New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 583496- NYC: 235217

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

District: REDACTED

Impartial Hearing Officer: Ginger James

Date of Filing: September 8, 2022

Hearing Requested by: Parent

Date of Hearing: March 30, 2023

Record Close Date: May 21, 2023

Date of Decision: June 23, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 14, 2022

Impartial Hearing Officer #1:

REDACTED, Esq.

For the Student:

REDACTED, Esq., Parent’s Attorney #1

For the Department of Education:

REDACTED, District Representative #1

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 16, 2023

Impartial Hearing Officer #1:

REDACTED, Esq.

For the Student:

REDACTED, Esq., Parent’s Attorney #1

For the Department of Education:

REDACTED, District Representative #1

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 30, 2023

For the Student:

REDACTED, Esq., Parent’s Attorney #2

REDACTED, Parent Student

REDACTED, Special Education Supervisor at Provider Agency REDACTED, Financial Officer at Provider Agency

For the New York City Department of Education: REDACTED, District Representative #1 REDACTED, Public School Psychologist

BACKGROUND AND POSITIONS OF THE PARTIES

Parent,^[1] through counsel, filed a Due Process Complaint (“DPC”) on or about September 8, 2022.

Parent alleges that the 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. On December 29, 2021, the Committee on Pre-School Education (“CPSE”) drafted an Individualized Education Program (“IEP”) which recommended the following services: Special Education Itinerant Teacher (“SEIT”) services to be administered in a group of two, five hours per week; Speech Language Therapy (“SLT”) to be administered in a group of two, two times per week for 30 minutes; and Occupational Therapy (“OT”) to be administered in a group of two, two times per week for 30 minutes, with all services to be administered in English (“the December 2021 IEP”) (Ex. A-2). Parent alleges that, for the 2022-2023 school year, the District, through the Committee on Special Education (“CSE”), failed to recommend an appropriate placement for Student when it reduced the prior recommendation of five periods of SEIT services, which had been provided on an individual basis, to four periods of Special Education Teacher Support Services (“SETSS”) as a group service (Ex. A-2-3; Tr. #2 13-14, 22). ^[2],3 Parent further asserts that because the District failed to provide a proper placement, Parent had to “implement the SEIT program independently and seek reimbursement” (Ex. A-3; Tr. #2 14, 22).

Regarding relief, Parent seeks: 1) a finding that the March 2022 IESP constitutes a denial of a FAPE; 2) a finding that the District’s failure to recommend the continuation of the SEIT program is a denial of a FAPE; 3) a finding that the District’s failure to recommend an appropriate placement is a denial of a FAPE; 4) an order that the recommendations contained in the December 2021 IEP continue for the 2022-2023 school year; 5) an order requiring the district to fund

3 At the Due Process Hearing, and for the first time, Parent’s Attorney #2 raised that the CSE reduced the OT that had been recommended by the CPSE from two times per week for 30 minutes each to one time per week for 30 minutes (Tr. #2 14). compensatory education for any services not provided; 6) an award of attorney’s fees and expenses; 7) and any other relief that may be just and proper (Ex. A-3-4; Tr. #2 14-15, 22). 4, ^[5]

As a threshold matter, the District seeks dismissal of the DPC based upon Parent’s failure to request special education and related services on or before June 1, 2022 (Tr. #2 53-55). The District also asserts that Parent should be precluded from raising any issues other than the change from five sessions of SEIT services per week to four sessions of SETSS per week because that was the “only allegation” raised in their DPC (IHO Ex. IV-3, 4-7, 8). The District maintains that it developed an appropriate IESP for Student for the 2022-2023 school year (IHO Ex. IV-7-10, 13). Further, the District claims that Parent failed to meet their burden to prove that the program they selected was appropriate (IHO Ex. IV-10-12, 13), and that equities do not lie with Parent (IHO Ex, IV-12-13). ^[6]

Parent’s Attorney #1 counters that the District waived any June 1st challenges both by their failure to properly raise it and through their conduct, and that dismissal of this case on June 1st grounds would contradict the clear provisions set forth in 8 NYCRR § 200.5(1)(6) (IHO Ex. V-5-9). As to the merits, Parent’s Attorney #1 argues that the District failed to implement the services it recommended in the March 2022 IESP, thereby denying Student a FAPE (IHO Ex. V-1, 2). Parent’s Attorney #1 further alleges that the District failed to articulate an appropriate reason for their reduction in services to Student and failed to overcome Parent’s evidence proving that Student requires the services recommended on the December 2021 IEP (IHO Ex. V-1-3). Parent’s 4 Parent’s Attorney #2 contended at the hearing that there did not appear to be a “compensatory issue at this time” (Tr. #2 14-15). Similarly, in their Closing Brief, Parent’s Attorney #1 only requested that I issue a FOFD stating that the District denied Student a FAPE “by decreasing [Student’s] mandate from 5 periods per week of SETSS to 4 periods per week of SETSS, and reducing OT from 2 sessions to 1 per week” (IHO Ex. V-10). Further, in the DPC, Parent did not request that the District be ordered to fund any services at any specific rate (Ex. A). At the Due Process Hearing, Parent’s Attorney #2 clarified that Parent was seeking “enhanced rates” for all services (Tr. #2 14), and in their Closing Brief, Parent’s Attorney #1 requested funding at the “provider’s prevailing market rate” (IHO Ex. V-10). Parent testified that they sought funding for all services at a “reasonable market rate” (Ex. E-3). Attorneys contend that the program Parent chose is appropriate and that equities lie in Parent’s favor (Tr. #2 22; IHO Ex. V-3).

In light of the foregoing and as more fully discussed below, I am denying the District’s “Motion to Dismiss.” Regarding the merits of the case, I find that the DOE failed to offer Student a FAPE on an equitable basis for the 2022-2023 school year. I decline to order SEIT services, but have determined that Student is entitled to five hours of SETSS per week. Additionally, I find that Parent has not properly raised issues regarding OT, and thus, decline to increase Student’s OT. I further find that the program Parent selected is appropriate and that equities lie in Parent’s favor. Accordingly, I am ordering the District to fund SETSS and related services of SLT and OT at a “reasonable market rate.” I decline to award attorneys’ fees and expenses.

PROCEDURAL HISTORY

As of September 8, 2022, the date of the filing of the DPC, Student was attending “Private School” for their REDACTED year (Ex. J-1, 4, 6). ^[7]

After the filing, the Resolution Period began. It ended on October 8, 2022, with no resolution reached.

On October 19, 2022, Impartial Hearing Officer (“IHO”) #1 was appointed to this case. That appointment was rescinded, and on March 6, 2023, I was appointed IHO to preside over this matter.

No Pre-Hearing Conference (“PHC”) was held.

On December 14, 2022, Parent’s Attorney #1 and District Representative #1 appeared before IHO #1. IHO #1 granted a joint request to extend the compliance date so that Parent’s Attorney #1 could continue exploring settlement with the District, and adjourned the matter to January 25, 2023 (Tr. #1 4-5).

On February 16, 2023, Parent’s Attorney #1 and District Representative #1 appeared before IHO #1.^[8] IHO #1 informed the attorney and representative that the IHO would seek their positions on pendency by email. ^[9]

On March 6, 2023, IHO #1 issued an Order on Pendency (IHO Ex. II; Tr. #2 13).

On March 30, 2023, Parent’s Attorney #2 and District Representative #1 (“the Parties”) appeared virtually for the Due Process Hearing (“DPH”). District Representative #1 proffered Exhibits 1 through 4, including a document containing the proposed direct testimony of Public School Psychologist (Tr. #2 15-17). Parent’s Attorney #2 had no objection to their introduction, and I admitted Exhibits 1 to 3 into evidence (Tr. #2 17-18).^[10] I admitted Exhibit 4, the direct testimony, after the witness swore to or affirmed the contents of the document (Tr. #2 24-25, 43). Parent’s Attorney #2 submitted Exhibits A through J, which included affidavits by Parent (Ex. E), Special Education Supervisor at Provider Agency (“Supervisor”) (Ex. F), and Financial Officer at Provider Agency (“Financial Officer”) (Ex. G) (Tr. #2 18-20). District Representative #1 objected to Exhibit J, asserting that because it is a Progress Report dated December 2022, it was not reviewed by the IESP Team (Tr. #2 20). Parent’s Attorney #2 responded that it was relevant to demonstrate that Student required more services than those recommended on the IESP (Tr. #2 20-21). District Representative #1 had no objection to the introduction of any of the other exhibits, and I admitted all into evidence, explaining that I would accord the appropriate weight to Exhibit J (Tr. #2 20-21).^[11] District Representative #1 waived their opportunity to present an opening statement (Tr. #2 21), and Parent’s Attorney #2 presented their opening statement (Tr. #2 22). Public School Psychologist testified through an affidavit (Ex. 4), and was cross-examined by Parent’s Attorney #2 and examined by me (Tr. #2 25-37; 40-41). Parent, Supervisor and Financial Officer each testified through affidavit and each was cross-examined by District Representative #1 and examined by me (Ex. E; Tr. #2 50-61; Ex. F; Tr. #2 67-78; Ex. G; Tr. #2 83-96). I directed the Parties to submit written closing statements, including their positions on the June 1st issue (Tr. #2 54-55; 96-97). I granted the Parties’ request to extend the compliance date to allow time to receive the transcript should they have wished to incorporate it in their closing briefs (Tr. #2 98-99). I directed District Representative #1 to file their closing brief by April 17, 2023 and Parent’s Attorney by April 24, 2023 (Tr. #2 99-100).

On April 17, 2023, by email, District Representative #2 submitted a Closing Brief (IHO Ex. III-3-4; IHO Ex. IV).

On May 2, 2023, by email, Parent’s Attorney #2 submitted a Closing Brief drafted by Parent’s Attorney #1 (IHO Ex. III-1-3; IHO Ex. V).

FINDINGS OF FACT

My findings of fact as explained below were made after considering all the admitted evidence, as well as both Closing Briefs. Unless otherwise noted, I found all witnesses credible.

Student has been identified as a Student with Speech or Language Impairment (Ex. D-1), presenting with numerous deficits, including receptive language, articulation and expressive language delays, and issues associated with attentional struggles (Ex. D-1-5). Student experiences difficulties in many academic and social emotional areas, and requires a lot of extra assistance (Ex. E-1). Student is making progress with SETSS, OT and SLT and requires the supports they provide to continue improving and to remain in a “mainstream placement” (Ex. E-1; Ex. F-3).

