New York City Department of Education, Impartial Hearing Decision

Case Number: 593015 – NYC: 243481

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

District: REDACTED

Impartial Hearing Officer: Cynthia M. Lindblom

Date of Filing: December 8, 2022

Hearing Requested by: REDACTED

Date of Hearing: March 9, 2023

Record Close Date: March 21, 2023

Date of Decision: March 23, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 9, 2023

For the Student:

REDACTED, Parent of REDACTED, as pro-se

For the Department of Education:

REDACTED, Consultant Impartial Hearing Representative

BACKGROUND

Student^[1] is a REDACTED child who is classified by the New York City Department of Education (“DOE” or “District”) as a child with Speech or Language Impairment (Ex. 1 at 1). Student has been struggling with speech and language development since infancy (Ex. F at 1). Student has received speech and language support since an early age and is parentally placed in a non-public school (Ex. F at 1).

During the 2020 – 2021 school year, Student received speech therapy services provided by the DOE, however parent found that progress was slow (Ex. F at 1). In an effort to supplement DOE’s services, Parent hired a private speech therapist, which yielded, according to the Parent, disappointing results (Ex. F at 1). During the summer of 2021, Student received services from a provider who was willing to accept DOE’s Related Services Authorizations (“RSAs”), and, per Parent, achieved “beautiful progress” (Ex. F at1). During the 2021 – 2022 school year, DOE and the Parent were unable to find a speech therapist for the Student; therefore the Student went without services for the year (Ex. F at 1). During the summer of 2022, Student went to a private speech therapist for limited sessions in July and was expected to resume those sessions for the upcoming school year using the RSAs (Ex. F at 1). After multiple attempts to contact the speech therapist, the Parent was later informed that the speech therapist was unavailable (Ex. F at 1-2).

At the start of the 2022 – 2023 school year, Parent contacted a highly recommended Speech-Language Pathologist (“SLP”) (Ex. F at 2; Tr. 53). The SLP executed a contract with Parent to provide Speech-Language Therapy (“SLT”) to the Student from September 6, 2022 to June 30, 2023 (Ex. B). The services would be provided as follows: two sessions per week, 30 minutes per session, at a rate of $180.00 per session (Ex. B).

Regarding final relief, Parent seeks a compensatory education award of Speech-Language Therapy to be provided for the 2022 – 2023 school year, consisting of two sessions per week, 30 minutes per session, at a rate of $180.00 per session (Ex. B). Parent seeks an order requiring the District to fund these related services by issuing payments to SLP at the above rate.

In light of the foregoing and as more fully discussed below, I find that the DOE failed to provide Student a FAPE or equitable services and that the relief Parent seeks is reasonable and appropriate.

PROCEDURAL HISTORY

On December 8, 2022, Parent, proceeding pro se, filed a Due Process Complaint (“DPC”) on behalf of Student, pursuant to the Individuals with Disabilities Education Act (“IDEA”). See, 20 U.S.C. 1415(f); New York State Educ. Law § 4404(1).

On February 1, 2023, I was appointed as Impartial Hearing Officer (“IHO”) to determine the claims in the DPC and conduct an impartial hearing pursuant to IDEA and the New York State Education Law § 4404(1).

On February 9, 2023, a settlement and a pre-hearing conference (“PHC”) were held. ^[2] Both the District and the Parent appeared. The Parties confirmed that the only issue unresolved was the rate for the speech therapist. I granted one extension for the parties to continue settlement negotiations. At the same time, I scheduled a Due Process Hearing (“DPH”) for March 9, 2023.

On March 9, 2023, a hearing on the merits was held. At the hearing, the District submitted one exhibit, which was admitted into evidence (Tr. 14-15).^[3] The District did not present any witnesses (Tr. 14). The Parent appeared, waived their right to an attorney, and proceeded pro se (Tr. 5-6). The Parent submitted six exhibits, all of which were admitted into evidence (Tr. 15-23, 39).^[4] The Parent presented themselves as a testimonial witness (Tr. 15-16). A list of the documentary evidence in this proceeding is appended to this Order.

During the hearing, both the District and the Parent made opening statements. The District argued that the relief sought by the Parent, $180.00 per half hour session, was not reasonable and enumerated several factors to consider on the issue of reasonableness (Tr. 24-25). The Parent demanded that the District cover the costs of a speech therapist that was found suitable for the Student, despite the fact the rate was very high, and further claimed that the same rate has been given to the therapist in the past (Tr. 26-27).

