Impartial Hearing Decision

CASE NUMBER 235071

FINDINGS OF FACT AND DECISION

OF HEARING OFFICER

Case Number: 235071

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: REDACTED

District: REDACTED

Dates of Appearances: 9/14/23

Impartial Hearing Officer: Barbara Jeanne Caravello, Esq.

Actual Record Close Date: 11/2/23

Decision date: 11/10/23 Finding of Fact and Decision of Hearing Officer

NAMES AND TITLES OF THE PERSONS WHO APPEARED: On September 14, 2023

Appearing for the Parent: REDACTED, Esq.

Appearing for the District: No Appearance Finding of Fact and Decision of Hearing Officer

INTRODUCTION AND PROCEDURAL BACKGROUND

On October 14, 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 8, 2022 and requesting relief for services delivered to the Student during the 2022-2023 school year.

A hearing took place on September 14, 2023 when a decision was reached. The Parent submitted exhibits A, B and C. The DOE was not present and submitted no evidence.

ISSUES:

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.

The Parent requests that all services recommended by the District in the IESP be funded by the DOE at an “market 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.

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 Finding of Fact and Decision of Hearing Officer

Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

FINDINGS OF FACT

I find that this Student is REDACTED-years old and was classified as a Preschool Student with a Disability in the last agreed-upon IEP.

I do find that these services, as they appear in the November 10, 2021 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.

It is the District’s burden to provide the services and in this matter, I find that this burden was not met and that the Parents had no choice but to obtain services independently.

CONCLUSIONS OF LAW AND DISCUSSION

The Individuals with Disability Education Act, (IDEA) is a comprehensive statutory framework established by Congress to ensure that all students with disabilities have available to them a free and appropriate public education, (“FAPE”). See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 538 126 S.Ct. 528 (2005). A free and appropriate public education consists of 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. See, Bd of Educ. of the Henrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 188-189 (1982). Finding of Fact and Decision of Hearing Officer

In order to demonstrate that FAPE is being provided, the school district must show that it complied with the procedural requirements set forth in the IDEA and that the Individual Education Plan (“IEP”) developed by its Committee on Special Education (“CSE”) through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits, See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206.

I find that the recommendation of a program, however appropriate is meaningless if the DOE does not implement that program.

The IDEA requires that the educational needs of a student with a disability and the services required to meet those needs must be set forth annually in a written IEP which states present levels of performance, annual goals, specific services to meet those goals, the extent to which the student will participate in regular education, the initiation date and duration of services, and objective criteria for determining whether goals are being achieved. See, Walzczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998); Application of the Board of Education, Appeal No. 00-005.

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.

Here, educational instruction was recommended yet not provided by the DOE. A recommendation in an IEP is tantamount to a promise that this is the program that a student will Finding of Fact and Decision of Hearing Officer receive. The appropriate and procedurally correct recommendation of a program is one aspect of what the IDEA requires, its implementation completes the requirement.

Under New York 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 §3602c[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 allegations which in the absence of credible evidence otherwise, I have no reason to find anything but credible, state that Student was not provided an individual to deliver services and those services were required to be engaged by the Parent. 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 Finding of Fact and Decision of Hearing Officer 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. It is found that the DOE did not meet its burden to implement the recommended services and that the Parent was forced to engage a service provider.

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 and that a hearing officer or administrative judge can correctly determine an appropriate dollar amount as relief. While the finders of fact in these cases do have the authority to name a reasonable amount I am not convinced that in most cases, the IHO has sufficient evidence to determine what a fair market rate would amount to and while I find that I could name an amount, or allow the parent to request a dollar amount, another way to determine relief is to grant a “market rate” award.

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 Finding of Fact and Decision of Hearing Officer 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.

It is my understanding that the District’s Implementation Unit routinely requires contracts, invoices, affidavits and other proof that the services engaged by the Parents have been provided to the Student. This documentation should be presented to the Implementation Unit prior to funding or reimbursement.

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, rate.

ORDER AND DETERMINATION:

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

1. The DOE shall fund and or reimburse the following services by a provider of the Parent’s choosing:

• 5 periods per week of SEITS, in a group no greater than 2, in the bilingual REDACTED/English languages; along with related services consisting of: • Speech-Language Therapy, twice per week for 30 minutes, individual service, in the bilingual REDACTED/English languages; Finding of Fact and Decision of Hearing Officer

• Occupational Therapy, twice per week for 30 minutes, individual service, in the English language;

2. Physical Therapy, twice per week for 30 minutes, individual service.

3. 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.

4. All services are to be provided over a 10 month period.

5. The district must immediately upon receipt, enter this order on a system that is used to keep track of such orders.

SO ORDERED:

Dated: November 10, 2023

Barbara J. Caravello, Impartial Hearing Officer

Finding of Fact and Decision of 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. Finding of Fact and Decision of Hearing Officer

APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Exhibit Document Date # of Pages

IHO-I Amended Impartial Hearing Request 9/8/22 6

IHO-II CPSE-IEP 11/10/21 17

IHO-III Ten Day Notice 8/24/22 2