Student and Parent reside in New York City and Student is attending Private School for the 2022-2023 school year (Ex. A). Student attends Private School Sunday through Thursday from 9:00 a.m. until 3:00 p.m. and on Friday from 9:00 a.m. to 12:00 p.m. (Tr. #2 59). Private School is located within the geographic boundaries of the DOE.

The December 2021 IEP

On December 29, 2021, the CPSE convened to determine Student’s eligibility for services through the CPSE and to develop an IEP for the remainder of the 10-month 2021-2022 school year (Ex. B-1, 2, 3). At the time, Student was REDACTED years old (Ex. B-1, 3). The CPSE relied upon various assessments and observations to develop Student’s IEP. Overall, Parent and Student’s teacher were concerned about Student’s cognitive, receptive language, auditory listening, math readiness, organization, and study skills (Ex. B-5). Student also exhibited difficulty maintaining attention, demonstrated lack of spatial awareness and did not seem to understand basic concepts (Ex. B-5). Assessments revealed that Student’s cognitive ability was in the “below average” or “average” range, and their receptive and expressive language skills were in the “below average” range (Ex. B-3). Student’s language deficits were exhibited in many ways (Ex. B-3-4), and caused Student to struggle to actively participate in the classroom and function at an age-appropriate skill level (Ex. B-3, 4). Additionally, Student exhibited attention and sensory processing deficits (Ex. B-4, 5).

The CPSE recommended that Student develop age appropriate skills in the following areas: resisting the need to touch objects and people; restraining the urge to put hands in “messy substances;” exhibiting over-responsiveness to oral stimuli; attending to tasks without supervision; learning to continue working when encountering difficulty; and attending/concentrating during group lessons and activities (Ex. B-5). As a result, the CPSE classified Student as a “Preschool Student with a Disability,” and developed an IEP recommending: SEIT services to be provided five hours per week in a group of two; SLT to be provided in a group of two twice per week for 30 minutes; and OT to be provided in a group of two twice per week for 30 minutes; with each service to be administered in English (Ex. B-1, 11; Ex. E-1; Ex. A-2). The CPSE also recommended various management needs (Ex. B-6). The projected date of annual review was “T5” (Ex. B-3). ^[12]

The March 2022 IESP

During March 2022, Public School Psychologist was assigned to conduct a “Turning 5 Evaluation” of Student, which included determining what services Student already had been receiving and in what setting, reviewing progress reports from service providers, reviewing a social history with Parent, and conducting observations and teacher interviews to determine appropriate recommendations (Tr. #2 25-26, 34; Ex. 4-2). Public School Psychologist did not speak directly with or conduct testing of Student (Tr. #2 26), but spent approximately one-and-a-half hours between classroom observation and interviewing Student’s teachers (Tr. #2 26-27).

On March 28, 2022, approximately REDACTED month before Student’s REDACTED birthday and approximately three months after the CPSE had convened, the CSE convened to determine Student’s eligibility for services through the CSE and to develop an IESP for the 10-month 2022-2023 school year (Ex. D-1, 13; Ex. E-2). Parent and Public School Psychologist attended the meeting (Ex. 4-1; Tr. #2 50; Ex. D-13). The CSE relied upon a Social History Update, a Classroom Observation, and an OT Progress Report, and information supplied by Student’s teacher, SEIT provider and Parent (Ex. D; Ex. 2; Ex. 3).

Public School Psychologist observed that Student interacted appropriately with peers and was attentive to the teachers (Ex. 4-2; Tr. #2 27; Ex. D-1; Ex. 3). Student performed well academically, could focus, had good manners and performed tasks on their own (Ex. 4-2; Ex. D-1; Ex. 3). Student transitioned between activities and sat while a story was read (Ex. 4-2; Ex. D-1; Ex. 3-1). Student had difficulty finding the words to answer questions about the story, but was able to respond with prompts (Ex. 4-2; Tr. #2 27; Ex. D-1; Ex. 3-1-2). At the time, Student knew 20 out of 26 REDACTED letters, but did not know the English alphabet (Ex. 4-2; Tr. #2 28; Ex. D-2). Student knew colors and shapes and could sort items (Ex. 4-2; Tr. #2 28; Ex. D-2). Student could count to ten and amounts of items (Ex. 4-2; Tr. #2 28; Ex. D-2). Student’s fine motor skills were age-appropriate (Ex. D-5).

Student exhibited delayed reading readiness skills and trouble with the concept of rhyming, could not identify categories without prompts, and had difficulty sequencing (Ex. 4-2; Ex. D-2). Student did not understand order (i.e. first, second, third), following and completing patterns, and concepts such as inclusion/exclusion or “how many more?” (Ex. 4-2; Tr. #2 28; Ex. D-2). Overall, Student had difficulty applying what they knew (Ex. D-2; Tr. #2 28). Student’s SEIT provider helped with these tasks (Ex. D-2).

Additionally, Student exhibited “significant weaknesses” in expressive language skills, with even more pronounced weaknesses in receptive language skills. These delays manifested in many ways and affected Student’s “ability to speak at grade level” and make progress on par with peers (Ex. 4-2; Ex. D-2, 6). The CSE determined that Student demonstrated “moderate levels of performance and need[ed] to develop age appropriate skills” in the following areas: understanding basic pronouns, comprehending quantity, making inferences, being intelligibly understood by others, rhyming, answering questions as quickly as others, using a variety of vocabulary words, inflecting words and using grammatically correct sentences (Ex. 4-2; Ex. D-3).

Student exhibited other challenges, as well. For example, Student had difficulty with maintaining attention and concentration, including staying seated and focused (Ex. D-3, 4, 5, 6). Student “seem[ed] to think in an unorganized manner,” answered off topic, missed instructions causing mistakes, and gave incorrect answers because of lack of focus (Ex. D-4). Student exhibited poor body awareness in space, mouthed toys and touched objects and people, demonstrated difficulty working with messy objects, and required assistance with visual perceptual skills (Ex. D-5).

During the course of the year, Student demonstrated some progress in various areas. For example, Student could sit for longer periods of time during 1:1 therapy sessions, fell off the chair less frequently, fidgeted less and “demonstrate[d] an improved ability to maintained focus during a preferred activity even with distractions present” (Ex. D-5). The CSE determined that Student benefitted from prompts to follow along, having the teacher sit next to them, standing up and holding an item for the teacher, acting out parts of a story, reminders to use “whole body listening,” frequent teacher check-ins, as well as prompts and sentence starters (Ex. D-3, 4). Student would also benefit from reminders to focus and attend, non-verbal signals, timers to help with pacing, positive reinforcement, repetition and re-teaching as needed, checks for comprehension, and having Student repeat back to ensure understanding (Ex. D-4).

Parent’s concerns were documented in the Social History Update (Ex. 2), and Parent voiced their concerns and expectations throughout the meeting (Tr. #2 50; Ex. D-1, 4). For example, Parent stated that Student is “easily distracted,” “cannot recall information” learned in school or answer questions after reading a book (Tr. #2 28; Ex. D-1, 4; Ex. 2-1, 2, 3). Parent also acknowledged that Student could count from 1 to 12, knew some letters and knew colors, and may know shapes (Ex. 2-2; Tr. #2 59-60). Parent further acknowledged that Student interacts appropriately with peers (Ex. D-1; Ex. 2-3), and that Student made improvements in school, including in answering questions and improved speech (Ex. D-1; Ex. 2-1-2, 3). Among their expectations, Parent wanted Student to “sit straight and learn,” and to remember the information taught in school (Ex. D-1; Ex. 2-2, 3).

As a result, the CSE developed an IESP recommending SETSS to be provided in a group four periods per week; SLT to be provided in a group two times per week for 30 minutes; and OT to be provided individually one time per week for 30 minutes (Ex. D-10; Ex. E-2; Ex. A-2). The CSE also recommended various management needs, including: use of visuals, picture cards and manipulatives; prompts; assistance with word retrieval; and frequent teacher check-ins (Ex. D-6). The CSE created six goals for Student to address sensory processing, visual-motor, language and general educational skills (Ex. D-7-9). Services were to begin on July 1, 2022 (Ex. D-1).

The CSE’s recommendations resulted in a change from SEIT services to SETSS and a decrease by one session per week compared with the CPSE’s recommendations (compare Ex. B-1, 11 with Ex. D-10; Ex. E-2). The CSE’s recommendations also reflected a change in OT to only once per week, as an individual service, from the CPSE’s OT recommendation of two group sessions per week (compare Ex. B-1, 11 with Ex. D-10).

Public School Psychologist believes the discussion regarding the reduction in services was conducted in Parent’s presence (Tr. #2 38), but Parent does not believe such was explained to them (Tr. #2 51). At the meeting, though, Parent was provided an opportunity to voice their concerns (Tr. #2 50), and specifically told the CSE that Student needed the previously recommended services because Student was having a “very difficult time” (Tr. #2 51). Parent also informed the District that Student had a hard time recalling what happened in school each day (Tr. #2 57-58) and struggled in school (Tr. #2 52-53). At the conclusion of the meeting, Public School Psychologist did not believe Parent was dissatisfied with the recommendations (Tr. #2 31), and only later learned that Parent found the recommendations “not acceptable or suitable” (Tr. #2 38).

Events Since the Creation of the March 2022 IESP, Including the Provision of Services

On August 23, 2022, Parent, through Parent’s Attorney #1, sent the District a Ten Day Notice (“TDN”) (Ex. C; Ex. E-2).^[13] Pursuant to the TDN, Parent was “very concerned that the IEP Team removed the SEIT Program and replaced it with so few periods of SETSS” (Ex. C-2). Parent asserted that it appeared that the CSE “had already made up its mind before the meeting to remove the SEIT program which was serviced on a one to one basis” (Ex. C-2). Parent “rejecte[ed] the most recent reduced recommendations,” and concluded that they would place Student in Private School and seek reimbursement or direct funding for the “prior recommended services” (Ex. C-2). The District did not respond (Ex. E-2).

