New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 583670 – NYC: 235391

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 28, 2022

Record Close Date: February 5, 2023

Date of Decision: April 30, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 28, 2022

For the Student:

REDACTED, Esq., Parent’s Attorney

REDACTED, Administrative Director of Special Education Services at Provider Agency REDACTED, Financial Officer 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 implement the services contained in an Individualized Education Services Program (“IESP”) dated June 8, 2022 (“the June 2022 IESP”) (Ex. A; Tr. 5-6).

Regarding relief sought, at the outset, Parent invokes pendency (Ex. A-2; Tr. 11). Regarding final relief, Parent seeks a compensatory education award consisting of: Special Education Teacher Support Services (“SETSS”) to be provided individually five periods per week to be administered in REDACTED; Speech-Language Therapy (“SLT”) to be provided individually two times per week for 30 minutes to be administered in REDACTED; Occupational Therapy (“OT”) to be provided two times per week for 30 minutes to be administered in English;^[2] and Physical Therapy (“PT”) to be provided individually two times per week for 30 minutes to be administered in English (Ex. A-2, 3; Ex. D-1; Tr. 9). Parent seeks an order requiring the District to fund the SETSS and SLT by issuing payments to providers of Parent’s choosing at a “reasonable market rate” and to fund the OT and PT through Related Services Authorizations (“RSAs”) (Ex. A-3; Ex. D-2; Tr. 6, 10, 11, 34).^[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. 10, 33-34). District Representative does not contest that the District recommended equitable services as requested by Parent, and that the District failed to implement those services (Tr. 16).^[4] However, District Representative contends that Parent did not prove that they are responsible to pay for the services as no contract exists between Parent and Provider Agency (Tr. 32-33). The District opposes Parent’s request for pendency, arguing that Student is not entitled to due process or pendency under federal or New York State (“NYS”) (IHO Ex. II; Tr. 11-16).

In light of the foregoing and as more fully discussed below, I find that Parent is entitled to pendency and am issuing an Order on Pendency. I also find that the District 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, 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. ^[5]

On December 13, 2022, the Parties were to have appeared for commencement of the Due Process Hearing (“DPH”). However, due to an unexpected emergency, the Parties were unable to appear, and I rescheduled the DPH for December 28, 2022 (Tr. 4). ^[6] On December 28, 2022, both Parties appeared virtually for the DPH. District Representative proffered no evidence or witnesses (Tr. 6). Parent’s Attorney submitted Exhibits A through K, which included affidavits by Parent (Ex. D), Administrative Director of Special Education Services at Provider Agency (“Director”) (Ex. E), and Financial Officer at Provider Agency (“Financial Officer”) (Ex. F) (Tr. 7-9). District Representative had no objection to their introduction, and I admitted all into evidence (Tr. 8-9). District Representative presented an opening statement (Tr. 9), followed by Parent’s Attorney (Tr. 9-11). The Parties also addressed their positions on pendency (Tr. 11-21). Director provided direct testimony through affidavit and answered questions posed by me (Ex. E; Tr. 22-25). District Representative did not cross-examine Director (Tr. 25). Financial Officer testified by affidavit and live testimony, including cross-examination by the District (Ex. F; Tr. 28-31). As neither District Representative nor I had questions for Parent, Parent testified through affidavit only (Ex. D; Tr. 32). Each Party presented a closing statement (Tr. 32-33; 33-34).

On December 30, 2022, by email, District Representative submitted a Memorandum on Pendency (IHO Exs. I and II).

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 weaknesses in receptive language, articulation and expressive language, as well as with deficits in cognition, fine and gross motor skills and social/emotional skills (Ex. B-1-5; Ex. D-1; Ex. G; Ex. H; Ex. I). Student is making progress with SETSS and SLT, and requires those supports to continue improving and to maintain a “mainstream placement” (Ex. D-1; Ex. E-4). Although Student was recommended to receive OT and PT, and Provider Agency offers those services, the Agency is not providing those services to Student (Ex. D-2; Ex. E-2, 3; Ex. F-1). ^[7]

