New York City Department of Education, Impartial Hearing Decision

CASE NUMBER:583643 NYC: 235364

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: December 13, 2022

Record Close Date: December 29, 2022

Date of Decision: January 31, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 13, 2022

For the Student:

REDACTED, Esq., Parent’s Attorney

REDACTED, Educational Director of Provider Agency

For the Department of Education:

REDACTED, District Representative

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 12-month 2022-2023 school year. Specifically, Parent alleges that, for the 12-month 2022-2023 school year, the District failed to: 1) convene an Individualized Education Program (“IEP”) Team meeting prior to the start of the 2022-2023 school year; 2) recommend a proper placement or services; and 3) failed to implement the services contained in a Findings of Fact and Decisions dated July 15, 2022 (“the 2022 FOFD”).^[2] (Ex. A; Ex. B; Tr. 6-8).

Regarding relief sought, at the outset, Parent invokes pendency (Ex. A-2; Tr. 9-10). Regarding final relief, Parent seeks a compensatory education award consisting of: Special Education Teacher Support Services (“SETSS”) to be provided in a group three periods per week to be administered in English; Speech-Language Therapy (“SLT”) to be provided individually two times per week for 30 minutes each session to be administered in English; and Counseling Services to be provided in a group one time per week for 30 minutes each session to be administered in English (Ex. A-2, 3; Ex. B; Ex. D-8; Ex. E-1; Tr. 8). Parent seeks these services for the 12-month extended school year (“ESY”) (Ex. A-2; Ex. D-1; Ex. E-1; Tr. 8). Moreover, Parent seeks an order requiring the District to fund the SETSS services by issuing payments to providers of Parent’s choosing at a “reasonable market rate” (Ex. A-3; Ex. E-2).^[3] Additionally, Parent seeks attorney’s fees and expenses and any other relief that may be just and proper (Ex. A-3; Tr. 6-7). Finally, Parent alleges that the program they chose is appropriate for Student and that equities weigh in their favor (Tr. 8-9).

In light of the foregoing and as more fully discussed below, I find that the DOE failed to provide Student a FAPE on an equitable basis for the 12- month 2022-2023 school year, and that the relief Parent seeks is appropriate. However, as more fully described below, I decline to award attorney’s fees and expenses.

PROCEDURAL HISTORY

On October 20, 2022, I was appointed as Impartial Hearing Officer (“IHO”) to preside over this matter. No Pre-hearing Conference (“PHC”) was held. ^[4]

On December 13, 2022, both Parties appeared virtually for the Due Process hearing (“DPH”). District Representative proffered no evidence or witnesses (Tr. 13).^[5] Parent’s Attorney submitted Exhibits A through I, which included affidavits by Parent (Ex. E) and Educational Director of Provider Agency (Ex. F) (Tr. 11-12). District Representative had no objection to their introduction, and I admitted all exhibits into evidence (Tr. 12). District Representative declined to present an opening statement (Tr. 13). Parent’s Attorney presented an opening statement (Tr. 7-11). Neither District Representative nor I had questions for Parent (Tr. 13). Accordingly, Parent testified through affidavit only (Ex. E). District Representative did not seek to cross examine Educational Director of Provider Agency (Tr. 13; IHO Exhibit I). However, as I had questions, Educational Director testified through affidavit and live testimony (Ex. F; Tr. 16-19). District Representative had to leave abruptly due to a weather-related emergency toward the end of Educational Director’s testimony (Tr. 19-20). Neither Party presented a closing statement (Tr. 10, 21; IHO Exhibit I).

FINDINGS OF FACT

After a full review of the record generated at hearing, I make the following findings of fact and determinations. Unless otherwise noted, none of the facts are contested in this matter.

Student has been identified as a Student with Speech or Language Impairment, presenting with various weaknesses including in reading comprehension, articulation skills, play skills, attention and focusing, and maintaining conversation (Ex. D-1; Ex. H-1). 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 maintain a “mainstream placement” (Ex. E-1). Student is making progress with SETSS, and requires those supports to continue making progress (Ex. F-4; Ex. H).

