New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 588471 – NYC: 239653

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

School District: N.Y.C. Dept. of Ed., District # [REDACTED]

Impartial Hearing Officer: Roberta Wolf

Date of Filing: 09/28/2022

Hearing Requested by: Parent

Date of Hearing: 01/30/2023

Record Close Date: 02/24/2023

Date of Decision: 02/24/2023

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 30, 2023:

For the Department of Education:

[REDACTED], Representative

For the Student:

[REDACTED], Representative

BACKGROUND

On September 28, 2022, the Parent, by and through her attorney’s law firm, filed a due process complaint (DPC) against DOE on behalf of the Student, under Case No. 239653, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1415(f)) and Section 4404(1) of the New York State Education Law (Education Law). ^[1]

In the DPC, the Parent asserts that DOE failed to provide the Student with a free appropriate public education (FAPE) for the 2022-2023 school year after DOE’s Committee on Special Education (CSE) convened a review meeting on June 8, 2022, and replaced Special Education Itinerant Teacher (SEIT) services (bilingual Yiddish) with Integrated Co-Teaching (ICT) services (bilingual Yiddish).^[2] The Parent also alleges that DOE failed to make available any service providers on either of the Student’s individualized educations plans (IEPs), current or past, and after an independent search, the Parent could only find a provider willing to work at rates that exceeded DOE’s standard scale.^[3] The Parent now seeks reinstatement of the SEIT and related services as previously mandated, and at an enhanced rate for the service provider. ^[4]

PROCEDURAL HISTORY

I was appointed impartial hearing officer (IHO) for this case on December 21, 2022, after the rescission of two prior IHOs. The parties thereafter received time to try to resolve the matter without the need for an impartial hearing; however, at a pre-hearing conference held on January 3, 2023, they agreed that settlement negotiations proved unsuccessful. I granted an Order on Extension that same day. The parties appeared for a due-process hearing on January 30, 2023.

At the due process hearing, DOE did not present a case and did not cross-examine the Parent’s affiants. The Parent’s case consisted of documentary evidence and testimony (affidavit form), a list of which is appended to this Order.

FINDINGS OF FACT

The Student is [REDACTED] years old and his eligibility for special education supports and services is not in dispute. Per the Student’s 2017 IEP, the DOE classified him as a “Preschool Student with a Disability,” and mandated the following services: four hours per week of SEIT services administered bilingually in Yiddish; and two, 30-minute weekly sessions of speech-language (s/l) therapy, also administered bilingually in Yiddish.^[5] DOE did not provide those services; and the Parent could not locate a provider willing to work for DOE’s standard rate. ^[6] The Parent thereafter contracted with [REDACTED] ([REDACTED]), on September 22, 2022, to provide four periods of weekly SETSS at a rate of $195 per hour and two periods of s/l therapy at $300 per hour.^[7] [REDACTED] financial officer attested in a one-and-a-quarter page affidavit consisting of a total of 10 sentences that its enhanced rates were justified because it employed a large staff, incurred significant monthly overhead, and took on high-interest loans to cover expenses while waiting for reimbursement from DOE. ^[8]

ANALYSIS

The IDEA provides that children with disabilities are entitled to a FAPE,^[9] which consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive, written IEP.^[10] DOE offers a student a FAPE when: (a) it complies with the procedural requirements set forth in the IDEA; and (b) develops an IEP that is reasonably calculated to enable the student to receive educational benefits.^[11] To meet its substantive FAPE obligations, DOE 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.”^[12] Here, DOE did not defend that it provided the Student a FAPE; therefore, I am constrained to find that DOE failed to offer the Student a FAPE for the 2022-2023 10-month school year. Moreover, a review of the record herein establishes that the weight of the evidence supports that conclusion.

In addition to DOE’s confirmation that it would not present a case, DOE offered no response to the Parent’s requested relief. The Parent seeks an order that DOE continue the services mandated by the 2017 IEP and issue payment directly to the Student’s SETSS and s/l therapy provider at enhanced rates of $195 and $300 per hour, respectively.^[13] However, “an outright default judgment awarding any and all of the relief requested without question is a disfavored outcome.”^[14] The State Review Office (SRO) has held that when 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.^[15] Because the Parent had to find the provider on her 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.”^[16] Thus, in a case such as this, where the central issue is whether a third-party SETSS provider selected by a parent should be remunerated with an enhanced rate over what DOE normally pays, the Parent’s evidence must be scrutinized, consistent with my obligation and equitable authority to ensure that the remedy “be appropriate in light of the purpose of the Act.”^[17] The evidence therefore must show that the SETSS provider’s rates are reasonable and appropriate under the circumstances.