On June 6, 2022, the Committee on Special Education (“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. B-1, 12). At the time, Student had been receiving Special Education Itinerant Teacher (“SEIT”) services, SLT, OT and PT through the Committee on Pre-School Education (“CPSE”) (Ex. B-1). The CSE determined that Student’s full scale IQ score was within average range, with low average scores related to tasks requiring “greater levels of motor precision or language expression,” and not to cognitive difficulties (Ex. B-1). Student does exhibit some cognitive issues, though, such as: difficulty sorting objects by color and shape; nesting cubes of different sizes; identifying number symbols; counting; identifying and labeling basic shapes; and problem solving (Ex. B-1, 2, 3). Student demonstrates a delayed understanding of spatial concepts, difficulty utilizing trial and error tactics, and delayed quantitative skills (Ex. B-1). Student’s delayed receptive language skills hinders their abilities to follow multi-step directions, repeat a sequence of multiple numbers or words, and answer questions (Ex. B-2). Student’s “significantly” weak expressive language skills manifest as follows: speaking in short, incomplete sentences that lack proper tone and inflection; ending statements in a questioning tone; not initiating conversation; demonstrating limited vocabulary; and failing to self-advocate (Ex. B-2). Student has weak jaw stability and has difficultly closing their mouth, resulting in poor articulation and unintelligibility (Ex. B-2). Student demonstrates “significant gross and fine motor delays,” with gross motor skills delayed by approximately 12 months (Ex. B-4). Student cannot perform activities such as standing on one leg, catching a ball, negotiating stairs or jumping (Ex. B-4). Student exhibits “moderate” levels of delay in tracing complex shapes, cutting and copying objects, coordinating eye movements, and manipulating small objects (Ex. B-4). Student exhibits delays in eye-hand coordination, and has difficulty dressing and undressing and using utensils (Ex. B-2, 4). Student is also “a very anxious child” who experiences social difficulties (Ex. B-3). As a result, the CSE developed an IESP recommending SETSS to be provided individually five periods per week to be administered in REDACTED; SLT to be provided individually two times per week for 30 minutes to be administered in REDACTED; OT to be provided two times per week for 30 minutes to be administered in English; and PT to be provided individually two times per week for 30 minutes to be administered in English (Ex. B-9). Services were to begin on September 1, 2022 (Ex. B-1).

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-2).

Student and Parent reside in New York City and Student is attending kindergarten at Private School for the 2022-2023 school year (Ex. A; Tr. 22-23). Private School is located within the geographic boundaries of the DOE.

On August 25, 2022, Parent, through Parent’s Attorney, sent the District a Ten Day Notice (“TDN”) (Ex. C; Ex. D-2). 8 Pursuant to the TDN, Parent “consent[ed] to all services recommended on [the June ^[8], 2022] 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). Parent asked the District to respond if they had any alternative options (Ex. C-2). The District failed to respond (Ex. D-2).

As the District had not implemented any services for Student, Parent attempted to locate a SETSS provider by calling independent providers found on a list on the District’s website (Ex. D-2). None of those providers were available to provide services to Student (Ex. D-2). Accordingly, Parent contacted Provider Agency (Ex. D-2). Provider Agency has been administering the recommended SETSS and SLT to Student and is able to continue to do so for the remainder of the 2022-2023 school year (Ex. D-2; Ex. E-3; Ex. F-1). Student is receiving the services at Private School (Ex. E-2).

Student’s SETSS services are administered by Direct Provider #1, Direct Provider #2 and Direct Provider #3 (Ex. E-3). Direct Provider #1 is certified by NYS to teach students from birth through 2nd grade who have disabilities (Tr. 23; Ex. E-3; Ex. J-2), and Direct Providers #2 and #3 are certified to teach students from 1st through 6th grades who have disabilities (Tr. 23, 24; Ex. E-3; Ex. J-3, 4). Direct Providers #2 and #3 are capable of working with Student because Student is only one grade below 1st grade and Direct Providers’ training and schooling taught them to work with students performing two or three grades below their grade level, which would include the kindergarten level (Tr. 23-24). They are also supervised by Educational Supervisor who is “trained across the . . . different grades” (Ex. E-3; Tr. 24). Although all three are “bilingual REDACTED providers,” only Direct Provider #3 holds a bilingual extension certification (Ex. E-3; Ex. J-2-4). All three are trained to teach literacy and comprehension to school-aged students (Ex. E-3). Services are typically provided outside of the classroom (Ex. E-4).

In addition to providing 1:1 service for Student, Direct Providers prepare for sessions, create goals, write progress reports and meet with teachers and parents (Ex. E-3). Student’s progress is measured through quarterly assessments, meetings between provider and staff, direct observations and daily session notes, and Student has made progress with these services (Ex. E-4).