On April 8, 2021, the Committee on Special Education (“CSE”) convened to consider Student’s eligibility for special education and related services (Ex. D-1). The CSE developed an IESP recommending: SETSS to be provided in a group three periods per week to be administered in English; SLT to be provided individually two times per week for 30 minutes each session to be administered in English; and Counseling Services to be provided in a group one time per week for 30 minutes each session to be administered in English, with all services to be provided during an ESY (Ex. D-8, 1). The CSE did not convene in advance of the 2022-2023 school year, and the District has failed to provide or to fund any special education and related services to Student for the 2022-2023 school year (Ex. A). Student and Parent reside in New York City and Student is attending Private School for the 2022-2023 school year (Ex. A). Private School is located within the geographic boundaries of the DOE. On Friday, September 2, 2022, after 5:00 p.m., Parent, through Parent’s Attorney, sent the District a Ten Day Notice (“TDN”) dated September 8, 2022 (Ex. C; Ex. E-2).^[6] Pursuant to the TDN, Parent “consent[ed] to all services recommended on [the April 8, 2021] IESP being implemented by the DOE” (Ex. C-2). Parent further relayed that they were unable to locate SETSS and related service providers to provide services at the District’s “standard rate,” and therefore, Parent would implement the IESP on their own and seek reimbursement or direct payment from the District (Ex. C-2; Ex. E-2). Parent asked the District to respond if the District had any alternative options (Ex. C-2). The District failed to respond (Ex. E-2).

As the District had not implemented any services for Student, Parent attempted to locate a SETSS provider by calling independent providers appearing on a list on the District’s website (Ex. E-1-2). None of those providers were available to provide services to Student (Ex. E-1-2). Accordingly, Parent contacted Provider Agency (Ex. E-2). Provider Agency has been providing, and is able to continue to provide, three hours of SETSS services to Student for the 2022-2023 school year (Ex. E-2; Ex. F-3, 4; Ex. H-1, 5). Student’s SETSS are provided at Private School (Ex. F-3, 4; Ex. H-1). Although Student was recommended to receive group SETSS, SETSS are being provided in a 1:1 format because Provider Agency determined that “the individualized setting is really the only way” the Agency can target Student’s academic areas of concern, goals and behavior (Ex. 3, 4; Tr. 17). According to Provider Agency, Student requires highly individualized, hands-on methodologies in order to stay focused and not fall behind (Ex. 3, 4; Ex. H-1, 4; Tr. 17). Director of Provider Agency believes that the rate for group service would be “a little bit less” than the rate for individual service, perhaps “closer to about $150” (Tr. 17-18).

Student’s SETSS services are provided by Direct Provider who is certified by NYS to teach students with disabilities, and is trained to teach literacy and comprehension to school-aged students (Ex. F-3; Ex. I). Direct Provider’s certifications were issued in August and October 2021 (Ex. I). In addition to providing 1:1 service for Student, Direct Provider prepares for sessions, creates goals, writes progress reports and meets with teachers and parents (Ex. F-3). Provider Agency creates goals for Student, and reviews them quarterly (Ex. F-3). Student’s progress is measured through quarterly assessments, meetings between provider and staff, direct observations and daily session notes (Ex. F-4). Student is making progress with these services, which include instruction using Fundations and multi-sensory instruction (Ex. F-4; Ex. H-1).

Provider Agency charges $197 per hour for SETSS (Ex. F-2; Tr. 22). Of the $197, a portion of the rate funds 1:1 supervision, educational resources and support, professional development and materials, employment taxes, administrative costs and overhead costs (Ex. F-2).

On July 14, 2022, Parent signed a contract stating that it is Parent’s “responsibility to pay any balance of any fee that is not covered by the NYC Department of Education (DOE) prospective payment” (Ex. G-3; Tr. 18). The contract does not state the services that are to be provided or the rate for any service, but states that Parent is aware of the schedule of fees (Ex. G-3; Tr. 18). Parent seeks direct funding as it would be an “extreme financial hardship” for Parent to pay for the services (Ex. E-2).

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 § 3602-c(2). Then, the district of location's CSE must review the request and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]." Educ. Law § 3602-c(2)(b)(l).

Burden of Proof

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). 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-out-pocket educational expenses). Accordingly, I first must determine whether the District met its burden to demonstrate that its offered program was reasonably calculated and implemented to provide this Student with educational benefits. The District failed to provide Student a FAPE on an equitable basis for the 2022-2023 school year. Parent alleges and credibly testified that the DOE failed to implement three periods of SETSS per week for Student and SLT. The District, which bears the burden of proof, failed to put forth any evidence or witnesses or to even cross-examine Parents’ witnesses. 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.

Additionally, I find that the District failed to provide Student a FAPE by failing to convene and develop an IEP or IESP for Student in advance of the 2022-2023 school year. The CSE last drafted an IESP in April 2021 which lists a projected date of annual review of April 8, 2022 (Ex. D-1). The CSE failed to convene by April 8, 2022, thereby failing to provide Student a FAPE.