The District then proceeded first and elected not to call any witnesses (Tr. 28). Parent presented the notarized affidavit of the SLP, who appeared for cross examination and examination by me (Tr. 40-54). Parent testified through live testimony and was subject to cross examination and examination by me (Tr. 55-86). The District presented a closing statement followed by the Parent (Tr. 86-88).

FINDINGS OF FACT

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

On August 10, 2021, the Committee on Special Education (“CSE”) convened and developed an Individualized Education Services Program (“IESP”) for the Student which recommended individual sessions of SLT, in English, two times per week for 30 minutes per session (Ex. 1 at 1; 10; Tr. 86-87). ^[5]

Student and Parent reside in New York City and Student is attending Private School for the 2022-2023 school year (Ex. IHO-1; Ex. E at 1). Private School is located within the geographic boundaries of the DOE.

With respect to the 2022 – 2023 school year, the District had not implemented the SLT for Student; therefore, Parent had to embark on their own search by contacting speech therapists and staying in contact with the school and other agencies (Tr. 60). At one point, Parent secured a private speech therapist who provided eight sessions to the Student during the month of July 2022 (Ex. F at 1; Tr. 60). Parent believed the therapist would continue working with Student during the 2022 – 2023 school year, however Parent was informed in August that the therapist was not available (Ex. F at 1-2; Tr. 60-61). Parent had to resume her search by contacting the Student’s principal to see if they secured a speech therapist, which they did not (Ex. F at 2; Tr. 61-62). Parent also called 15-20 therapists, contacted three to five agencies in the area, asked for recommendations, and reached out to different schools to inquire if they had a speech therapist who would be willing to come to Student’s school (Ex. F at 2; Tr. 61; 80-84). All of these efforts yielded negative results (Ex. F at 2; Tr. 61; 80-84).

Parent then contacted a well-known and reputable speech therapist in the community (Ex. F at 2; Ex. E at 1; Tr. 62). This individual’s title is “Speech-Language Pathologist” and they have been a certified therapist for approximately 20 years (Tr. 53-54). Upon meeting with the SLP for an evaluation, the Parent was immediately impressed by the SLP’s ability to discern the Student’s needs (Tr. 63). The SLP signed a contract with Parent to provide speech therapy for the school year, starting on September 6, 2022 and ending on June 30, 2023 (Ex. B at 1). The contract further states that the SLP will provide two sessions a week, 30 minutes per session, at a rate of $180.00 per session (Ex. B at 1). Per the SLP’s affidavit, the total estimated amount for the 2022-2023 school year will not exceed $14,760 (Ex. A at 1).

The SLP justifies the rate of $180.00 because their expertise is so “specialized” which includes being bilingual (Tr. 42-44).^[6] The SLP’s specialty areas include “oral-motor” and “speech clarity” (Tr. 46); therefore the SLP focuses upon the Student’s “oral musculature” (Tr. 45). The SLP’s goal is to have the Student speak clearly and articulately so they can progress socially, emotionally, and academically (Tr. 46-47). In addition, while the SLP charges a rate of $180 for a 30-minute session, a session could go as long as 45 minutes (Tr. 50-51). There is also “carryover homework” which is given to the Parent, when the SLP identifies a need for therapy three times a week, instead of twice (Tr. 50-51). The SLP also avails themselves to the Parent during the week for questions (Tr. 50).

The SLP is currently receiving a rate of $180 per half hour session for other students that were sent to the SLP by DOE (Tr. 44; 53). The SLP has appeared on a list of DOE approved speech language therapists and has also been recommended by the DOE in the past to provide SLT (Tr. 44; 53).

Since working with the SLP, the Student has made “remarkable progress” as noted by the Parent, the SLP, the Student’s Teacher and the Student’s Principal. The Teacher, who has known the Student for over four years, wrote a letter detailing the Student’s need for more therapy (Ex. D at 1). The Teacher stressed the impact of SETSS, OT and speech therapy on the Student’s social and academic success (Ex. D at 1). Since the beginning of the school year, the Teacher noted the Student’s progress in their speech and language development (Ex. D at 1). Specifically, the Student sounds more “age appropriate” and exhibits a “boosted self-esteem” (Ex. D at 1). The Principal also wrote a letter describing the Student’s past struggles in the classroom and with their peers (Ex. E at 1). The Principal referred to the SLP as “one of the most reputable speech therapists in our community” (Ex. E at 1). The Principal has already seen “drastic improvements” in the Student’s speech and language development; and noted their “success” across the board socially, emotionally and academically (Ex. E at 1).