With the support of SETSS administered by the same Provider Agency during the 2021-2022 school year, Student learned to answer questions about themselves and their experiences and to ask for basic needs when prompted (Ex. G-1).^[9] Providers used various tools such as visuals, games, various prompt levels, worksheets, manipulatives, modeling and positive reinforcement (Ex. G-1, 2). Student’s Speech Language services are provided by a NYS licensed Speech Language Pathologist (“SLP”) who also holds a bilingual extension certification (Ex. E-3; Ex. J-1). SLP worked with Student during the 2021-2022 school year, as well (Ex. H-1).^[10] To help Student with their various speech and language-related weaknesses, during the 2021-2022 school year, SLP used numerous interventions, including articulation drills, manipulatives, visuals, songs, worksheets, literacy books, hand-over-hand prompts, modeling and verbal cue prompts (Ex. H-2).

Provider Agency charges $198 per hour for individual SETSS and $225 per hour for related services (Ex. F-1; Tr. 28-29). A portion of the hourly rate funds 1:1 supervision, educational resources and support, professional development and materials, employment taxes, insurance fees, administrative costs and overhead costs (Ex. F-1).

Parent signed a contact obligating Parent to pay for the SETSS and SLT the Agency is providing (Ex. D-2, ¶¶ 6-8). Neither Parent nor Financial Officer could produce that contract (Tr. 28, 29, 30). The Agency’s system is set up so that a student cannot receive services without a signed contract (Tr. 30), and Financial Officer had “never had a contract missing in the file” (Tr. 30). On or about December 16, 2022, Provider Agency drafted an “Acknowledgement of Liability” (Tr. 29, 30; Ex. K). The document is not on the Agency’s letterhead, nor is it countersigned by anyone from the Agency (Ex. K; Tr. 30). Parent signed the document, acknowledging that the Agency charges $198 per hour for SETSS, that the Agency is providing Student SETSS, and that Parent is “liable to pay [Provider Agency] the full amount in the event that the Impartial Hearing Officer does not issue a ruling for the full amount requested” (Ex. K).^[11] Parent recognizes the “[a]cknowledgment to be an enforceable, legally binding agreement in the State of New York” (Ex. K). The Agency did not have Parent sign a liability form for the related services (Tr. 29). Financial Officer explained that “it is the understanding that it’s the parent’s responsibility to make sure, you know, that the services are paid for,” and that Parent is responsible for both the SETSS services and the speech services (Ex. K; Tr. 29, 30-31). Parent seeks direct funding because 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 Department 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 District failed to implement the services the CSE recommended on the June 2022 IESP. The District, which bears the burden of proof, failed to put forth any evidence or witnesses, and stated that it does not contest that the District recommended equitable services as requested by Parent, and that the District failed to implement those services (Tr. 16). Accordingly, I find that the District failed to meet its burden to prove that it provided Student a FAPE for the 2022-2023 school year.

As the District failed to implement the June 2022 IESP, Parent sought the services themselves. 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. D-1). Student’s deficits and needs are extensively documented in the June 2022 IESP and the progress reports (Ex. B-1-5; Ex. G; Ex. H; Ex. I). Student is making progress with the SETSS and SLT that Provider Agency is administering, and Student requires those supports to continue making progress (Ex. E-4; Ex. G; Ex. H). 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 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”).

At the outset, I find that Parent is legally obligated to make payments to Provider Agency for both SETSS and SLT. Neither Parent nor Financial Officer could locate the contract for those services (Tr. 29). However, Parent testified that they had signed a contract with Provider Agency obligating them to pay for the SETSS and SLT being administered to Student (Ex. D-2, ¶¶ 6-8). Financial Officer corroborated this, testifying that Parent had to have signed a contract because the Agency’s system is set up so that a student cannot receive services without one (Tr. 28, 29, 30). Financial Officer also testified that “it is the understanding that it’s the parent’s responsibility to make sure, you know, that the services are paid for,” and that Parent is responsible for both the SETSS services and the speech services (Ex. K; Tr. 29, 30-31). Accordingly, despite the District’s assertions to the contrary (Tr. 32-33), I find that the testimony alone is sufficient to prove that Parent is obligated to the Agency for payment for the SETSS and the SLT (Ex. D-2-¶¶ 6-8; Tr. 29, 30-31).