The District did not implement any services for Student, and Parent contacted Provider Agency (Ex. E-2). Provider Agency has been administering, and is able to continue providing, five hours of SETSS per week, SLT two times per week for 30 minutes and OT two times per week for 30 minutes to Student for the 2022-2023 school year (Ex. E-2, 3; Ex. F-2, 3; Ex. G-1; Tr. #2 71-72, 73, 74, 76-77). Student’s services are provided at Private School (Ex. F-3). Although services are “typically provided outside of the classroom,” (Ex. F-3; Tr. #2 70), half of each session for Student is being provided within the classroom and half outside of it (Tr. #2 70-71).

Student’s SETSS services are administered by Direct Provider (Ex. F-2; Tr. #2 73, 74). Director Provider is certified by NYS to teach students with disabilities from birth through Grade 2 and is trained to teach literacy and comprehension to school-aged students (Ex. F-2; Ex. I-1). Direct Provider received their certification on January 19, 2022 (Ex. I-1). Student’s SLT is provided by Speech-Language Pathologist (“SLP”) (Ex. F-2). SLP received their “Speech and Language Disabilities Initial Certificate” on September 2, 2022 (Ex. I-2). Student’s OT is provided by Occupational Therapist, who received their license in November 2018 (Ex. F-2; Ex I-3). In addition to providing 1:1 service for Student, Direct Provider, SLP and Occupational Therapist prepare for sessions, create goals, write progress reports and meet with teachers and parents (Ex. F-3). Goals were created based on Student’s IESP and reports from the prior year (Tr. #2 68-69).

Direct Provider provides redirection to Student to help with focus inside of the classroom and reinforces reading and math skills outside of the classroom or any other issue that might arise during class time (Tr. #2 73-74). Supervisor does not provide direct services to Student, but has observed Student in the classroom one or twice per week (Tr. #2 69). Student “struggles to keep up with the academics of the classroom,” reads at a slower pace than others, makes errors in reading, has difficulty focusing, and needs reinforcement and redirection (Tr. #2 69). Student also exhibits delays in numbers, counting and math skills (Tr. #2 69-70). Supervisor works with Direct Provider to “develop interventions and goals to address the child’s weaknesses and make an effort to increase their independence” (Ex. F-1; Tr. #2 68).

Student’s progress is measured through quarterly assessments, meetings between Provider and staff, direct observations and daily session notes (Ex. F-3). Student is making progress with these services (Ex. F-3; Ex. J-1, 4, 6; Tr. #2 74-75). Provider Agency believes Student requires the continuation of the services they have been providing, consisting of five periods of SETSS and two sessions per week each of SLT and OT (Ex. F-3). Supervisor believes that anything below five hours would cause Student to fall behind in school (Tr. #2 75).

Although Student was recommended to receive group SEIT services pursuant to the December 2021 IEP and group SETSS pursuant to the March 2022 IESP, Provider Agency is providing SETSS in a 1:1 format because Provider Agency does not offer group services (Tr. #2 93-94). According to Financial Officer, the DOE has a mechanism to bill in groups for SEIT and related services, but not for SETSS (Tr. #2 95-96).

Provider Agency charges $198 per hour for individual SEIT services/SETSS and $225 per hour for related services (Ex. G-1; Tr. #2 83).^[14] A portion of these rates funds: the direct rate for the provider; employee benefits; 1:1 supervision; educational resources and support; professional development; materials; employment taxes; administrative costs; and overhead costs (Ex. G-1; Tr. #2 83-84, 91). Direct providers earn varying amounts depending upon various factors (Tr. #2 84, 85-86, 90-91). Direct Supervisor earns $90 per hour (Tr. #2 90), but is only paid one hour for every five hours of service Director Provider administers (Tr. #2 90). The Agency also incurs financing interest from lines of credit it took out because the District has not paid money owed to Agency (Tr. #2 84). Financial Officer estimates that the District has not paid on the majority of cases this year, nor on about 50% for the prior year or cases from fiscal year 2020 (Tr. #3 84-85). Financial Officer estimates that the Agency is owed $45 million dollars just for pendency (Tr. #2 92).

On July 25, 2022, Parent signed a contract obligating Parent to seek direct payment from the DOE to Provider Agency for services rendered (Ex. E-3; Ex. H). The contract further provides that Parent “is fully and completely” responsible to pay for any hours of services not paid for by the DOE (Ex. E-2; Ex. H; Tr. #2 86, 88-89). The contract states that Provider Agency will administer “Intensive 1:1 Special Services” to Student, with the amount of services to be determined by “the therapist, [Provider Agency], and the parents of the child and approved by the Special Services program director” from September 1, 2022 through June 30, 2023 (Ex. H). The contract does not list any specific services to be provided to Student (Ex. H). Parent is being charged $195 per hour for all services (Ex. H; Tr. #86-88). Parent requires direct funding because it would be an “extreme financial hardship” for them to pay for the services, requiring them to seek “outside financial assistance” to pay for the services (Ex. E-2).

“MOTION TO DISMISS”

Raising of the June 1st Issue During their examination of Parent, District Representative #1 asked whether Parent had requested “equitable services prior to June 1st for the 2022-2023 school year” (Tr. #2 53-54). Parent’s Attorney #2 immediately objected on grounds of relevancy (Tr. #2 54). District Representative #1 argued that Parent was required to request equitable services prior to June 1st for the upcoming school year (Tr. #2 54). Parent’s Attorney #2 countered that such was a defense and that the District failed to raise it in response to the DPC (Tr. #2 54). I further noted that the District had waived their opening statement so that notice of their intention to explore this had not even been provided at the outset of the DPH (Tr. #2 54). I directed that if the District were to pursue this line of questioning, I would require briefing by the Parties (Tr. 54). District Representative #1 stated, “Yes, I’ll file a brief on the June 1st issue” (Tr. #2 55). Over Parent’s Counsel’s objection, I expressed my intention to allow “very limited” questions on the June 1st issue, to which District Representative #1 stated that the question they asked was the only question they intended to ask (Tr. #2 55). Upon my repeating of the question, Parent testified, “I really don’t. I do not know. I do not remember when we requested it” (Tr. #2 55-56). At the conclusion of Parent’s case, referring to the June 1st issue, I again stated, “[District Representative #1] if you will be proceeding in that manner I do want a written submission on it” (Tr. #2 96) and reiterated when discussing the parameters of the written closings, “I need . . . your position on the June 1 [issue], regardless, in writing (Tr. #2 97). Analysis- General Overview of The Statute New York State Education Law § 3602-c states, “[b]oards of education of all school districts of the state shall furnish services to student who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent or person in parental relation of any such student.” Regarding students with disabilities, barring certain exceptions, “such a request shall be filed with the trustees or board of education of the school district of location on or before the first of June preceding the school year for which the request is made . . .” N.Y. Educ. Law § 3602-c (2)(a) (emphasis supplied).

Analysis- The District’s Failure to Prove the Affirmative Defense of June 1st Notice At the outset, I find it questionable whether the District raised the June 1st issue with sufficient specificity to deem it a Motion to Dismiss. By failing to raise any claim regarding June 1st prior to the hearing, and by waiving their opening statement, District Representative #1 never informed Parent of their intention to assert this issue. District Representative #1 waited until the middle of cross-examination to ask Parent if they had requested the services prior to June 1st of the school year in question. Moreover, although I directed District Representative #1 to file a Closing Brief, specifically addressing their position on this issue, the District ignored that directive and simply filed a Closing Brief summarizing their position on the merits of the case.^[15] Nonetheless, given the import of the question asked and District Representative #1’s contention that Parent was required to request equitable services prior to June 1st for the upcoming school year, to the extent that the District’s position is couched as a Motion to Dismiss, I must address why I am denying their motion.

Although District Representative #1 asserted that Parent was required to request equitable services in advance of June 1, 2022, the representative failed to appreciate that they carried the burden to prove that Parent had not timely requested the services. I find the District failed to meet its burden to prove that Parent did not file a request for services prior to June 1, 2022. The DOE’s argument raises an affirmative defense, as it contains new facts to be established (elements of notice and of a date certain) that would have the intended effect of denying the Parent’s claims. See, e.g., Carter v. Eighth Ward Bank, 33 Misc. 128 (Sup. Ct. N.Y. Cty 1900) (“an affirmative defense can . . . consist only of new matters constituting a defence [sic], i.e., new matter which, assuming the complaint to be true, constitutes a defence [sic] to it”). Further, 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. 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).

I find that despite the fact that Parent filed this matter on September 8, 2022, that IHO #1 was appointed on October 19, 2022, and that I was appointed on March 6, 2023, District Representative #1 never raised this issue with either IHO. More than that, as already noted, at the DPH conducted on March 30, 2023, District Representative #1 waived their opportunity to present an opening statement. The representative waited until cross-examination to raise this, thereby depriving Parent of any notice of their intent to seek dismissal of this matter. I also find that it is undisputed that on August 23, 2022, Parent sent the District a TDN explaining, inter alia, their concerns with the IESP that had been drafted and that they would implement the services and seek direct funding or reimbursement (Ex. C-2; E-2). The District failed to respond (Ex. E-2), including to inform Parent that Student was not entitled to receive services because they had not been requested in a timely manner. Regardless, by the time District Representative #1 raised this issue, they already had proffered exhibits and presented a witness. None of their exhibits or testimony demonstrated whether Parent provided notice in advance of June 1, 2022, whether a search was made of such notice, or even how June 1st notices are received from parents. By failing to do so, the District failed to prove the affirmative defense that Parent did not provide June 1st notice. Therefore, I reject the District’s argument for this reason alone. ^[16]

Additional Analysis- Exception to the June 1st Statutory Provision- The Statutes Although I am denying the District’s motion on that basis, I find the District’s narrow interpretation is not entirely supported by the law and that the idea of potentially denying Student all special education and related services pursuant to N.Y.S. Educ. Law § 3602-c for the entirety of the 2022-2023 school year runs counter to the spirit of the IDEA and New York’s statutes and regulations related to the provision of special education and related services, particularly in light of equitable considerations. Accordingly, even if the District had properly asserted and proved the affirmative defense, I would still find, as a matter of law, that the June 1st requirement did not pertain to the Student under the circumstances of this case.