Left with no IEP or IESP, and therefore no special education or related services, Parent sought the services recommended in the April 2021 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 maintain a “mainstream placement” (Ex. E-1). Student is making progress with SETSS and requires those supports to continue making progress (Ex. F-4; Ex. H-1).

Moreover, Parent credibly testified that the DOE failed to implement any special education and related services at any time after the April 2021 IESP was drafted.

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.

A district cannot be absolved of its statutory obligation to implement services for the student simply by being inactive in implementing the mandated services. The DOE had the obligation to provide services to the Student in conformity with the IESP. See Educ. Law§ 3602-c(2)(a), (b)(l). In failing to do so, the DOE failed to provide the 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.

REMEDIES

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 directly paid is somewhat similar to the Burlington/Carter framework, which “forecloses any complete disavowal of the parent’s burden of production and persuasion related to the private, unilateral services obtained by the parent.” Application of a Student with a Disability, Appeal No. 20-115 (finding, inter alia, the analysis "unworkable to the extent that the SETSS services can be construed as a state-approved option”).

In determining whether a provider agency’s rates are reasonable and appropriate under the circumstances, various factors have been found relevant, including: the provider’s explanation of the rate, including its costs and the qualifications of its instructors (Application of a Student with a Disability, Appeal No. 20-140 [while “[g]enerally, teachers at a unilateral placement need not be State-certified . . . there must be objective evidence of special education instruction or supports that are specially designed by . . . providers . . . who have reasonable qualifications that are specifically related to the student’s deficits”]); the value that specialized certification, such as a bilingual extension, adds to instruction (Application of a Student with a Disability, Appeal No. 21-

183 [approving compensatory SETSS by a bilingual reading specialist at a rate not to exceed $200 per hour]); and the parent’s efforts to locate a DOE-approved SETSS provider from a list provided by the District to the parent (Application of a Student with a Disability, Appeal No. 21-096). Additionally, one must look to whether the parent directly paid the provider or is contractually obligated to pay the provider in the event the District is not ordered to fund SETSS at the requested rate. See e.g. Application of a Student with a Disability, Appeal No. 21-068 (holding that “it is not appropriate equitable relief . . . to require the district to either reimburse the parent for the costs of SETSS or to directly fund SETSS” where “there is inadequate proof that the parent has expended any funds to pay for SETSS . . . or is legally obligated to do so”). Ultimately, in light of these factors, I must determine whether the requested rate is unreasonable. See e.g., Application of a Student with a Disability, Appeal No. 21-138 (determining that “there is no basis for a finding that the rate of $175 was unreasonable”). 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]). Although I do believe a rate higher than what the DOE lists as it’s “standard rate” is warranted, I do not believe the DOE should fund the services at the provider’s prevailing rate in this matter. Ultimately, in keeping with Parent’s request, I find that the District should fund the SETSS services at a reasonable market rate and I further find that that rate should not exceed $150 per hour. In finding that the rate should not exceed $150 per hour, I find that Provider Agency’s rate of $197 per hour for SETSS for this Student is unreasonable (Ex. F-2; Tr. 22). Director did not testify to how much of the $197 is paid to Direct Provider, but did testify that a portion of the rate funds 1:1 supervision, educational resources and support, professional development and materials, employment taxes, administrative costs and overhead costs (Ex. F-2). Further, although Direct Provider is certified by NYS to teach students with disabilities, and is trained to teach literacy and comprehension to school-aged students, Direct Provider’s certifications were only issued in August and October 2021 (Ex. F-3; Ex. I). I am also unpersuaded that a higher rate is warranted based upon Direct Provider’s work. Tasks like preparing for sessions, creating goals, and writing progress reports are normal tasks associated with the services being provided (Ex. F-3). Additionally, although Director’s position is that Student requires 1:1 services (Ex. F-3, 4; Ex. H-1, 4; Tr. 17), Student’s IESP recommends group SETSS. The rate for group SETSS would be “a little bit less” than the rate for individual service, perhaps “closer to about $150” (Tr. 17-18). Finally, all of Student’s services are administered in English.