As I find that the testimony is sufficient, I have assessed lesser weight to the “Acknowledgment of Liability,” finding that it supports the unrefuted testimony regarding the contract. On or about December 16, 2022, Provider Agency drafted an “Acknowledgement of Liability,” which Parent signed (Tr. 29, 30; Ex. K). By signing the document, Parent acknowledged that the Agency charges $198 per hour for the SETSS it is providing to Student and that Parent is “liable to pay [Provider Agency] the full amount in the event that the Impartial Hearing Officer does not issue a ruling for the full amount requested” (Ex. K). Financial Officer testified that they had “never had a contract missing in the file,” that they were aware of the form and that the Agency had Parent sign the form (Tr. 29, 30). While I am not convinced that the document, by itself, is “an enforceable, legally binding agreement in the State of New York” (Ex. K), particularly because it is not countersigned, in the context of this administrative proceeding, I find that it supports the testimony that Parent is obligated to pay for the SETSS services. As to the SLT, no reason was provided for the Agency’s failure to include the SLT on the Acknowledgement of Liability (Tr. 29), but again, the testimony establishes that Parent is liable for payment of those services, as well.

Regarding the request for direct payment to Provider Agency, I credit Parent’s testimony that it would be an “extreme financial hardship” for Parent to pay for the services (Ex. E-2).

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]). Provider Agency charges $198 per hour for individual SETSS and $225 per hour for related services, with a portion of the hourly rate funding: 1:1 supervision; educational resources and support; professional development and materials; employment taxes; insurance fees; administrative costs; and overhead costs (Ex. F-1; Tr. 28-29). Parent attempted to locate providers using the District’s list of providers, but was unable to locate anyone available to administer services to Student (Ex. D-2).

I find that Parent is entitled to direct funding of SETSS and SLT at a “reasonable market rate,” to be determined by the District’s Implementation Unit, at rates not to exceed $198 and $225 per hour, respectively. Provider Agency provided justification for their rates of $198 per hour for SETSS and $225 per hour for related services (Ex. E-3; Ex. F-1), and District Representative did not produce any evidence regarding an appropriate rate. Therefore, I do not find those rates unreasonable. I also find that although parent initially requested that SETTS and SLT be funded at the “provider’s prevailing rate” or at an “enhanced rate” (Ex. A-3; Tr. 6, 10, 11), Parent testified that they sought such funding at a “reasonable market rate,” and in their Closing Statement, Parent’s Attorney requested funding at “the prevailing market rate” (Ex. D-2, Tr. 34).

In determining my award, I also find that the CSE recommended individual SETSS services to be administered in REDACTED (Ex. B-9), and that Provider Agency is supporting Student with “individualized sessions that include a great deal of specialized instruction” (Ex. E-4). Although only one of the Direct Providers holds a bilingual extension certification, all three are “bilingual REDACTED providers” (Ex. E-3; Ex. J-2-4). Additionally, I find that Direct Providers #2 and #3 are certified to teach students from 1st through 6th grades who have disabilities (Tr. 23, 24; Ex. E-3; Ex. J-3, 4), and are not specifically certified to teach students in kindergarten, like Student. However, I credit Director’s testimony that Direct Providers #2 and #3 have been trained to work with students who function on a kindergarten level (Tr. 23-24), and that they are supervised by Educational Supervisor who is “trained across the . . . different grades” (Ex. E-3; Tr. 24).

Regarding SLT, I find that Student is receiving services from a NYS licensed SLP who has been licensed for approximately 14 years and who also holds a bilingual extension certification (Ex. E-3; Ex. J-1).

For all of the above reasons, I am ordering that the District pay Provider Agency a “reasonable market rate” for SETSS and SLT. As to the OT and PT, apart from the testimony and evidence that the District failed to implement Student’s IESP, Parent presented no testimony or evidence regarding whether Student has received OT and/or PT services and if so, by whom. Student is entitled to these services, and I am ordering that the District issue RSAs upon issuance of this Order and in accordance with the requested relief (Ex. A-3; Tr. 6, 34).

Finally, although I find that Parent did not timely serve the District TDN, I am not reducing the award because the notice was only one day late and was proper in all other respects. NYC Public School students began on September 8, 2022.^[12] Accordingly, I find that Parent was to have provided the District notice on August 24, 2022, ten business days prior to September 8, 2022. On August 25, 2022, Parent, through their attorney, sent the District a TDN (Ex. C). The notice documented the issues, explained that Parent would implement the IESP on their own and seek reimbursement or direct payment from the District, and asked the District to respond (Ex. C-2). The District did not (Ex. D-2).