Educ. Law § 3602-c(2) provides, inter alia:

a. 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 or person in parental relation of any such student. Such a request for career education or services to gifted students shall be filed with the board of education of the school district in which the parent or person in parental relation of the student resides on or before the first day of June preceding the school year for which the request is made. In the case of education for students with disabilities, such a request shall be filed with the trustees or board of education of the school district of location on or before the first of June preceding the school year for which the request is made . . . provided that where a student is first identified as a student with a disability after the first day of June preceding the school year for which the request is made . . . and prior to the first day of April of such current school year, such request shall be submitted within thirty days after such student is first identified. For students first identified after March first of the current school year, any such request for education for students with disabilities in the current school year that is submitted on or after April first of such current school year, shall be deemed a timely request for such services in the following school year.

b. (1) For the purpose of obtaining education for students with disabilities, as defined in paragraph d of subdivision one of this section, such request shall be reviewed by the committee on special education of the school district of location, which shall develop an individualized education service program for the student based on the student's individual needs in the same manner and with the same contents as an individualized education program. The committee on special education shall assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.

Review of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter.

(Emphasis added.)

As the statute states, the June 1st notice applies to all students, specifying and separating requests for gifted students, career education, and students with disabilities.^[17] Notably, only with respect to students with disabilities – education and services must be administered on an “equitable basis” – meaning fairly – but also “as compared to” students with disabilities in public schools, and other NPS students,^[18] within the same district. This clearly signals a level of parity between services rendered to dual enrollment NPS students and services for public school students with disabilities, who must receive a FAPE under the IDEA.

The District’s argument necessarily relies upon two assumptions. First, that providing notice is an annual obligation and second, that failing to provide a written notice by the June 1st preceding the school year at issue precludes any recovery. I am cognizant of the fact that a “plain reading” of the statute suggests that June 1st notice is an absolute, unambiguous obligation, which is consistent with the doctrine that legal text must be given effect, to the extent possible, as it was written by the Legislature.^[19] However, nothing in § 3602-c(2) explicitly states that the request must be made every preceding June 1st. There is also nothing in the law that explicitly describes a complete bar to any services as the only consequence for failing to provide the notice.

Regardless of which reading is applied, the June 1st clause should not be applied without weighing its relationship to the “equitable basis, as compared to” clause, because provisions within the same statute that pertain to the same subject matter are to be read in conjunction with each other. Here, the “services” that parents must request by June 1st are the very same special education and services that are to be administered “on an equitable basis” when “compared to” students with disabilities in public schools. Application of the June 1st requirement should thus reflect a consideration of its effect on the obligation to ensure that NPS students with disabilities receive services “on an equitable basis” to their public school counterparts.

The District’s narrow interpretation of the June 1st notice and the complete deprivation of special education services that ensue from such a narrow interpretation also fails to ensure that NPS students with disabilities receive services on an equitable basis as compared to their public school counterparts because public school students with disabilities are not subject to such harsh outcomes. The IDEA’s primary notice provision for parents is the filing of a TDN, and the law expressly allows for discretionary reduction or denial of payment when that requirement is violated,^[20] not the automatic and complete bar to any recovery, resulting from the Department’s reading of the June 1st provision. This exposes an obvious tension between the two clauses: if NPS students with disabilities are to receive services comparably to FAPE-eligible students in public schools, then separating out NPS students whose parents did not file a June 1st notice means that those students would no longer receive services on an “equitable basis” with public school students. Nothing in the law mandates that only some NPS students receive services on an equitable basis, and nothing suggests that students with disabilities must be split into two populations – those who notify by June 1st and those who do not – with the result that students who clearly require services are rejected from any recovery simply because a writing was not submitted. This would be especially egregious when, as discussed more fully below, the district is already aware of those students and their needs.

“[W]hen . . . statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used.” People v. Jones, 26 NY3d 730, 733 (2016). Where, however, “an ambiguity exists in a statute, it becomes th[e interpreter]'s duty to construe the statute, as best [one] can, to effectuate the Legislature's intent.” Jericho Water Dist. v. One Call Users Council Inc., 37 A.D.3d 136, 140 (2d Dept. 2006) citing McKinney’s Cons Laws of NY, Book 1, Statutes § 92(a); and Matter of Tompkins County Support Collection Unit v. Chamberlin, 99 N.Y.2d 328, 335 (2003). Adjudicators construing the meaning of legislation are “governed by the principle that we must interpret a statute so as to avoid an unreasonable or absurd application of the law” Matter of NY State Assn. of Criminal Defense Lawyers v. Kaye, 96 NY2d 512, 519 (2002) citing People v. Garson, 6 N.Y.3d 604, 614 (2006) (internal citation and quotation marks omitted), and we must “avoid ascribing a meaning to [a] term that is inconsistent with the statute’s underlying purpose[.]” Jericho Water Dist. v. One Call Users Council Inc., 37 A.D.3d at 142 citing McKinney’s Cons Laws of NY, Book 1, Statutes §§ 96 and 143; and Matter of Tompkins County Support Collection Unit v. Chamberlin, 99 N.Y.2d at 335.

In this circumstance, the plain reading of the statute leads to absurd results, thereby necessitating an analysis of the purpose of each of the two statutory clauses. Education Law § 3602-c was originally enacted in 1963, with no amendment regarding students with disabilities until 2005, in response to amendment of the IDEA itself, thereby ensuring that “the state and its local educational agencies will comply with the IDEA.” N.Y. Legislative Service, 2005 N.Y.S.N. 8936, Ch. 352, §§ 1 and 22. The Governor’s memorandum approving the bill acknowledges that the then-new law was “designed to assure access for all high school students in this State to . . . educational programs for students with disabilities[,]” noting that “[m]any public school districts have long been able to offer a variety of . . . special education programs” while “[n]on-public schools, with smaller enrollments and more limited facilities and fiscal resources, have generally been unable to provide such specialized offerings[.]” Governor’s Mem. of Approval, 974 McKinney’s Session Laws of NY, at 2102; 1974 NY Legis. Ann., at 109 (quoted in Bd. of Educ. v. Wieder, 72 N.Y.2d 174 [1988]). The “bill [thus] enable[d] non-public school students to join with our public school students in sharing the benefits from such public programs.” Id.

Subsection 2 of § 3602-c and the two clauses at issue have remained intact since 2005, and despite being labelled “temporary,” the section has been extended eight times. N.Y. Legislative Service, 2021 N.Y.A.B. 7120, Ch. 253, § 1. The broader purpose of § 3602-c, which itself furthers the goals of the IDEA, is reflected in the first part of subsection (2): “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 or person in parental relation of any such student.” Id. (emphasis added).^[21] These “services” include “education for students with disabilities,” id., the definition of which incorporates Educ. Law § 4401, see id. at § 3602-c(1)(d), which itself defines a student with a disability as “a person under the age of twenty-one who is entitled to attend public schools . . . and who, because of mental, physical or emotional reasons can only receive appropriate education opportunities from a program of special education.” Educ. Law § 4401(1); see also 8 NYCRR § 200.1(zz). Any interpretation of § 3602-c therefore must reflect the recognition that students with disabilities must receive “a program of special education” in order for their education to be “appropriate.”

The text of § 3602-c also expressly references the IDEA in two places, the first being the proportionate share of IDEA Part B funds expended with respect to NPS students, see Educ. Law § 3602-c(2-a) and (10), and the second being invocation of New York’s IDEA hearing procedures found at § 4404. See Educ. Law § 3602-c(2)(b)(1). The breadth of the definitions, the connections to the IDEA and its purposes, and the phrase “equitable basis” utilized with respect to services, are all factors supporting an understanding that the Legislature envisioned a more generous application of § 3602-c(2), at least on par with services that must be provided to public school students receiving a FAPE under the IDEA, who face no June 1st constraint.

Additional Analysis- Exception to the June 1st Statutory Provision- Other Documents Viewing the “equitable basis” clause through a wider lens does not mean that the June 1st provision has no scope. Indeed, “[i]n the construction of statutes, each word or phrase in the enactment must be given its appropriate meaning.” See Colon v. Martin, 170 A.D.3d 1109, 1111 (2d Dept. 2019) (citing McKinney’s Cons. Laws of NY, Book 1, Statutes § 301).

The requirement that parents of NPS students provide notice serves at least two important purposes: avoiding unfair surprise and resulting prejudice to the District, and ensuring that the District has sufficient information to calculate the expenditure of funds for the following school year. A reconciliation with the “equitable basis” clause must consider these factors.

The degree to which the Department may claim prejudice or surprise has been addressed in at least two documents published by the DOE. When § 3602-c was amended in 2005, the DOE published a guidance memorandum describing its intended application of the law. See Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c (Memorandum from James P. DeLorenzo to education stakeholders and Attachment 1, September 2007).^[22] The memorandum recognized that “Section 3602-c . . . was amended to comply with section 612(a)(10) of IDEA . . . to require the public school district where the nonpublic school is located to provide students with disabilities enrolled in nonpublic elementary and secondary schools by their parents with special education services.”

Id. at pp. 1-2 (emphasis removed). Among the school district’s obligations listed in the memorandum are that the school district of location: must consult with nonpublic school representatives regarding special education and related services throughout the school year to ensure that parentally placed nonpublic school students identified through the child find process can meaningfully participate in the special education and related services; must meet their child find obligations; and must conduct a reevaluation at least once every three years of each eligible parentally placed nonpublic school student with a disability. Id. at Attachment 1, pp. 1-3. Additionally, “[t]he CSE of the district of location must develop an IESP for students with disabilities who are NYS residents and who are enrolled by their parents in nonpublic elementary and secondary schools . . . The IESP must be reviewed . . . not less than annually.” Id. at Attachment 1, p. 4 (emphasis added).

Given the level of required contact and the substance of that contact between the school district and the NPS and the parents or guardians of students with disabilities, it is difficult to imagine how the District would be prejudiced by not being notified by June 1st of each year, especially by the parent of a student who has received services previously. In particular, the District retains child find, evaluation, and annual IESP review obligations for each NPS student. If the Department fails to meet these obligations, they should not be rewarded by claiming lack of notice for students whom it should have had awareness. ^[23] The second DOE document is the Standard Operating Procedures Manual (“SOPM”). Per the SOPM, “[t]he CSE is to send a Request for Special Education Services form to parents of students with IESPs by April 1 every year.” See New York City Department of Education Special Education Standard Operating Procedures Manual.^[24] The SOPM continues, “[p]arents of students with IESPs must request special education services for the upcoming school year in writing to the CSE by June 1, and may do so by signing and returning the Request for Special Education Services form.” Id. I do not find that the SOPM supersedes the statute at issue. However, the District itself has publicly suggested a procedure by which they will ensure that parents know about the deadline and will provide a streamlined method for parents to request the services.^[25] Interestingly, the District did not address this in any manner nor provide proof that it had supplied the notice they said they would provide. Regardless, I do find that the District’s actions in putting this information into the SOPM supports that the law was not intended to deny services to students of parents or guardians who had no knowledge of the June 1st provision.

