New York City Department of Education, Impartial Hearing Decision

CASE NUMBER:586600 – NYC:238015

FINDINGS OF FACT AND DECISION

Case Number:	238015
Student’s Name:	REDACTED (hereinafter “Student”)
Date of Birth:	REDACTED
School District:	REDACTED (hereinafter “School District”)
Impartial Hearing Officer:	R. Emily Rodriguez, Esq.
Date of Filing:	12/05/2022
Hearing Requested by:	REDACTED (hereinafter “Parent”)
Date of Hearing:	02/21/2023
Record Close Date:	04/05/2023
Date of Decision:	04/05/2023

BACKGROUND

On December 5, 2022, Parent filed a Due Process Complaint (DPC) alleging that the Department of Education (DOE) failed to implement an individualized education service plan (IESP) for the 2022-2023 school year. Parent seeks an order directing the DOE to implement the IESP with a provider at “their prevailing rate” for services. (P - F). On February 21, 2023, both parties appeared for a due process hearing.

Based upon the hearing record, I find: 1) that the DOE failed to implement the IESP denying Student a free appropriate public education (FAPE) for the 2022-2023 school year; and 2) that most of the relief Parent seeks is appropriate.

PROCEDURAL HISTORY

During the due process hearing the DOE did not seek to introduce witness testimony nor any other evidence and conceded it had failed to offer Student an appropriate education for the school year at issue. Parent’s Attorney submitted nine (9) exhibits into the record. Parent Attorney’s evidence included affidavit(s) from: Parent and Educational Director.

FINDINGS OF FACT AND DECISION

Except for circumstances not applicable here, the burden of proof is on the school district during an impartial hearing (Educ. Law § 4404(1)(c); see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014))

The IDEA provides that children with disabilities are entitled to a FAPE (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) (20 U.S.C. § 1401[9]). Under State law, 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 (Educ. Law § 3602-c [2]). In response, the district 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]). Further, the location district is responsible for implementing the IESP services (Educ. Law § 3602-c [2] [a]). The Committee on Special Education (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]).

In the instant matter, Student and Parent resided in New York City and Student attended a New York City private school during the 2022-2023 school year. (P - F). It is undisputed that Student is entitled to services pursuant to the IEP dated January 6, 2022. (P - B). The DOE did not allege and did not submit any evidence to prove that the services were implemented. Therefore, it is undisputed that the DOE failed to implement the services set forth in the IEP. It is noted that Parent has located a provider to implement the IEP services at “reasonable market rate.” (P – I).

However, the hearing record does not clearly reveal what is a reasonable market rate. Parent’s Attorney argues that Service Provider should be paid at a “reasonable market rate”. (February 21, 2023 T). However, upon cross examination Educational Director could not detail how they calculated the $195 per hour rate they charge for Special Education Teacher Support Services (SETSS). (P – H). The hearing record establishes that Service Provider pays the SETSS provider $90 per hour. (February 21, 2023 T). There is no evidence to establish why Service Provider should be paid $100 above the rate that is being paid to providers for SETSS. Further, Parent did not detail how much they were obligated to pay Service Provider. Parent indicated “I signed a contract which obligates me to pay for these services in the event that the DOE does not pay the Agency for the services provided.” (P - I). The contract Parent refers to does not indicate how much Parent would be responsible to pay if the unpaid balance is not covered by the NYC Department of Education. (P – D). The hearing record supports a finding that Service Provider’s rates are excessive. See Application of a Student with a Disability, Appeal No. 11-045. Based on the totality of the record, I find Service Provider should be paid at rate of $150 per hour for the services provided to Student.

Considering the foregoing, the DOE has failed to establish that Student was provided a FAPE on an equitable basis for the 2022-2023 school year.

Other Relief

The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party; and entitlement, if any, to costs must be determined by a court of competent jurisdiction. Only a court can determine who is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that Parent is the prevailing party entitled to costs.

Other than the relief set out in my Order below, I find that no basis and/or evidence in the Record supports any additional relief.

ORDER

Based on the foregoing, it is hereby:

1. ORDERED, within 30 days of this order, the DOE shall fund the following services for the entirety of the 2022-2023 (10) ten-month school year:
   1. (3) three hours per week of Special Education Teacher Support Services, by Service Provider at a rate of up to $150 per hour,
   2. (1x30) one times thirty minutes per week of Occupational Therapy, by a provider of Parent’s choosing at a rate of up to $150 per hour,
   3. (2x30) two times thirty minutes per week of Speech-Language Therapy, by a provider of Parent’s choosing at a rate of up to $150 per hour, and it is further,
2. ORDERED, the DOE shall pay the providers within 30 days of receipt of invoices for services rendered, and it is further,
3. ORDERED, to the extent such services, as described in Paragraph (1) above, are not provided to Student by September 1, 2023, any remaining services shall expire, and it is further,
4. ORDERED, the DOE shall convene a CSE within 30 days to develop an IEP or IESP for Student, and it is further,
5. ORDERED, the DOE shall continue to provide any related services that the DOE is currently providing.

SO ORDERED.

DATED: April 5, 2023

R. Emily Rodriguez, Esq.

Impartial Hearing Officer

ORDER ON PENDENCY

Student’s Name: REDACTED (hereinafter “Student”)

Request Date/Date Complaint Filed: 12/05/2022

Student’s pendency program is based upon the following:

IEP/IESP Dated 01/06/2022

Unappealed Findings of Fact and Decision Case No. Enter #. Dated ________

Agreement of the Parties Dated ________

Other (explain) __________

Student’s pendency program is the following:

Service or Item	Ratio or Frequency (if applicable)	For 10 or 12 Months
SETSS	3 hours per week	10 months
Speech-Language Therapy	2x30 minutes per week	10 months
Occupational Therapy	1x30 minutes per week	10 months

The Department of Education (“DOE”) took the following position regarding the pendency program above:

Did not contest.

Agreed to the information above.

The DOE was given an opportunity to respond on______ and did not respond nor provide its position.

This pendency program shall be retroactive to the date of filing of the Due Process Complaint on December 5, 2022, and, unless modified by a subsequent order or agreement, shall continue until the conclusion of the case.

SO ORDERED.

DATED: April 5, 2023

R. Emily Rodriguez, Esq.

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.

DISTRICT EXHIBITS

NONE

PARENT EXHIBITS

Letter	Name of Document	Date	Pages
A	DPC	9/12/2022	6
B	CPE IEP	1/6/2022	17
C	TDN	09/12/2022	3
D	Parent Contract	09/02/2022	1
E	Provider Credentials	09/21/2022	2
F	Amended DPC	12/05/2022	4
G	IESP	5/1/2022	10
H	Affidavit of Educational Director	1/24/2023	4
I	Affidavit of Parent	1/24/2023	3

IHO EXHIBITS

NONE

APPENDIX

Redacted Information	Term Used In FOFD
[REDACTED]	Student
[REDACTED]	Student’s Age
[REDACTED]	Student’s Date of Birth
[REDACTED]	Parent
[REDACTED]	Parent’s Attorney
[REDACTED]	DOE Attorney
[REDACTED]	Private School
[REDACTED]	Service Provider
[REDACTED]	School District
[REDACTED]	Educational Director
[REDACTED]	SETSS Provider