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, and asserts that pendency rests in the June 2022 IESP (Ex. A-2; Ex. B). The DOE did not implement the Student’s Pendency/Stay Put services immediately upon the filing of the DPC, and has since opposed Parent’s request for pendency, arguing that Student is not entitled to pendency under federal or NYS law (IHO Ex. II; See generally Tr. 11-17).

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).

Here, the District opposes pendency because Student is parentally placed in a nonpublic school (IHO Ex. II). Specifically, it argues that by voluntarily placing Student in a nonpublic school, Parent has no right to file a due process complaint for the implementation of equitable services under N.Y. Educ. Law § 3602-c and thus has no attendant right for Student to remain in their thencurrent educational placement during the pendency of these proceedings (IHO Ex. II- 2-8; Tr. 12, 15, 17). District Representative also argues that Parent has no right to a pendency hearing or an order (IHO Ex. II-2-8; Tr. 12, 16-17). District Representative further asserts that because Parent voluntarily placed Student in a nonpublic school, the school is their “then-current placement,” and any services outside of that placement are supplemental to pendency (IHO Ex. II-2, 3, 8-9; Tr. 15-16). Finally, the District asserts that they have offered to resolve this matter and do not contest that the District previously recommended the equitable services contained in the June 2022 IESP (IHO Ex, II- 2, 3; Tr. 11, 12, 13, 14, 16).

Parent’s Attorney counters that pendency is an “automatic stay put entitlement” triggered the moment a DPC is filed (Tr. 18, 20). They argue that it is “strange to imagine that a student would be fully entitled to services under pendency while not being entitled to pendency itself” (Tr. 18). Parent’s Attorney further explained that the IDEA and NY statutes are to be read in conjunction with each other and not in contradiction of each other (Tr. 18-19), and that caselaw supports their position (Tr. 18, 19).

As threshold issue, therefore, is whether the Student is entitled to pendency. For the reasons stated below, I find that Student is entitled to pendency.

Parents of students with disabilities who have voluntarily enrolled their children in nonpublic schools may seek to obtain educational services, commonly known as “equitable services,” for their children at the DOE’s expense. See generally N.Y. Educ. Law. § 3602-c. Such services include “special educational programs designed to serve persons who meet the definition of children with disabilities as set forth in [N.Y. Educ. Law § 4401].” N.Y. Educ. Law §§ 3602c(1)(a, d). Once requested, the district of location’s Committee on Special Education (“CSE”) must “develop an [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an individualized education program.” N.Y. Educ. Law § 3602c(2)(b)(1). The district must also ensure that such educational services are “made available to students with disabilities attending nonpublic schools” on an “equitable basis” as compared to the services delivered to students attending public schools located within the district. Id.

Parents who disagree with the CSE’s recommendations on their children’s IESPs are permitted to seek review “pursuant to the provisions of [N.Y. Educ. Law § 4404].” Id. As the District has pointed out, § 3602-c does not explicitly address implementation failures of the type at issue in this case (IHO Ex. II-5). However, the New York State Education Department has opined that “[a] parent of a student who is a NYS resident who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location.” 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 (Sept. 2007)^[13] (emphasis added); see also Gabel ex. rel. L.G. v. Bd. Of Educ, 368 F. Supp. 2d 313, 332–33 (S.D.N.Y. 2005) (holding that an IHO has jurisdiction to hear claims regarding a district’s failure to provide related services to a parentally placed student attending a nonpublic school). Parents, therefore, have a right to initiate due process proceedings under N.Y. Educ. Law § 4404 for implementation failures when their children are parentally placed pursuant to N.Y. Educ. Law § 3602-c. To conclude otherwise would lead to absurd results, providing a parent the procedures by which to challenge what they believe to be improper recommendations, but leaving the parent powerless to address a district’s failure to provide the services to which everyone agrees the student is entitled. Section 4404, in turn, establishes a student’s right to pendency. N.Y. Educ. Law § 4404(4)(a) (“During the pendency of any proceedings conducted pursuant to this section . . . unless the local school district and the parents or persons in parental relationship otherwise agree, the student shall remain in the then current educational placement of such student.”). Because § 3602-c(2)(b)(1) expressly incorporates § 4404’s due process procedures, the DOE’s argument is without merit, and I find that the Student is entitled to pendency as a matter of law.