Additional Analysis- Exception to the June 1st Statutory Provision- Court of Appeals Finally, the New York State Court of Appeals has weighed in on the scope of the word “shall” as used in § 3602-c. In Bd. of Educ. v. Wieder, 72 N.Y.2d 174 (1988), the Court considered another provision within the same law, § 3602-c(9), which states public school and shall not be provided such services separately from pupils regularly attending the public schools.

Id. at 184.

The school district in the case argued that (c)(9) “must be read literally as the exclusive vehicle for providing special services to” NPS students with disabilities, and that such services could be provided “only in regular public school classes and programs, and not elsewhere.” Id. at 184. The Court disagreed, finding that “this is not a statute that can be read without consideration of its history and context” as well as without a comparison to other laws. Id. 183-184. The Court then held that the “section does not mandate that a board can provide special services to private school [disabled] children only in regular classes and programs of the public schools, and not elsewhere.”

Id. at 183.

In reviewing the State’s statutory and regulatory approach to equitable special education and services, the Court offered three observations. “First, the paramount principle . . . is concern for a [disabled] child’s educational needs, whether in public or private school . . . in a manner that enables them to participate in regular education services when appropriate.” Id. at 186 citing Educ. Law §§ 4401-a and 4402(2)(a), and 8 NYCRR §§ 200.01 and 200.6. “Second, the statutes and regulations vest in State educational authorities broad responsibility for tailoring programs to a child’s individual needs in the least restrictive environment, considering the appropriateness of the resources of the regular education program.” Id. at 186 citing Educ. Law §§ 4401-a, 4402 and

4403. “Third, to this end, the authorities have a wide choice of programs and services, including home instruction, itinerant teachers, and counseling and psychological services.” Id. at 186 citing Educ. Law §§ 4401(2)(a) and 4401 (2)(k).

Relying upon these factors, the Court endorsed a most generous reading of the entirety of § 3602c, not just the subsection at issue: “Education Law § 3602-c . . . as part of the Education Law article pertaining to apportionment of moneys . . . was plainly designed to increase benefits afforded to [disabled] children in public schools – not to limit them – by offering these students access to all of the special programs provided for public school students and by integrating them generally with public school students.” Id. at 184-185. On this finding, the Court rejected the narrow interpretation of the procedural rule proffered by the district, holding instead that § 3602-c should be applied so as to ensure students receive services more broadly (e.g., allowing services at locations other than at public schools) notwithstanding a limiting use of the word “shall” (in “shall receive such services in . . . the public school”).

Using the Court of Appeal’s analysis in Wieder, any interpretation of § 3602-c(2) must be resolved in favor of “increasing benefits afforded to [NPS] children . . . not to limit them – by offering these students access to all of the special programs provided for public school students[.]” Id. The effect of the June 1st clause therefore must give way, but only to the extent necessary to ensure that NPS students the district has reason to know of (and especially those for whom the district had made recommendations) will receive those services similarly to public school students who are entitled to a FAPE.^[26] This interpretation is also consistent with the definition of “children with disabilities” in the Education Law, i.e., those “who, because of mental, physical or emotional reasons can only receive appropriate education opportunities from a program of special education[,]” Educ. Law § 4401(1) (as incorporated into § 3602-c[1][d]) (emphasis added) as well as with the DOE’s own guidance memorandum, which states that “parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program.” See Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602c, supra, at Attachment 1, p. 11 (emphasis added).

Adopting the District’s narrow reading of just one clause of the statute ignores the interrelationship between the two clauses, and frustrates the Legislature’s intent to secure services for disabled NPS students by imposing a hurdle on their parents and guardians that carries the potentially dire consequence of denying services to children who, according to the Legislature, can “only receive appropriate education opportunities from a program of special education.” Educ. Law § 4401(1) (as incorporated into § 3602-c[1][d]) (emphasis added). I find that the June 1st notice requirement does not apply to students the District already had learned about and/or agreed to provide services for previously, or where the parents or guardians requested services in a previous year and the Department was under a continuing obligation to review the student and their IESP annually, or at the very least, for students where the District recommended services that it thereafter did not implement. This interpretation both resolves the ambiguity inherent between the notice clause and the equitable basis clause, and comports with the 2004 IDEA amendments that required public school districts to “provide students with disabilities enrolled in nonpublic elementary and secondary schools by their parents with special education services.” See Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c, supra, at Attachment 1, pp. 1-2.

Applying the above to the case before me, I find that Parent’s claim should not be denied. Even if the District had proven that Parent failed to submit a written request for services by the June 1st preceding the school year in question, as described in further detail below, there is no dispute that the District failed to implement the services it recommended in the IESP, either directly by the District or through a contract the District entered into with a provider.

Waiver The third reason the Department’s notice argument must fail is because the IESP it developed, per its obligations, had the effect of implicitly waiving any notification by June 1, 2022 in this case. The SRO has considered the effect of the doctrine of implied waiver on the June 1 requirement in § 3602-c(2), as that doctrine was relied upon in the Second Circuit decision of N.L.R.B. v. New York Tele. Co., 930 F.2d 1009 (2d Cir. 1991), which “held that a waiver will not be implied unless ‘it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them.’” Application of the Board of the Lewiston-Porter Centr. Sch. Dist., Appeal No. 18-088 (August 31, 2018), at pg. 8. The SRO found that, even when the parties “do not dispute that the parents failed to request special education services by June 1[,]” it was still the case that “the district prepared an IESP for the student and began providing [the] services . . . to the student at the nonpublic school. Thus, by making the conscious choice to proceed after the June 1 deadline by providing services . . . ‘for whatever reason,’ the district’s actions constituted an implied waiver.” Id.

The above describes two scenarios where waiver is implied; first, in preparing an IESP after June 1st, and second, in implementing services described in the IESP after June 1st. I read this to mean that the implied waiver includes the entirety of the period for which those services are to be provided. Thus, if an IESP is developed less than one year before the June 1st in question, and those services are to be implemented, for one year, the DOE has made “the conscious choice to proceed after the June 1st deadline . . . ‘for whatever reason’” and the notice requirement has been waived. Id.

Here, the CSPE convened on December 29, 2021, to determine Student’s eligibility for services through the CPSE and to develop an IEP for the remainder of the 10-month 2021-2022 school year (Ex. B-1, 2, 3). The IEP indicates that the “Projected Date IEP Is to Be Implemented” was “January 3, 2022” and the “Projected Date of Annual Review” was “T5” (Ex. B-3), referring to the time at which the “Turning 5” IESP was to be implemented. Thereafter, on March 28, 2022, the CSE convened to determine Student’s eligibility for services through the CSE and to develop an IESP for the 10-month 2022-2023 school year (Ex. D-1, 13; Ex. E-2). That IESP includes that the “Projected Date IESP Is to Be Implemented” was “July 1, 2022” and the “Projected Date of Annual Review” was “March 28, 2023” (Ex. D-1). Given that the DPC requests services for the 2022-2023 school year, I find that the IEP and IESP demonstrated the Department’s obligation and intention to implement services beyond June 1, 2022. In doing so, the Department waived any right to notice on or before June 1, 2022. Therefore, even if the Department had proven that there was no parental notice by June 1, 2022, and even if the June 1st provision in § 3602-c was applicable to the circumstances of this case, I would still deny the Department’s defense because of its implied waiver. I now turn to the merits of this matter.

LEGAL STANDARDS AND FRAMEWORK

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 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).^[27] 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).

Burden of Proof

Under the IDEA and the NYS 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. 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). As explained more fully below, SETSS cases have been treated as a hybrid between unilateral placement theory cases, see e.g., Application of a Student with a Disability, Appeal No. 21-101, 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-of-pocket educational expenses). Accordingly, I first must 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.

The CSE’s Recommendation of SETSS Instead of SEIT Services Is Appropriate

In their DPC, Parent’s Attorney #1 asserts that “[Student] has been making progress utilizing the SEIT program and requires either a continuation of the broader SEIT program or an appropriate placement in a hybrid special education/general education program” and that “SETSS is a more limited service that does not address the broader organizational, executive functioning, social skills” that Student requires to meet their goals (Ex. A-3). I find Parent’s Attorneys’ arguments regarding SEIT services versus SETSS unavailing in this matter, and further find that SETSS is appropriate.

First, SEIT services are generally reserved for preschool students with disabilities. See Educ. Law § 4410(1)(k); 8 NYCRR 200.16(i)(3)(ii). Second, according to two witnesses who testified, including one of Parent’s witnesses, the difference between SEIT services and SETSS are negligible and the provision of one instead of the other would not necessarily impact Student. Public School Psychologist testified that SEIT services are an academic service provided to pre-K students (Tr. #2 37-38, 40) and that SETSS is an academic service provided to students in kindergarten and beyond (Tr. #2 37-28, 40). Per Public School Psychologist, “there is not much of a difference between the two, but they are both academic positions and SEIT services are not to be used to address behavioral issues” (Tr. #2 40-41). Supervisor’s understanding is that SETSS is “more academic, and when it’s SEIT, it’s we [sic] kind of look at everything, but that doesn’t always play out that way in, in, in [sic] practical terms” (Tr. #2 71, 77). Further, Supervisor admitted that although SETSS “is academic,” Provider Agency is “using the time to work on behavioral skills” (Tr. #2 77), explaining that “they sometimes overlap because it is hard for Student to focus in the classroom” (Tr. #2 77-78). Third, despite counsel’s assertion that Student “has been making progress utilizing the SEIT program,” and despite that Parent and Financial Officer referred to the services generally as “Special Education services” (Ex. E-2, 3; Ex. G-1), Supervisor unequivocally testified that Provider Agency is administering SETSS to Student (Ex. F-2, 3; Tr. #2 73, 74), even making the correction when inadvertently referring to SEIT services (Tr. #2 71-72, 76-77). Additionally, as explained in detail below, Student is making progress with the SETSS services.

Accordingly, I find that the District appropriately recommended SETSS for Student and not SEIT services.

