
[47] Rec. at 1:57 to 1:58.
[48] See Exs. 1, 3 through 6, and 8 through 10.
[49] Rec. at 2:29 to 2:21.
[50] Rec. at 2:21 to 2:23.
[51] Rec. at 2:24 to 2:25.
[52] Rec. at 2:26 to 2:27.
[53] Rec. at 2:28 to 2:29.
[54] Rec. at 2:30 to 2:31.
[55] Rec. at 2:34 to 2:38.
[56] See Ex. F. The witness did not appear, as neither the Department nor myself had any questions for the witness.
[57] See Ex. F ¶ 1.
[58] See id. ¶ 2.
[59] See id. ¶ 3. I note that the affidavit states “December 2, 2022.” However, given that the Parent testified that services have been provided since December of 2021, and given that undisputed portions of the DPC make clear that the Student received an IEP in 2021 that recommended SEIT services for a 12-month school year, demonstrating that the Student has received SEIT services continually since 2021, and further given that another special education teacher associated with the SEIT Provider Agency submitted a report of the Student’s progress on August 16, 2022, see Ex. D, I find that the affidavit incorrectly listed the year as 2022, and not the factual 2021.
[60] See id. ¶ 4.
[61] See Exs. C and D.
[62] See Rec. at 2:45 to 2:51.
[63] See Rec. at 2:51 to 2:54.
[64] See Ex. B-4.
[65] See Ex. 7-14 to 7-15.
[66] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a) and (b)(2).
[67] C.F.R. § 300.13.
[68] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[69] U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
[70] U.S.C. § 1415(f)(3)(E)i).
[71] Rowley, 458 U.S. at 203.
[72] See 20 U.S.C. § 1412(a)(l)(A); Educ. Law§ 4402(2)(a), (b)(2). I note that, given the Student was in a public school receiving the subject services under an IEP and not an IESP, I find that the “dual enrollment” statute, found at Educ. Law § 3602-c(2), and the doctrine of equitable services under that law, do not pertain to this matter.
[73] See S.Y. and R.Y. v. New York City Bd. of Educ., 15 Civ. 6277 (AT), 2016 WL 5806859, at 9 (SDNY Sept. 28, 2016).
[74] See generally, 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2).
[75] See 34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii].
[76] See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[77] See 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[78] Cerra v. Pawling Cent. School Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak v. Florida Union Free School Dist., 142 F.3d 119, 130 (2d Cir. 1998).
[79] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[80] U.S.C. §§ 1221e-3, 1415(e)-(f); see also Education Law § 4404(1); 34 CFR §§ 300.151- 300.152; 8 NYCRR §§ 200.5(h)-(l).
[81] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[82] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[83] See East Lyme Bd. of Educ., 790 F.3d at 454.
[84] 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). Because this is a request for an enhance rate for special education services, I also find relevant the cases treated the issue of rate as a hybrid between unilateral placement theory cases, see, e.g., Application of a Student with a Disability, Appeal No. 20-115, and pure compensatory education cases. See, e.g., Foster v. Bd. of Educ. Of the City of Chicago, 611 Fed. App.’x 874, 878-79 (7th Cir. 2015) (compensatory education includes reimbursement for out-out-pocket educational expenses).
[85] See May 18, 2021, IEP Summary page, at Ex. B-1 (“Parent’s language(s) spoken/Mode of communication: Spanish”).
[86] See Application of a Student with a Disability, Appeal No. 21-194 (error for an IHO to rule upon a district’s translation failures as “outside the scope of the impartial hearing” where “there [we]re no allegations in the due process complaint notice regarding a failure of the district to translate documents for the parent, the lack of a translator at the December 2018 CSE meeting, a lack of a prior written notice in the parent’s native language, or the parent’s ability to participate in the December 2018 CSE meeting” and where “the district did not agree to expand the scope of the impartial hearing to include any such issue and the parent did not seek the IHO’s permission to amend the due process complaint notice”).