Additionally, I find the District’s argument that the Code of Federal Regulations “expressly bars the pursuit of DPCs and pendency for IESPs” inapposite (IHO Ex. II-4-5). It is well-established that a state law may provide procedural protections above and beyond its federal law counterpart. See, e.g., LIH v. New York City Bd. of Educ., 103 F. Supp. 2d 658, 668 (E.D.N.Y. 2000) (stating that, “[w]hile the IDEA establishes a basic floor of education, state law may mandate a more protective standard of educational services and procedural protection.”).

Finally, District Representative asserts that neither a Pendency Hearing nor Order on Pendency are proper because the District offered to resolve this matter and does not contest that the District previously recommended the equitable services contained in the June 2022 IESP (IHO Ex. II-2, 3; Tr. 11, 12, 13, 14, 16). I find that the portion of the assertion that neither a Hearing nor an Order are proper because the District wishes to settle the matter unavailing. Pendency is not predicated upon whether the Parties wish to enter an agreement nor is it a remedy to be sought solely upon a failed negotiation. It is a procedural right to a continuation of previous services, which is a separate matter from settling the merits of a parent’s claims through negotiations. Further, Pendency is an entitlement that vests at filing. Accordingly, the District was automatically required to implement pendency for this Student on September 8, 2022.

To the extent that the District further asserts that a Pendency Order is not required because there is no dispute, I find that argument unavailing as well. I do agree that my intervention would only be required if there was a dispute. However, putting aside for a moment that no resolution was ultimately reached, by failing to enter into a Pendency Agreement and/or implementing pendency, the District created a dispute requiring my intervention. Starting on September 8, 2022, the District should have implemented pendency–regardless of whether the District believed it could negotiate a successful settlement. Accordingly, left without the protection of pendency, Parent sought intervention. Moreover, I find any assertion that an Order is not needed because the District offered a settlement problematic because an offer to settle is merely an offer. Until an agreement is accepted and signed by all parties, it is not a resolution.

Having found that Student is entitled to pendency, I must determine the appropriate placement. Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement. See 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. See Abrams v. Carranza, 2019 U.S. Dist. LEXIS 95403 at *8 (S.D.N.Y. June 6, 2019); 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.

Finally, “placement” refers not just to a student’s classroom setting, but also to their related services. Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 453 (2d Cir. 2015) (“[T]he IDEA defines ‘free appropriate public education’ to include ‘special education and related services.’”) (quoting 20 U.S.C. § 1401(9)) (emphasis in original); Letter to Baugh, 211 IDELR 481 (OSEP 1987) (“The term ‘present educational placement’ . . . would generally be taken to mean the current education and related services provided in accordance with the child’s most recent individualized education program.”) (emphasis added). Accordingly, I find the District’s argument unavailing that services sought pursuant to an IESP “fall outside” of and are “supplemental” to the “then current educational placement” (IHO Ex. II-1, 2, 7-8).

I find that the program described in the June 2022 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 Pendency Order immediately 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 June 8, 2022 IESP (Ex. B), namely:

• Special Education Teacher Support Services (“SETSS”), group, five periods per week to be administered in REDACTED; and • Speech-Language Therapy (“SLT”), individual, two times per week, 30 minutes, to be administered in REDACTED; and • Occupational Therapy (“OT”), individual, two times per week, 30 minutes, to be administered in English; and • Physical Therapy (“PT”), individual, two times per week, 30 minutes, to be administered in English (Ex. A-2; Ex. B-9).

ORDERS

IT IS HEREBY ORDERED that the DOE shall fund for the 10-month 2022-2023 school year, a bank of 180 hours of Special Education Teacher Support Services (“SETSS”) to be administered in REDACTED by a licensed special education teacher of Parent’s choosing. The provider shall be paid at a reasonable market rate for any period during which said services are not provided by the DOE for the 2022-2023 school year. The reasonable market rate shall be consistent with rates that have been paid by the Implementation Unit for comparable individual SETSS within six months of the date of this Order, and is not to exceed $198 per hour; and it is further