The CSE’s Recommendation of Four Hours of SETSS is Inappropriate

Regarding the number of hours Student is to receive, I am unpersuaded by Public School Psychologist’s reasoning to support its SETSS recommendation. As explained below, the District did not prove why, specifically, four hours of SETSS was reasonably calculated to enable Student to receive educational benefit.

As part of the December 2021 IEP recommendations, the CPSE recommended five hours of SEIT services to be provided in a group of two (Ex. B-11). Thereafter, the CSE determined that Student would be able to access the REDACTED curriculum with four sessions of SETSS per week (Ex. 4-2; Ex. D-3, 6, 10; Tr. #2 30, 31-33).

I find that the CSE relied upon sufficient evaluative data to draft the IESP and to make its determinations. The CSE relied upon a February 2022 Social History Update, a March 2022 Classroom Observation and a March 2022 OT Progress Report, in addition to information supplied by Student’s teacher, SEIT provider and Parent (Ex. D; Ex. 2; Ex. 3). The March 2022 IESP contains very detailed information about Student’s then-present levels of academic achievement and functional performance including Student’s areas of strength and weakness and from what supports and tools Student derives benefit. (Ex. D-1-6).

I further find that Public School Psychologist testified credibly that in REDACTED, a student needs to know that letters and numbers exist and that there is a difference between the two (Tr. #2 33). The student also needs to be able to recognize some letters and numbers, letters in their names, some colors and some shapes, that books exist and that people read from left to right (Tr. #2 33). Here, Student “demonstrated all of [their] REDACTED readiness skills,” including identifying 20 out of 26 REDACTED letters, counting to ten, recognizing their written name, responding correctly to questions, demonstrating “very good” social-emotional skills, relating well to peers, performing tasks on their own, and recognizing shapes and colors (Ex. 4-2; Ex. D-3, 6; Tr. #2 30, 31-33). Public School Psychologist further explained that although the service providers discussed Student’s issues with recall and the ability to express themselves, those issues would be addressed with SLT (Ex. D-6; Tr. #2 33). Finally, although Public School Psychologist could not answer questions posed by Parent’s Attorney #2 about Student’s fluid reasoning skills (Tr. #2 39), Public School Psychologist explained that they did not believe SETSS was necessary to address working memory as Student demonstrated adequate recall (Tr. #2 39).

However, Public School Psychologist further testified that based upon all of the information before them and on Student’s academic performance in class, Student “didn’t seem to require five sessions of [ ] SETSS.” (Tr. #2 30). Public School Psychologist continued, “I wasn’t even sure [Student] required four sessions of SETSS, but . . . IEP meetings get a little contentious at times, and there’s pushback . . . [and] so . . . the recommendation was for four periods of SETSS” (Tr. #2 30-31). Public School Psychologist additionally testified that they (referring to themself) were “probably thinking that [Student] did not need SETSS at all, based on [their] academic performance in class” (Tr. #2 38). They continued, “[a]nd, so, I didn’t think [Student] needed SETSS at all” (Tr. #2 38). Public School Psychologist explained that they did “listen to all stakeholders and take into account Parent concerns and the concerns of the, the teachers that know the child best” in order to “come to an agreement for four periods” of SETSS (Tr. #2 38). Public School Psychologist only later learned that the recommendation was “not acceptable or suitable” to Parent (Tr. #2 38).

Ultimately, I find that Public School Psychologist’s testimony supports the argument of Parent’s Attorney #2 that the reduction from five hours of special education services to four hours was “done arbitrarily and capriciously, without regard to the child’s needs” (Tr. #3 22). Public School Psychologist’s recommendation, which at first appeared to be based upon Public School Psychologist’s determination that Student met their REDACTED readiness skills, was later revealed to be merely a negotiating tactic to avoid a potentially contentious IEP meeting, divorced from any professional consideration of the Student’s needs. Public School Psychologist also failed to demonstrate, if Student did not require SETSS, how Student would have achieved the necessary milestones without the special education support Student received during the course of the year. Indeed, Public School Psychologist even recognized the relevance of these services when recounting the progress made as relayed by Student’s SEIT provider (Ex. 4-2).

Simply put, on this record, I cannot find that the recommendation of four hours of SETSS was reasonably calculated to enable Student to receive educational benefit.

Finally, to the extent that Parent’s Attorney #1 has argued that the District improperly recommended SETSS as a group service despite the fact that Student has been receiving SEIT services on an individual basis (Ex. A-2), I find that argument unavailing. The CPSE and the CSE each recommended group special education services (Ex. B-11; Ex. D-10). It was Provider Agency that administered the SEIT services individually. ^[28]

The District’s Recommendation of One Session of OT

The District argues that Parent’s claims regarding OT services should not be considered because the only issue raised in their DPC pertains to the reduction in SETSS (IHO Ex. IV-3). I find that Parent had not properly raised any complaint about the change in OT services in their DPC. I further find that even if the issue had been raised properly, the CSE’s recommendation is appropriate.

Pursuant to 8 NYCRR § 200.5(j)(1)(ii), “[t]he party requesting the impartial due process hearing shall not be allowed to raise issues at the impartial due process hearing that were not raised in the notice filed under subdivision (i) of this section, unless the other party agrees otherwise.” See also Polanco v. Porter, 2023 U.S. Dist. LEXIS 32444 (S.D.N.Y. February 23, 2023) (finding claim waived because “[t]he scope of the inquiry of the IHO . . . is limited to matters either raised in the [p]laintiff’s impartial hearing request or agreed to by [the] [d]efendant”) quoting B.P. v. N.Y. City Dep’t of Educ., 841 F.Supp.2d 605, 611 (E.D.N.Y. 2012). Here, in their DPC, Parent’s Attorney #1 specifically alleges that the CSE “failed to recommend an appropriate placement for [Student]” because of the SETSS recommendation (Ex. A-2), and discusses the difference between SEIT services and SETSS (Ex. A-3). The DPC also explains that Parent would need to “implement the SEIT program independently and seek reimbursement from the DOE” (Ex. A-3). Regarding compensatory services, Parent’s Attorney #1 addresses the right to seek compensatory SETSS and related services, but does not raise any issues with the related services other than implementation (Ex. A-3). Moreover, although Parent’s Attorney #1 listed the recommended services contained in the December 2021 IEP in the “Pendency Request” section of the DPC and the recommended services contained in the March 2022 IESP in the “3/28/2022 IEP Meeting” section of the DPC (Ex. A-2), I find that the mere listing of recommendations did not put the District on notice that Parent was specifically challenging the OT recommendation. Finally, in their request for relief, Parent’s Attorney #1 seeks a finding that the March 2022 IESP constitutes a denial of a FAPE and generally asks that “absent an up-to-date program,” the recommendations made pursuant to the December 2021 IEP continue for the 2022-2023 school year (Ex. A-3-4). Accordingly, I find that Parent did not properly raise the reduction of OT services and that the District was not “on notice” that Parent was challenging the OT recommendation specifically. Regardless, had I found the issue properly raised, I would have found the CSE’s recommendation that Student receive one 30-minute session of individual OT services to be proper. As Public School Psychologist testified, the CSE determined that Student could benefit from one session of OT per week instead of two because “in order for a student to require a related service, it, it has to impact their ability to learn in the classroom” (Tr. #2 34). Here, Student’s teacher reported that Student demonstrated age-appropriate fine motor skills, including holding a pencil properly, copying simple shapes, feeding themselves and taking off outer garments independently (Ex. D-5; Tr. #2 35). Further, although OT would help with sensory integration and increased attention span (Ex. D-6), the CSE accounted for this in their recommendation, determining that Student’s sensory processing issues could be addressed through the one session of OT and Student’s other needs could be addressed by the classroom teacher (Tr. #2 35). I also find that Student’s needs in this area could be addressed through recommended management needs, such as prompts and frequent teacher check ins (Ex. D-6), and goals which included a sensory processing goal to inhibit mouthing of objects and reducing unnecessary touching of people and objects (Ex. D-7).

I further find that whereas the CPSE had recommended OT in a group of two (Ex. B-11), the CSE recommended OT as an individual service (Ex. D-10), thereby providing more individualized attention to Student. Parent’s Attorneys have not challenged that change.

In addition, I find that the CSE properly considered the progress Student has made with their OT sessions, while recognizing that Student still requires OT. Per the OT Progress Report, which was relied upon by the CSE, Student demonstrated progress by sitting for longer periods of time during 1:1 therapy sessions (Ex. D-5), falling off their chair less frequently (Ex. D-5), “maintain[ing] [better] focus during a preferred activity even with distractions present” (Ex. D-5), and fidgeting less (Ex. D-5). Nonetheless, the CSE recognized that Student still demonstrates various behaviors requiring intervention such as limited progress remaining seated and focused, exhibiting poor body awareness in space, continuing to mouth toys and touch objects and people, and deficits in visual perceptual skills (Ex. D-5). I find that the OT recommendation is sufficiently “likely to produce progress, not regression.” See Cerra v. Pawling Cent. Sch. Dist, 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998) (quotations omitted), and affords Student an "appropriate" education. See Walczak, 142 F.3d 119 at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989).

Finally, although the burden to prove that the services were appropriate is squarely on the District, and I have found that they met that burden, I also find that much of the District’s evidence and testimony regarding OT services was uncontroverted. With OT assistance, Student has demonstrated decreased mouthing of objects, reduced excessive fidgeting and is restraining the need to touch objects and people (Ex. J-6). I give little weight to Supervisor’s testimony regarding OT services inasmuch as Supervisor has not observed Student’s OT sessions (Tr. #2 76) and believes Occupational Therapist is working with Student on “fine motor skills,” and doing things on their own such as “getting [their] coat zippering, stuff like that” (Tr. #2 76). The evidence in the record, including from Student’s teacher, demonstrates that Student possesses age appropriate fine motor skills (Ex. D-5) and can do many things on their own, including taking off outer garments independently (Tr. #2 35). Therefore, I find that although the issue regarding OT services was not properly raised, I would have found the CSE’s recommendation proper.

The District’s Failure to Implement Services Constitutes a Denial of a FAPE on an Equitable

Basis

The District’s failure to implement any services it recommended deprived Student of a FAPE on

an equitable basis for the 2022-2023 school year. It is undisputed that the DOE failed to implement the four hours of SETSS per week for Student or the recommended OT or SLT. The District, which bears the burden of proof, failed to put forth any evidence or witnesses regarding implementation, and failed to address this issue in their Closing Brief (IHO Ex. IV). Accordingly, although the District did not concede that it failed to provide Student a FAPE for the 2022-2023 school year, I find that the District failed to meet its burden.

