New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 583644 – NYC: 235365

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: January 10, 2023

Record Close Date: February 10, 2023

Date of Decision: February 17, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 28, 2022

For the Student:

REDACTED, Esq., Parent’s Attorney #1

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 10, 2023

For the Student:

REDACTED, Esq., Parent’s Attorney #2

REDACTED, Supervisor of Special Education Services at Provider Agency

For the New York City 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 2022-2023 school year. Specifically, Parent alleges that, for the 2022-2023 school year, the District failed to: 1) convene an Individualized Education Program (“IEP”) Team meeting prior to the start of the school year; 2) recommend a proper placement or services; and 3) failed to implement the services contained in an Individualized Education Services Program (“IESP”) dated December 23, 2020 (“the 2020 IESP”) (Ex. A; Tr. #2 16-19; Ex. B). ^[2]

Regarding relief sought, at the outset, Parent invokes pendency (Ex. A-2; Tr. #2 18). Regarding final relief, Parent seeks a compensatory education award consisting of Special Education Teacher Support Services (“SETSS”) to be provided in a group four times per week to be administered in REDACTED (Ex. A-2, 3; Tr. #2 16; Ex. B-4; Ex. F). Parent seeks an order requiring the District to fund the SETSS by issuing payments to providers of Parent’s choosing at a “reasonable market rate” (Ex. A-3; Tr. #2 18-19; Ex. F-2).^[3] Additionally, Parent seeks attorney’s fees and expenses and any other relief that may be just and proper (Ex. A-3).

In light of the foregoing and as more fully discussed below, I find that the DOE failed to provide Student a FAPE on an equitable basis for the 2022-2023 school year, and that the relief Parent seeks is appropriate. 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, the Parties were scheduled to appear virtually for the Due Process Hearing (“DPH”). However, due to an emergency, the DPH was adjourned to December 28, 2022 (Tr. #1 4; Tr. #2 12).

On December 28, 2022, Parent’s Attorney #1 and District Representative appeared virtually for the DPH. I granted the Parties’ request for an adjournment so that settlement could be further explored, and rescheduled the DPH for January 10, 2023 should settlement not be reached (Tr. #1 5-6)

On January 10, 2023, Parent’s Attorney #2 and District Representative appeared virtually for the DPH. District Representative proffered no evidence or witnesses (Tr. #2 14, 22). Parent’s Attorney submitted Exhibits A through G, which included affidavits by Parent (Ex. F) and Supervisor of Special Education Services at Provider Agency (“Supervisor”) (Ex. G) (Tr. #2 14-15). District Representative had no objection to their introduction, and I admitted all exhibits into evidence (Tr. #2 15-16). District Representative declined to present an opening statement (Tr. #2 16). Parent’s Attorney #2 presented an opening statement (Tr. #2 16-20). Neither District Representative nor I had questions for either witness (Tr. #2 13, 22). Accordingly, Parent and Supervisor testified through affidavit only (Ex. F, G). Although neither Party presented a closing statement, District Representative explained that the District did not present a case because they had offered four periods of SETSS, and that “the dispute is over the rate, which is something we would not be coming to agreement on anyway” and that they believed the rate needed to be “judicially decided” (Tr. #2 23). Pursuant to the Parties’ request, I granted an extension of the compliance date to February 20, 2023 (Tr. #2 19-20, 21-22).

FINDINGS OF FACT

After a full review of the record generated at the 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 a Learning Disability, presenting with various weaknesses including reading comprehension, fluid reasoning skills, verbal functioning, shortterm memory, attention and social skills (Ex. B-1, 2; Ex. F-1). A Fountas and Pinnel assessment demonstrated “a significant delay in [Student’s] reading skills” (Ex. G-2). Given Student’s struggles, Student requires extra assistance, without which Student would be unable to remain in a “mainstream placement” (Ex. F-1). Student is making progress with SETSS, and requires those supports to continue making improvements (Ex. G-3).

On December 23, 2020, the Committee on Special Education (“CSE”) convened to consider Student’s eligibility for special education and related services (Ex. B-1). The CSE developed an IESP recommending SETSS to be provided in a group four times per week to be administered in REDACTED (Ex. B-4).

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.

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). As the District had not implemented any services for Student, Parent attempted to locate a SETSS provider (Ex. F-1). Parent was unable to locate a provider who would work with Student at the DOE’s “standard rate” (Ex. F-1). Accordingly, Parent contacted Provider Agency (Ex. F-2). ^[5]

On September 2, 2022, Parent, through Parent’s Attorney, sent the District a Ten Day Notice (“TDN”) (Ex. C; Ex. F-2). Pursuant to the TDN, Parent “consent[ed] to all services recommended on [the December 23, 2020] IESP being implemented by the DOE” (Ex. C-2). Parent further relayed that they were unable to locate SETSS and related service providers to administer 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. F-2). Parent asked the District to respond if the District had any alternative options (Ex. C-2). The District failed to respond (Ex. F-2).

Provider Agency has been providing, and is able to continue to provide, four hours of SETSS services to Student for the 2022-2023 school year (Ex. F-2; Ex. G-2). Student’s SETSS are provided at Private School (Ex. G-2). Although Student was recommended to receive group SETSS, SETSS are being provided in a 1:1 format (Ex. B-4; Ex. G-2). Student’s SETSS services are provided by Direct Provider who is certified by NYS to teach students with disabilities and is bilingual in REDACTED (Ex. G-2; Ex. E). Direct Provider’s certifications were issued in June and September 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. G-2). Provider Agency creates goals for Student and reviews them quarterly (Ex. G-3). Student’s progress is measured through quarterly assessments, meetings between Direct Provider and staff, direct observations and daily session notes (Ex. G-4). Student is making progress with these services (Ex. G-3). ^[6] Provider Agency charges $195 per hour for SETSS (Ex. G-1). Of the $195, a portion of the rate funds: 1:1 supervision; educational resources and support; professional development and materials; employment taxes; and administrative and overhead costs (Ex. G-1).