ORDERED that the DOE shall pay to the Provider listed above upon 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 the DOE shall fund for the 10-month 2022-2023 school year, a bank of 36 hours of Speech Language Therapy (“SLT”) Services to be administered in REDACTED by a licensed speech language pathologist of Parent’s choosing. The provider shall be paid at a reasonable market rate for any period during which said services are not provided by the DOE for the 2022-2023 school year. 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 $225 per hour; and it is further

ORDERED that the DOE shall pay to the Provider listed above upon 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 the DOE shall fund for the 10-month 2022-2023 school year, a bank of 36 hours of Occupational Therapy (“OT”) to be administered in English by a licensed provider of Parent’s choosing. The provider shall be paid by providing Parent Related Services Authorizations (“RSAs”) for said services; and it is further

ORDERED that the DOE shall fund for the 10-month 2022-2023 school year, a bank of 36 hours of Physical Therapy (“PT”) to be administered in English by a licensed provider of Parent’s choosing. The provider shall be paid by providing Parent RSAs for said services; 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 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 provided to Student by one year from the date of this Order, any remaining services shall expire.

April 30, 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 Administrative Director of Special

Education Services at Provider Agency

REDACTED Financial Officer at Provider Agency

REDACTED Provider Agency

REDACTED Direct Provider #1

REDACTED Direct Provider #2

REDACTED Direct Provider #3

REDACTED Educational Supervisor

REDACTED Speech Language Pathologist

APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Due Process Complaint 09/08/2022 6 pages

B. Individualized Education Services Program 06/08/2022 12 pages

C. Ten Day Notice 08/25/2022 2 pages

D. Affidavit of Parent 12/12/2022 3 pages

E. Affidavit of REDACTED 12/13/2022 4 pages

F. Affidavit of REDACTED Special Education Teacher Support Services 12/12/2022 2 pages

G. Progress Report 02/24/2022 3 pages

H. Speech Progress Report 02/24/2022 2 pages

I. Occupational Therapy Progress Report 02/25/2022 2 pages

J. Provider Credentials Undated 4 pages

K. Acknowledgment of Liability 12/16/2022 1 page

DOE EXHIBITS

None

IHO EXHIBITS

I. District Email Submitting Memorandum of Law in Support of the New York City Department of Education’s Position Concerning Pendency Memorandum of Law in Support of the New York City Department of Education’s 12/30/2022 1 page

II. Position Concerning Pendency 12/29/2022 9 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] Parent’s request for OT to be administered in REDACTED in accordance with the June 2022 IESP appears to be a mistake. The IESP recommends that OT be administered in English (compare Ex. B-9 with Ex. A- 2, 3; Ex. D-1; Tr. 9).

[3] Parent initially sought funding of the SETSS and SLT at the “provider’s prevailing rate” or at an “enhanced rate” (Ex. A-3; Tr. 6, 10, 11). However, Parent testified that they sought such funding at a “reasonable market rate,” and in their Closing Statement, Parent’s Attorney requested funding at “the prevailing market rate” (Ex. D-2; Tr. 34).

[4] District Representative initially asserted that a “due process complaint based on strict implementation is inappropriate in this case” (Tr. 12), but later stated, “[a]t this time, I’m not moving to dismiss the due process complaint” (Tr. 17).

[5] Although no PHC was held, a Settlement Conference was conducted on November 29, 2022. Settlement conferences are conducted by an OATH Settlement Officer or 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 content 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. Settlement Conferences are not recorded.

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

[7] Although Provider Agency is not providing OT to Student for the 2022-2023 school year, Parent’s Attorney proffered an OT report from the agency dated February 25, 2022, which documented OT services they provided during the 2021-2022 school year (Ex. I). Parent’s Attorney presented no testimony or evidence regarding whether Student is receiving OT and PT elsewhere for the 2022-2023 school year, and if so, by whom.

[8] Although Parent testified that the TDN was served on September 8, 2022, the email reflects that Parent’s Attorney served the CSE on August 25, 2022 (Ex. C; Ex. D-2).

[9] The Report is dated February 24, 2022 (Ex. G).

[10] This Report is also dated February 24, 2022 (Ex. H).

[11] Parent’s Attorney also explained why the Acknowledgment was created (Tr. 25).

[12] See https://www.schools.nyc.gov/about-us/news//2022-2023-school-year-calendar (last visited April 30, 2023).

[13] See https://p12.nysed.gov/specialed/publications/policy/documents/chapter-378-laws-2007-guidance-on-nonpublic-placements.pdf.