As the District provided no special education or related services at any time after the March 2022 IESP was drafted, Parent sought the services recommended in that IESP. Parent explained that Student struggles in many academic and social emotional areas, requires a lot of extra assistance, and without that extra assistance, Student would be unable to remain in a “mainstream placement” (Ex. E-1). Student is making progress with SETSS, OT and SLT, and requires those supports to continue making progress (Ex. F-3; Tr. 23, 25-26).

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 DOE had the obligation to provide services to Student in conformity with the IESP. See Educ. Law§ 3602-c(2)(a), (b)(l). By not doing so, the DOE failed to provide Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district. More than that, it has been held that the Department may not effectively compel a parent to resort to self-help in obtaining a SETSS provider. See e.g., Application of a Student with a Disability, Appeal No. 21-101. Such a “de facto delegation from the district to the parent of the obligation to find a SETSS provider . . . at an acceptable rate is manifestly unreasonable” (id.,) and a violation of State law. 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”) (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.

Appropriateness of Parentally Selected Related Services

Before proceeding to the remedies, I must address the District’s claims that Parent failed to prove that the related services selected were appropriate (IHO Ex. IV-10-12).^[29] Specifically, the District asserts that Parent failed to present testimony from a witness that “actually worked with the Student” to discuss what those providers worked on with Student, the methodologies used or “how the Student may have benefitted from the services” (IHO Ex, IV-11-12).

Initially, as I have determined that the District failed to implement the services it recommended in the March 2022 IESP, I find that Parent was left with no option but to secure all services for Student. I further find that the related services Parent selected are appropriate. Among the considerations in determining whether a private placement selected by a parent is appropriate are whether the placement is likely to produce progress, not regression. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir 2017), quoting Walczak, 142 F.3d at 130. Moreover, No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specifically designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364-365 (2d. Cir 2006). A similar analysis is beneficial in a case like this, where a parent selects services for their child after the District fails to implement the current IESP.

I find that Parent proved the appropriateness of the SLT and OT services Provider Agency is administering to Student. Although SLP did not testify, Parent submitted a S/L Report dated January 2, 2023 which documents Student’s then-present level of functioning and delineates Student’s relative strengths and weaknesses (Ex. J-4-5). I find that the detailed report demonstrates that SLP has identified Student’s specific needs and that SLP intends to use various modes of intervention to help Student, including use of picture cards, books, worksheets, therapist-made materials, verbal cue prompts and articulation drills (Ex. J-5). I also find that Student made progress with SLT, such as gaining an increased understanding of simple “what” and “where” questions, improvement in labeling items, and increases in certain articulation skills (Ex. J-4).

Parent also submitted an OT Report dated December 22, 2022 which documents Student’s thenpresent level of functioning and delineates Student’s relative strengths and weaknesses (Ex. J-6-7). I find that the detailed report demonstrates that Occupational Therapist has identified Student’s specific OT needs and that the therapist intends to use various modes of intervention to help Student, including verbal prompts, visual demonstrations, redirection, increased structure, positive reinforcement and graded activities (Ex. J-7). I find that with OT assistance, Student has demonstrated decreased mouthing of objects, reduced excessive fidgeting and restraining the need to touch objects and people (Ex. J-6).

Accordingly, I find baseless the District’s assertion that Parent did not prove the appropriateness of the related services.

REMEDIES

Overview 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).

Moreover, 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 paid directly 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”). Finally, I will consider 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 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 C.F.R. § 300.148[d][1]). Equitable Considerations, Including Rate Requested and TDN Regarding rates sought, in the DPC, Parent did not request that the District be ordered to fund SETSS or related services at any specific rate (Ex. A). At the DPH, Parent’s Attorney #2 clarified that Parent was seeking “enhanced rates” for all services (Tr. #2 14), and in their Closing Brief, Parent’s Attorney #1 requested funding at the “provider’s prevailing market rate” (IHO Ex. V-10). However, Parent testified that they sought funding for all services at a “reasonable market rate” (Ex. E-3). For the reasons described below, I am ordering that the provider be paid at a “reasonable market rate” for any SETSS, OT or SLT that the District failed to provide during the 2022-2023 school year. The reasonable market rate shall be consistent with rates that have been paid by the Implementation Unit for comparable SETSS, SLT and OT within six months of the date of this Order, and is not to exceed $195 per hour.

The District has not challenged the requested rates nor have they put forth any evidence to prove that Provider Agency’s rates are unreasonable or that those rates are not comparable to other rates in the market for SETSS, OT or SLT.

Moreover, although District Representative #1 cross-examined Financial Officer about the rates, I find that Financial Officer credibly explained the basis for their rates.^[30] Direct Provider earns about $90 per hour (Tr. #2 84, 89). The SLP is paid between $62 per hour and approximately $100 per hour, and the Occupational Therapist is paid between $68 per hour and approximately $100 per hour (Tr. #2 85-86, 90). A portion of the charged rates funds: the direct rate for the provider; employee benefits; 1:1 supervision; educational resources and support; professional development; materials; employment taxes; administrative costs; and overhead costs (Ex. G-1; Tr. #2 83-84). In terms of 1:1 supervision, Direct Supervisor earns about $90 per hour, but is only paid for one hour of every five hours of service Director Provider administers (Tr. #2 90). Employee benefits could include FICA, disability insurance, workers compensation, unemployment and medical and dental insurance for full-time employees (Tr. #2 91). The Agency also pays financing interest incurred from lines of credit taken out because the District has not paid money owed to Provider Agency (Tr. #2 84). Financial Officer estimates that the District has not paid on the majority of cases this year, nor on about 50% from the prior year or cases from fiscal year 2020 (Tr. #3 84-85). Financial Officer estimates that the Agency is owed $45 million dollars just for pendency (Tr. #2 92).

As explained, I find that Parent specifically testified that they seek “reimbursement at a reasonable market rate” (Ex. E-3). The District has not challenged this request. In determining that Parent is entitled to a “reasonable market rate,” I find that Direct Provider of SETSS, although newly certified on January 19, 2022, is certified by NYS to teach students with disabilities from birth through Grade 2 and is trained to teach literacy and comprehension to school-aged students (Ex. F-2; Ex. I-1). Additionally, although SLP received their “Speech and Language Disabilities Initial Certificate” on September 2, 2022, they are properly licensed (Ex. F-2; Ex. I-2). I also find that Student’s Occupational Therapist is properly licensed (Ex. F-2; Ex I-3). ^[31]

Further, I find no equitable basis to decrease the request for a “reasonable market rate,” despite the fact that although Student was recommended to receive group SETSS and SLT (Ex. D-10), Provider Agency is administering SETSS and SLT in a 1:1 format. Parent was placed in a difficult position when the District impermissibly shifted its burden to Parent to implement the services it recommended in the March IESP. Had the District implemented the IESP, it could have ensured that Student received SETSS and SLT in a group setting. Moreover, I find that although Public School Psychologist testified about why the CSE made the recommendations it did, they did not testify as to why the SETSS or SLT could not be administered individually instead of in a group.

Finally, I find that, contrary to the District’s assertion, Parent provided the District a timely TDN. The sole contention the District makes regarding equities is that Parent failed to file notice until September 8, 2022 (IHO Ex. IV-12-13). I take official notice that NYC Public School students began on September 8, 2022.^[32] Thus, Parent was to have provided the District notice on August 24, 2022, ten business days prior to September 8, 2022. Although Parent testified through their affidavit that ten day notice was served on September 8, 2022 (Ex. E-2), the document itself (Ex. C-2), the accompanying email through which the District was served (Ex. C-1), and the District’s email acknowledging receipt are each dated August 23, 2022 (Ex. C-1). Accordingly, I find that the date in Parent’s affidavit testimony is a “ministerial error” and that notice was timely provided.

Reviewing the substance of the TDN, Parent, through Parent’s Attorney #1, explained that Parent was “very concerned that the IEP Team removed the SEIT Program and replaced it with so few periods of SETSS” (Ex. C-2). Parent also stated that they “rejecte[ed] the most recent reduced recommendations,” and concluded that they would place Student in Private School and seek reimbursement or direct funding for the “prior recommended services” (Ex. C-2). The District failed to respond (Ex. E-2). I find that the notice conforms to the ten day notice requirement.

Direct Funding for SETSS and Related Services

Parent seeks direct funding to Provider Agency for the SETSS, SLT and OT administered during the 2022-2023 school year (Ex. E-2, 3). As explained above, Parent is legally obligated to pay Provider Agency $195 per hour (Ex. E-3; Ex. H; Tr. #2 86-88). The Agreement further provides that Parent “is fully and completely” responsible to pay for any hours of services not paid for by the DOE (Ex. E-2; Ex. H; Tr. #2 86, 88-89). I find that Parent is entitled to the requested form of payment.

Pursuant to Connors v. Mills, 34 F.Supp.2d 795, 799, 805-06 (N.D.N.Y. 1998) “once the Burlington prerequisites are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately.” See also Mr. & Mrs. A. v. New York City Dep’t. of Educ., 769 F. Supp. 2d at 427 (stating that where the Burlington factors are met, the court may award retroactive direct payment of private school tuition.) Here, I find that Parent testified credibly that paying for services up front would cause “extreme financial hardship” and that Parent could not afford to pay for the services “without outside financial assistance” (Ex. E-2). I further find that Parent is not required to produce anything further to satisfy the request for direct funding. See Ferreira v. New York City Dep’t of Educ., 2023 WL 2499261 (S.D.N.Y. March 14, 2023) (noting that Court found no caselaw holding that “proof of inability to pay is required to establish the propriety of direct retrospective payment,” and that “where it is undisputed that the DOE is responsible for payment, and the DOE does not contest the reasonableness of the cost of tuition, it would be nonsensical to draw a distinction on equitable grounds between requiring the DOE to pay the school directly and forcing the parents to make an initial payment in the same amount that the DOE is then required to reimburse”).

As I have found that the Burlington/Carter test has been met, that there is no evidence that the rates sought are unreasonable, and that there is evidence that Parent is unable to pay for the SETSS, OT and SLT, I am granting the request for direct payment to Provider Agency for the 2022-2023 school year.

As the Agreement is already in the hearing record, it need not be re-submitted (Ex. H).