[87] I note, however, that if the issue were before me, on this record, I would have found that the cumulative impact of these errors had the effect of procedurally denying the Student a FAPE.
[88] See Exs. 2 and 7.
[89] See Ex. 7-1 to 7-9.
[90] Cf. id. at 7-2 to 7-3, and Ex. B-5 to B-6.
[91] See Ex. 7-1.
[92] Id. at 7-4.
[93] Id. at 7-1.
[94] Id.
[95] Id. at 7-4.
[96] See Ex. B-8.
[97] Id. at 7-9.
[98] Rec. at 1:49 to 1:51.
[99] Rec. at 1:45 to 1:49.
[100] See Ex. B-17 to B-18, Ex. D, Ex. 2-1 and 2-3, and Rec. at 2:24 to 2:27.
[101] See Rec. at 1:33.
[102] Cerra, 427 F.3d at 195.
[103] See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[104] See Mrs. B. v. Milford Bd. of Educ., 103 F.3d at 1120; see Rowley, 458 U.S. at 192.
[105] Ex. A-1.
[106] Ex. A-1.
[107] See, e.g., Application of a Student with a Disability, Appeal No. 21-068.
[108] Id.
[109] See Application of a Student with a Disability, Appeal No. 20-115 (“core instruction provided by a school district must be performed either by teachers who are employees of the district or pursuant to a contract for special education services that a district is specifically authorized by law to enter into,” id.) (internal citation omitted, emphasis added); see also Application of a Student with a Disability, Appeal No. 20-087; and Application of a Student with a Disability, Appeal No. 20-140. In other words, if the DOE is not directly performing core instruction, it should not then be passing the responsibility to contract out that instruction onto the Parent.
[110] See Ex. A-2, at point 2 of the “Proposed Solution” (“parent is seeking... funding for payment to the student’s special education teacher provider/agency” [emphasis added]).
[111] 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]).
[112] 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”).
[113] East Lyme Bd. of Educ., 790 F.3d at 454 (citation omitted).
[114] 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”).
[115] Application of a Student with a Disability, Appeal No. 21-183, at pp. 20-21 (Oct. 29, 2021) (approving compensatory SETSS by a bilingual reading specialist at a rate not to exceed $200 per hour).
[116] See, e.g., Application of a Student with a Disability, Appeal No. 21-096 (May 26, 2021).
[117] See 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”).
[118] See, e.g., Application of a Student with a Disability, Appeal No. 21-138 at pp. 12-13 (Aug. 11, 2021) (determining that “there is no basis for a finding that the rate of $175 was unreasonable”).
[119] See id. (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 CFR § 300.148[d][1]). I will contrast this decision, however, to the extent that I do not find a TDN necessary where the parent files a DPC at the beginning of the school year, which provides the same notice and opportunity for the DOE to address how it provides services to the Student as would a TDN.
[120] See Ex. F ¶ 4.
[121] See Ex. C.
[122] See Ex. B-17.
[123] Rates have been upheld at $150 hour, see Application of a Student with a Disability, Appeal No. 11-045, and $175 per hour, see Application of a Student with a Disability, Appeal No. 21-138, and even $200 per hour. See Application of a Student with a Disability, Appeal No. 21-183, at pp. 20-21 (Oct. 29, 2021) (for a bilingual reading specialist).
[124] See, e.g., Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents may seek direct funding when, “due to a lack of financial resources, [they] have not made... payments but are legally obligated to do so”).
[125] Application of a Student with a Disability, Appeal No. 21-068.
[126] See id.
[127] Rec. at 2:34 to 2:38.
[128] See Application of a Student with a Disability, Appeal No. 20-140.
[129] See Application of the New York City Department of Education, Appeal No. 20-163 (Nov. 25, 2022), at pg. 10.
[130] See Application of a Student with a Disability, Appeal No. 21-138.
[131] See Application of the New York City Department of Education, supra.