On July 4, 2022, Parent signed a contract stating that Parent is “financially responsible to pay for the services provided by [Provider Agency],” and Parent “will be relieved from financial responsibilities” if the DOE pays the agency (Ex. D; Ex. F-2). Although the contract states that the Provider Agency will provide SETSS for the 2022-2023 school year, the contract fails to state a rate for those services (Ex. D). Parent seeks direct funding as it would be an “extreme financial hardship” for Parent to pay for the services (Ex. F-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 testified that the DOE failed to implement four periods of SETSS per week for Student. The District, which bears the burden of proof, failed to put forth any evidence or witnesses or to even cross-examine Parent’s witnesses. As District Representative explained, “the dispute is over the rate . . . so for that reason I didn’t really put on a case because I believe it would have to be judicially decided” (Tr. #2 23). Accordingly, although the District did not explicitly 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 on December 23, 2020 which lists a projected date of annual review of December 23, 2021 (Ex. B-1).

Left with no IEP or IESP, and therefore no special education or related services, Parent sought the services recommended in the December 2020 IESP. Student has been identified as a Student with a Learning Disability, presenting with a significant delay in reading skills and weaknesses in a variety of other areas (Ex. B-1, 2; Ex. F-1; Ex. G-2). Student requires extra assistance to remain in a “mainstream placement” and is making progress with SETSS (Ex. F-1; Ex. G-3).

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 at the time the DPC was filed, Parent sought funding for SETSS at the Provider Agency’s “prevailing rate,” Parent has since modified their request to funding at a “reasonable market rate.” The District had not put forth any evidence regarding “market rate,” and did not question either witness. 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 the rate should not exceed $195 per hour.

Supervisor at Provider Agency testified that the rate for SETSS is $195 per hour (Ex. G-1). Of the $195, a portion of the rate funds: 1:1 supervision; educational resources and support; professional development and materials; employment taxes; and administrative and overhead costs (Ex. G-1). Although the Direct Provider is certified by NYS to teach students with disabilities and is bilingual in REDACTED (Ex. G-2; Ex. E), those certifications were issued in June and September 2021 (Ex. I). A “reasonable market rate” should be commensurate with such experience.

Additionally, although Student’s IESP recommends group SETSS, Provider Agency is administering SETSS in a 1:1 format (Ex. B-4; Ex. G-2). A “reasonable market rate” should be set accordingly. Finally, a “reasonable market rate” should account for the late TDN Parent provided to the DOE. On September 2, 2022, Parent sent the District a TDN informing the District that Parent would be seeking funding for services through Provider Agency (Ex. C; Ex. F-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 2, 2022, Parent deprived the District of a full opportunity to remediate any issues raised in that notice (Ex. C; Ex. F-2). For all the above reasons, I find that the District is to fund four periods of SETSS services for the 202-2023 school year at a “reasonable market rate” which is not to exceed $195 per hour.

OTHER CONTENTIONS

Parent seeks payment of attorney’s fees and expenses associated with representation in this matter (Ex. A-3). 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 December 23, 2020 IESP (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 December 23, 2020 IESP 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 December 23, 2020 IESP (Ex. B), namely:

• Special Education Teacher Support Services (“SETSS”), group, four times per week to be administered in REDACTED (Ex. A-2; Ex. B-4).

ORDERS

IT IS HEREBY ORDERED THAT the Department of Education (“DOE”) shall fund Special Education Teacher Support Services (“SETSS”) four times per week to be administered in REDACTED by a licensed special education teacher of Parent’s choosing at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services for group SETSS within 6 months of the date of this Order for any period during which said services are not provided by the DOE for the 2022-2023 school year. This “reasonable market rate” shall not exceed $195 per hour; 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 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 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.

February 17, 2023 (signed electronically)

Ginger James Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

APPENDIX A- REDACTION IDENTIFICATION PAGE

Redacted Information Term Used In FOFD

REDACTED Student

REDACTED Parent

REDACTED Parent’s Attorney #1

REDACTED Parent’s Attorney #2

REDACTED District Representative

REDACTED District

REDACTED Private School

REDACTED Supervisor of Special Education

Services at Provider Agency

REDACTED Provider Agency

REDACTED Direct Provider

APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Due Process Complaint Individualized Education Services Program 09/02/2022 6 pages

B. (“IESP”) 12/23/2020 7 pages

C. Ten Day Notice (“TDN”) 09/02/2022 2 pages

D. Contract 07/04/2022 1 page

E. Provider Credentials Undated 1 page

F. Affidavit of Parent 12/22/2022 2 pages

G. Affidavit of REDACTED 12/28/2022 3 pages

DOE EXHIBITS

None

IHO EXHIBITS

None

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 Due Process Hearing scheduled for December 28, 2022 are denoted “Tr. #1,” and references to the transcript from the Due Process Hearing held on January 10, 2023 are denoted “Tr. #2.”

[3] In the DPC, Parent’s Attorney #2 had requested that “the program” be funded at the provider’s prevailing rate (Ex. A-3). However, at the Due Process Hearing, Parent sought “market rate” (Tr. #2 18-19; Ex. F-2).

[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] Although Parent testified that they contacted Provided Agency after sending the TDN, Parent had signed a contract with the Agency on July 4, 2022 (Ex. D).

[6] Although Supervisor testified that “the progress report entered into evidence is an accurate representation” of what Direct Provider is working on with Student (Ex. G-2), no such report was entered into evidence.