I also find that the $197 rate is unwarranted based upon Parent’s actions. Parent properly attempted to locate a SETSS provider through the list on the District’s website (Ex. E-1-2). As none of them were available to provide services to Student, Parent contacted Provider Agency (Ex. E-1-2). However, Parent did not serve the District with timely TDN informing the District that Parent would be seeking funding for services through Provider Agency (Ex. C; Ex. E-2). NYC Public School students began school on September 8, 2022. Accordingly, I find that Parent was to have provided the District notice on August 24, 2022, 10 business days prior to September 8, 2022. As Parent’s TDN was served on September 8, 2022, Parent deprived the District of the opportunity to remediate any issues raised in that notice (Ex. C; Ex. E-2). Finally, although Parent signed a contract stating that it is Parent’s “responsibility to pay any balance of any fee that is not covered by the NYC Department of Education (DOE) prospective payment,” the contract does not state the services that are to be provided or the rate for any service, just that Parent is aware of the schedule of fees (Ex. G-3; Tr. 18). For all the above reasons, I find that the rate of $197 per hour is unreasonable, and find that a rate not to exceed $150 is reasonable.

Regarding the related services of SLT and Counseling, I am ordering that the District issue Related Services Authorizations (“RSAs”) upon issuance of this Order.

OTHER CONTENTIONS

Parent seeks payment of attorney’s 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.

Only a court can determine who is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the 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

PENDENCY

I must also address Pendency/“Stay-Put” as the Parent raised the matter in their DPC but the DOE did not implement the Student’s Pendency/Stay Put services immediately upon the filing of the DPC (Ex. A-2). Parent asserts that pendency rests in the July 15, 2022 FOFD (Ex. A-2; Ex. B)

As discussed above, in New York students who are parentally placed in a nonpublic school are entitled to “equitable services.” NY Educ. Law § 3602-c(2). The IDEA and the New York State Education Law require that a student remain in their then current educational placement, unless the student’s parent(s) and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student. 20 U.S.C. § 1415(j); NY Educ. Law §§ 4404(4), 4410(7)(c); 34 C.F.R. § 300.518(a); 8 NYCRR § 200.5(m); see Student X v. New York City Dep’t of Educ., 2008 WL 4890440, at *20 (E.D.N.Y. 2008); Bd. of Educ. v. O’Shea, 353 F. Supp. 2d 449, 455-56 (S.D.N.Y. 2005). NY Education Law Section 3602-c(2)(c) further envisions the parent’s right to file due process complaints and be entitled to the same protections as those listed in NY Educ. Law § 4404, including the right to pendency. See NY Educ. Law § 3602-c(2)(b)(l) (“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”).

Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships. See Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982); Wagner v. Bd. of Educ., 335 F.3d 297, 301 (4th Cir. 2003); Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3d Cir. 1996).

Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement. Mackey v. Bd. of Educ., 386 F.3d 158, 163 (2d Cir. 2004), citing Zvi D., 694 F.2d at 906. Although not defined by statute, the phrase “then current placement” has been found to mean: (1) the placement described in the student’s most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP.

See Dervishi v. Stamford Bd. of Educ., 653 Fed. App’x 55, 57-58 (2d Cir. June 27, 2016), quoting Mackey, 386 F.3d at 163; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 (2d Cir. 2014) (holding that the pendency provision “requires a school district to continue funding whatever educational placement was last agreed upon for the child”); see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 (2d Cir. 2015) (holding that a student's entitlement to stay-put arises when a due process complaint notice is filed); Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 (3d Cir. 1996); Letter to Baugh, 211 IDELR 481 (OSEP 1987). A prior unappealed IHO decision may also establish a student’s current educational placement for purposes of pendency. Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197 (OSEP 2007).

Furthermore, the Second Circuit has stated that educational placement means “the general type of educational program in which the child is placed” (Concerned Parents, et. al. v. New York City Board of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]), and that the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers” (T.M., 752 F.3d at 171). However, if there is an agreement between the parties on the student’s educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student’s then-current educational placement. Bd. of Educ. v. Schutz, 290 F.3d 476, 483-84 (2d Cir. 2002); Evans v. Board of Educ., 921 F. Supp. 1184, 1189 n.3 (S.D.N.Y 1996); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 (S.D.N.Y. 2000), aff’d, 297 F.3d 195 (2d Cir. 2002); see also Letter to Hampden, 49 IDELR 197.

I find that the program described in the July 15, 2022 FOFD constitutes pendency and order the DOE to implement the program retroactive to September 8, 2022 (the date of the filing of the DPC) and continuing throughout the duration of this litigation per the Order below.

PENDENCY ORDER

IT IS HEREBY ORDERED, retroactive to the filing of the DPC (9/8/2022), that the DOE shall provide during the pendency of this matter, the following program and related services in accordance with the July 15, 2022 FOFD (Ex. B), namely:

• Special Education Teacher Support Services (“SETSS”), group, three periods per week to be administered in English; • Speech-Language Therapy, individual, two times per week, 30 minutes per session, to be administered in English; and • Counseling Services, group, one time per week, 30 minutes per session, to be administered in English (Ex. A-2; Ex. D-8).