Factors relevant to the reasonableness of a SETSS rate include: the provider’s explanation of the rate, including its costs and the qualifications of its instructors;^[18] the value that specialized certification, such as a bilingual extension, adds to instruction;^[19] the Parent’s efforts to locate a DOE-approved SETSS provider from a list provided by the Department to the of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]).

Parent;^[20] and whether the Parent directly paid the Provider or is contractually obligated to pay the Provider in the event that DOE is not ordered to fund SETSS at the requested rate. ^[21]

On this record, I find that the Parent did not establish that the provider’s enhanced rates were reasonable and appropriate. The [REDACTED] affiant provided no information about the qualifications of its instructors, rates of pay, specialized certifications, bilingual abilities, or any breakdown of costs. Indeed, the affiant offered only a brief, vague, and unsupported claim that high-interest loans were responsible for its inflated rates, but provided no further explanation or documentation. Moreover, the Parent provided no specific information as to what efforts she made to locate DOE-approved providers, nor did she offer any evidence that she ever notified DOE of an enhanced-rate claim prior to filing the DPC on September 28, 2022, so as to provide DOE the opportunity to modify its offered rates in light of her claims. ^[22]

In consideration of all of the relevant equitable factors, I reduce the award commensurate with the insufficiencies in the Parent’s evidence as follows.

ORDER

Based upon the above Findings of Fact, it is HEREBY:

1. ORDERED that the Student is entitled to four (4) weekly hours of SEIT services/SETSS administered bilingually in Yiddish for the 2022-2023, 10-month school year.

2. FURTHER ORDERED that DOE shall provide or fund the Student’s SEIT services/SETSS for the 2022-2023, 10-month school year, at a rate not to exceed $175 per hour, and shall issue payment directly to the provider of the Parent’s choosing, within 30 days of satisfactory proof of services rendered, as determined by DOE’s Implementation Liaison.

3. FURTHER ORDERED that the Student is entitled to receive two, weekly, individual 30-minute sessions of speech-language therapy, administered bilingually in Yiddish, for the 2022-2023, 10-month school year.

4. FURTHER ORDERED that DOE shall provide or fund the Student’s speech-language therapy sessions at a rate not to exceed $175 per hour, and shall issue payment directly to the provider of the Parent’s choosing, within 30 days of satisfactory proof of services rendered, as determined by DOE’s Implementation Liaison.

5. FURTHER ORDERED that the CSE team shall meet within 30 school days from the date of this Order to create a current IEP or Individualized Education Services Program (IESP) for the Student for the 2022-2023 school year.

SO ORDERED.

DATED: 02/24/2023

/s/ Roberta Wolf, Esq.

Impartial Hearing Officer

Roberta Wolf

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 EVIDENCE

PARENT EVIDENCE

A. Due Process Complaint 09/28/2022 6 pages

B. IEP 01/24/2017 3 pages

C. Parent Contract 09/22/2022 1 page

D. [REDACTED] Affidavit 01/27/2023 2 pages

E. [REDACTED] Affidavit 01/12/2023 2 pages

Footnotes

[1] Ex. A.

[2] Id.

[3] Ex. A, C-E.

[4] Ex. A-E. Parent’s evidence referred to the relief sought as both SEIT and Special Education Teacher Support Services (SETSS), but also more generally as “special education services.”

[5] Ex. B.

[6] Ex. D.

[7] Ex. C-E.

[8] Ex. E.

[9] 20 U.S.C. § 1400 (d)(1)(A).

[10] 34 C.F.R. § 300.13.

[11] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

[12] Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017).

[13] Ex. E.

[14] See Application of a Student with a Disability, Appeal No. 22-054 (June 22, 2022) at pg. 3 (citing Branham v. Govt.

[15] 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 resource)).

[16] 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.”).

[17] East Lyme Bd. of Educ., 790 F.3d at 454 (citation omitted).

[18] 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.”).

[19] Application of a Student with a Disability, Appeal No. 21-183, at pp. 20-21 (Oct. 29, 2021) (approving compensatory SETSS by a bilingual reading specialist at a rate not to exceed $200 per hour).

[20] See e.g., Application of a Student with a Disability, Appeal No. 21-096 (May 26, 2021).

[21] See 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”).

[22] See e.g., Application of a Student with a Disability, Appeal No. 21-138 (Aug. 11, 2021) (finding that despite a per se reasonableness of the rate, a rate reduction imposed by the IHO was justified where the parent did not provide a ten-day notice, per 20 U.S.C. § 1412[a][10][C][iii] and 34 CFR § 300.148[d][1]).