OTHER CONTENTIONS

Parent seeks payment of attorneys’ fees and expenses associated with representation in this matter (Ex. A-10). The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party. Entitlement, if any, to costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008; Application of a Child with a Disability, Appeal No. 06-109. I would be exceeding the scope of my authority by determining that Parent is the prevailing party entitled to attorney fees. Other than the relief set out in my Order below, and my findings detailed in this section of “Other Contentions,” 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 directly fund for the 10-month 2022-2023 school year, group Special Education Teacher Support Services (“SETSS”) Services five times per week to be administered in English by a licensed special education teacher of Parent’s choosing at a reasonable market rate. The reasonable market rate shall be consistent with rates that have been paid by the Implementation Unit for comparable services within six months of the date of this Order, and is not to exceed $195 per hour; and it is further

ORDERED that the DOE shall pay to Provider listed above within 30 days of receipt of invoices for services rendered and an accompanying sworn affidavit attesting that the services billed for were administered; and it is further

ORDERED that the DOE shall directly fund for the 10-month 2022-2023 school year, group Speech Language Therapy (“SLT”) two times per week for 30 minutes to be administered in English by a licensed Speech Language Therapist or Pathologist of Parent’s choosing at a reasonable market rate. The reasonable market rate shall be consistent with rates that have been paid by the Implementation Unit for comparable services within six months of the date of this Order, and is not to exceed $195 per hour; and it is further

ORDERED that the DOE shall pay to Provider listed above within 30 days of receipt of invoices for services rendered and an accompanying sworn affidavit attesting that the services billed for were administered; and it is further

ORDERED that the DOE shall directly fund for the 10-month 2022-2023 school year, individual Occupational Therapy (“OT”) one time per week for 30 minutes to be administered in English by a licensed Occupational Therapist of Parent’s choosing at a reasonable market rate. The reasonable market rate shall be consistent with rates that have been paid by the Implementation Unit for comparable services within six months of the date of this Order, and is not to exceed $195 per hour; and it is further

ORDERED that the DOE shall pay to Provider listed above within 30 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 if Parent requests assistance finding a provider to administer the above services at any time, the DOE must locate three providers who are ready, willing, and able to begin administering the services to 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.

June 23, 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 #1

REDACTED Parent’s Attorney #2

REDACTED District Representative #1

REDACTED District Representative #2

REDACTED District

REDACTED Private School

REDACTED Special Education Supervisor at

Provider Agency

REDACTED Financial Officer at Provider Agency

REDACTED Provider Agency

REDACTED Direct Provider

REDACTED Speech Language Pathologist

REDACTED Occupational Therapist

REDACTED Public School Psychologist

APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Due Process Complaint Committee on Preschool Education 09/08/2022 7 pages

B. Individualized Education Program 12/29/2021 14 pages

C. Ten Day Notice 08/23/2022 3 pages

D. Individualized Education Services Program 03/28/2022 13 pages

E. Affidavit of Parent 12/13/2022 3 pages

F. Affidavit of REDACTED 01/02/2023 3 pages

G. Affidavit of REDACTED 12/29/2022 2 pages

H. Contract 07/25/2022 1 page

I. Provider Credentials undated 3 pages

J. Progress Report 05/12/2022 21 pages

DOE EXHIBITS

1. Individualized Education Program (IEP) 03/28/2022 13 pages DOE

2. Social History Update 02/28/2022 3 pages DOE

3. Classroom Observation 03/15/2022 2 pages DOE

4. Affidavit of REDACTED 01/18/2023 4 pages DOE

IHO EXHIBITS

I. Email Seeking District’s Position on Pendency 02/20/2023 1 page

II. Order on Pendency 04/17/2023, 04/24/2023, 04/25/2023 03/06/2023 6 pages

III. Emails Regarding Submissions of Closing Briefs 05/02/2023 4 pages

IV. Closing Brief for the Department of Education 04/17/2023 13 pages

V. Parent’s Closing Brief 05/02/2023 10 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 appearance on December 14, 2022 are denoted “Tr. #1.” References to the transcript from the Due Process Hearing are denoted “Tr. #2.”

[5] Parent also invoked pendency (Ex. A-2). As explained below, on March 6, 2023, IHO #1 issued an Order on Pendency (IHO Ex. II; Tr. #2 13).

[6] As explained later in this FOFD, the District did not address implementation. They also did not brief the June 1st issue as directed.

[7] The Progress Reports list Student’s grade as Pre-1A (Ex. J-1, 4, 6).

[8] There is no indication that an appearance was held on January 25, 2023.

[9] There is no transcript for the February 16, 2023 appearance. I obtained information about that appearance from the Order on Pendency (IHO Ex. II). On February 20, 2023, by email, IHO #1 sought those positions, but the District did not respond (IHO Ex. I).

[10] Proffered Exhibit 1, the March 2022 IESP, was the same as Parent’s proffered Exhibit D (Tr. #2 16-17). I have cited to Parent’s Exhibit D in this decision (Tr. #2 16-17).

[11] I have determined that Exhibit J provides crucial information needed to address the District’s claims that the related services selected by Parent were inappropriate (IHO Ex. IV-10-12).

[12] Although the term “T5” was not defined, based upon Public School Psychologist’s testimony, I find that it refers to the “Turning 5” review the CSE conducts whereby students in preschool receiving services pursuant to IEPs are evaluated for special education and related services prior to entering kindergarten (Tr. #2 25-26, 34).

[13] Although Parent testified that TDN was served on September 8, 2022, the email reflects that Parent’s Attorney served the CSE TDN on August 23, 2022 (Ex. C; Ex. E-2).

[14] Although Financial Officer testified to those rates, the contract reflects that Parent is being charged $195 per hour for all services (Ex. H).

[15] It is my understanding that District Representative #1 is no longer employed by the DOE, and I take notice that the Closing Brief was filed by another individual. However, my directive was clear during the actual questioning and at the conclusion of testimony.

[16] I find Parent’s Attorney’s argument that dismissal would contradict the clear provisions set forth in 8 NYCRR § 200.5(i)(6) inapposite as the District is not alleging facial sufficiency, and that any arguments regarding pendency are not before me (IHO Ex. V-9).

[17] There are two distinctions to note, however, between career education and gifted students on one hand, and students with disabilities on the other. For the former two groups, their parents or guardians notify the district of residence by June 1st, while the parents or guardians of students with disabilities notify the district of location. This reflects differences in funding reimbursement for students with disabilities. The second distinction, and more pertinent to the current analysis, is that parents or guardians do not notify by a June 1st preceding a school year in question if it is the first year that the student is identified as a student with a disability. See § 3602-c(2)(a).

[18] For public school students with disabilities whose needs exceed what public schools can provide, the district can enroll them, at public expense, at approved nonpublic schools. See 20 U.S.C. § 1412(a)(10)(B). For purposes of this decision, further § 3602-c references to “public schools” and the students who attend them shall include these nonpublic schools and students.

[19] See McKinney's Consolidated Laws of NY, Book 1, Statutes §§ 73 and 92(a).

[20] See 20 U.S.C. § 1412 (a)(10)(C)(iii) (“[t]he cost of reimbursement . . . may be reduced or denied . . . if . . . 10 business days . . . prior to the removal of the child from the public school, the parents did not give written notice”) (emphasis added).

[21] I note that this sentence applies to “education for students with disabilities,” see id., which is defined, in part, as “special education programs designed to serve persons who meet the definition of [‘]children with disabilities[’] set forth in subdivision one of section forty-four hundred one of this chapter” and § 4401 defines “child with a disability” in part as “a person under the age of twenty-one who is entitled to attend public schools . . . and who, because of mental, physical or emotional reasons can only receive appropriate education opportunities from a program of special education.”

[22] See https://p12.nysed.gov/specialed/publications/policy/documents/chapter-378-laws-2007-guidance-on-nonpublic-placements.pdf. (last visited June 6, 2023).

[23] Given the District’s continuing obligations to all students who require special education and related services, no student entitled to such services should be deprived of them. Unless the District knows that a student no longer requires services pursuant to an IESP, the District remains obligated to create an IEP as Pupils enrolled in nonpublic schools for whom services are provided pursuant to the provisions of this section shall receive such services in regular classes of the it would for any student of whom they are or should be aware requires special education and related services.

[24] See https://infohub.nyced.org/docs/default-source/default-document- library/specialeducationstandardoperatingproceduresmanualmarch.pdf?sfvrsn=4cdb05a0_2&msclkid=3ab 70cadd15f11ec93b699324277a741 (last visited June 6, 2023).

[25] I also note that the District’s practice of placing a date in the “Projected Date of Annual Review” line of an IESP can cause further confusion to a parent and implies that the District will schedule an annual review of the IESP, irrespective of the June 1st notice. See generally Educ. Law § 3602-c(2)(b)(1) (stating, “the committee on special education of the school district of location . . . shall develop an individualized education service program for the student based on the student's individual needs in the same manner and with the same contents as an individualized education program”) (emphasis added).

[26] I note that in limiting but not obviating any application of the June 1st provision, I am not going as far as setting aside the word “shall” in § 3602-c(2)(a), as the Court appears to have done with § 3602-c(9) in Wieder.

[27] Although, as per my analysis above, such notice was not required in this matter.

[28] I have addressed equitable considerations regarding individual versus group services in the equities section of my decision.

[29] The District made no allegations regarding the appropriateness of the SETSS services. Accordingly, I am not addressing such.

[30] As noted, Financial Officer testified that Provider Agency charges $198 per hour for individual SEIT services/SETSS and $225 per hour for related services (Ex. G-1; Tr. #2 83). However, the contract Parent signed reflects that Provider Agency is only charging Parent $195 per hour for each service (Ex. H; Tr. #86- 87). Accordingly, I am not ordering that the District pay more than $195 per hour for any service.

[31] Parent presented no evidence that they attempted to locate SETSS providers willing to accept the DOE’s “standard rate” of payment, such as by calling independent providers listed on the District’s website or otherwise seeking assistance from the District (Ex. E). Although this is a factor to be considered, inasmuch as Parent seeks a “reasonable market rate,” and the District has not contested the rate, I find under the circumstances of this case, that the lack of such evidence has a negligible effect. Therefore, the absence of testimony in this regard does not affect my ultimate decision.

[32] See https://www.schools.nyc.gov/about-us/news//2022-2023-school-year-calendar (last visited June 6, 2023).