ORDERS

IT IS HEREBY ORDERED THAT the Department of Education (“DOE”) shall fund Special Education Teacher Support Services (“SETSS”) three times per week to be administered in English by a licensed special education teacher of Parent’s choosing at a reasonable market rate of up to $150 per hour for any period during which said services are not provided by the DOE for the 12-month 2022-2023 school year; and it is further

ORDERED THAT the DOE shall reimburse Parent for the cost of the SETSS services described above within 15 days of receipt of proof of payment and an accompanying sworn affidavit attesting that the services billed for were provided; and it is further

ORDERED THAT the DOE shall pay to the Provider listed above upon within 15 days of receipt of invoices for services rendered and an accompanying sworn affidavit attesting that the services billed for were provided; and it is further

ORDERED THAT the DOE is to fund, for the 12-month 2022-2023 school year, Speech-Language Therapy (“SLT”) individually two times per week for 30 minutes per session to be administered in English by providing Parent Related Services Authorizations (“RSAs”) for said services within 15 days of the date of this Order; and it is further

ORDERED THAT the DOE is to fund, for the 12-month 2022-2023 school year, Counseling Services in a group one time per week for 30 minutes per session to be administered in English by providing Parent Related Services Authorizations (“RSAs”) for said services within 15 days of the date of this Order; and it is further

ORDERED THAT if Parent requests assistance finding a provider to provide the above services at any time, the DOE must locate three providers who are ready, willing, and able to begin providing the services to the Student according to the terms of this order. If Parent presents a good faith basis for rejecting the three providers, the DOE must locate two additional providers from which Parent may choose. The DOE shall not be required to identify more than five providers in any given six-month period. Nothing stated here prevents Parent from locating and utilizing a provider of their own choosing; and it is further

ORDERED THAT to the extent such services, as described above, are not utilized by Student by one year from the date of this Order, any remaining services shall expire; and it is further

ORDERED THAT the Committee on Special Education shall convene within 30 days of the date of this Order to consider Student’s eligibility for special education and/or related services, and if eligible, to develop an IESP or IEP in accordance with the IDEA and State law; and it is further

ORDERED that until such time as the Committee on Special Education convenes, the District must implement services as ordered above.

January 31, 2023 (signed electronically)

Ginger James Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

APPENDIX A- REDACTION IDENTIFICATION PAGE

Redacted Information Term Used In FOFD

REDACTED Student

REDACTED Parent

REDACTED Parent’s Attorney

REDACTED District Representative

REDACTED District

REDACTED Private School

REDACTED Educational Director of Provider

Agency

REDACTED Provider Agency

REDACTED Direct Provider

APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Due Process Complaint /08/2022 7 pages

B. (Case Number REDACTED) 07/15/2022 14 pages

C. Ten Day Notice 09/02/2022 2 pages

D. Individualized Education Services Program 04/08/2021 10 pages

E. Affidavit of Parent 12/08/2022 3 pages

F. Affidavit of REDACTED 12/01/2022 4 pages

G. Contract 09/05/2022 3 pages

H. Progress Report 11/23/2022 5 pages

I. Provider Credentials undated 1 page

DOE EXHIBITS

None

IHO EXHIBITS

I. IHO Emails Regarding District’s Cross and 12/22/2022 and Closing Statement 12/29/2022 4 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] The 2022 FOFD is based upon an Individualized Education Services Program (“IESP”) dated April 8, 2021 (“the April 2021 IESP”) (Ex. B).

[3] In the DPC, Parent’s Attorney had requested that “the program” be funded at the providers’ prevailing rate (Ex. A-3; Tr. 6-7). However, as noted, at the DPH, Parent requested “market rate.” Further, Parent’s Attorney made no reference to the rate sought for the related services.

[4] Although no Pre-Hearing Conference was held in this matter, a Settlement Conference was conducted on November 29, 2022. Settlement conferences are conducted by an OATH IHO not assigned to the case whose purpose is to aid the parties in exploring and facilitating a resolution to the DPC. The subject of the conferences is confidential, and the parties are directed to attend with knowledge of the dispute and settlement authority should there be an interest in resolution.

[5] References to the transcript from the Due Process Hearing are denoted “Tr.”

[6] Labor Day was observed on Monday, September 5, 2022. Although the email was sent on September 2, 2022, it was sent after traditional business hours and the letter was dated Thursday, September 8, 2022. Accordingly, for purposes of this decision, I refer to the TDN as dated September 8, 2022.