After working with the Student for several months, the SLP noted progress in the following areas: using words with the letter “r,” using longer sentences, increasing their vocabulary, and improving their rhythm and intonation skills (Ex. C at 1; Tr. 51).

The Parent also noted many areas of improvement from the beginning. During the initial evaluation of the Student by the SLP, the Parent was given a series of helpful pointers to use with the Student which made the Parent realize that the SLP was “different than anybody else” (Tr. 63). During therapy, the Parent observed the SLP use a massaging technique inside the Student’s mouth which greatly impacted the ability of the Student to articulate their words (Ex. F at 2; Tr. 64). In addition to the “carryover homework,” the Parent described a feeling of empowerment when helping the Student based upon the knowledge they received from the SLP (Tr. 64). The Parent remarked how different the Student’s voice sounds, to the point that family members mistook the Student for an older sibling while talking on the phone (Tr. 64-65).

Parent is legally obligated to pay the SLP, whether or not the money is reimbursed, and has been paying for the sessions since the start of the 2022 – 2023 school year (Tr. 85-86). In the event that the District is held responsible, the Parent has an oral agreement with the SLP that they will be reimbursed by SLP for the sessions already paid (Tr. 85).

In the past, Parent paid a rate of $180.00 an hour for a speech language therapist and previously switched therapists because the Student, according to the Parent, was making “insignificant progress” which they considered “too slow” (Tr. 79-80).

LEGAL STANDARDS AND FRAMEWORK

Burden of Proof

Except in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing. 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).

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 New York 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).

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.

Here, the District failed to provide Student a FAPE or services on an equitable basis for the 2022-2023 school year. The last IESP drafted was August 10, 2021 which lists an annual review date of August 10, 2022 (Ex. 1 at 1). The CSE failed to convene by August 10, 2022, thereby failing to provide Student a FAPE or an equitable basis for services. Moreover, District failed to implement its own recommended services in the IESP, which constituted an independent basis to find that District failed to offer a FAPE or equitable services.

The District does not dispute that the Student needs individual SLT, twice a week for 30-minute sessions (Tr. 86-87). Since the District failed to provide an available therapist, Parent sought the services recommended in the IESP. The District’s attempt to discredit the Parent’s efforts to find a therapist (Tr. 80-82), ignores the fact that the District was required to implement the services. The District had the obligation to provide services to the Student in conformity with the IESP. See Educ. Law § 3602-c(2)(a),(b)(1). In failing to do so, the District failed to provide Student with a FAPE, and with services on an equitable basis, as compared to other students with disabilities attending public or nonpublic school located within the school district.

In addition, the District’s position is controverted by the record. Parent had been attempting to locate a provider from April through June of 2022 (Tr. 81). Parent would contact therapists and be told either their “caseloads are full” or they didn’t work in that neighborhood (Tr. 82). Despite contacting approximately 15-20 therapists, three to five agencies, and two to three different schools, Parent did not receive one offer of assistance (Tr. 82-84). At one point, Parent thought she had secured a therapist for the 2022-2023 school year, only to be told right before the start of the year that the therapist was unavailable (Tr. 60-61; 81; Ex. F at 1-2).

REMEDIES

Compensatory Relief

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).

A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time, and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. See P. v. Newington, 546 F.3d at 123. Compensatory education can serve as a “replacement of educational services the child should have received in the first place,” and any award “should aim to place disabled children in the same position they would have occupied but for the school district’s violations of IDEA[.]” Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that “[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act”).

Compensatory education awards may include payment for out-of-pocket educational expenses incurred by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate remedy. See Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-

79 (7th Cir. 2015). Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers. See Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 (D. Minn. 2022), citing Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2019).

In this case, the District did not carry its burden. As noted above, New York State law places the burden of production and persuasion in this type of case entirely on the District. See N.Y. Educ. Law § 4404(1)(c). The District is, therefore, required to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that Student would have been but for the denial of a FAPE. See Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015); see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005).

The District had an opportunity during the hearing to set forth its position regarding the appropriate compensatory remedy. The District elected not to present any witnesses or documentary evidence to support their position and instead relied upon “cross examination” and “legal principles” (Tr. 28). The only evidence the District proffered was the IESP, dated August 10, 2021, which recommended that the Student receive SLT (Ex. 1 at 10). While these services are not in dispute, there is no evidence to show that the District implemented these services, other than testimony from the Parent that a list of speech-language therapists was provided for the 2022 – 2023 school year (Tr. 78-82). Once the list was received, Parent credibly testified that they used this list for several months to locate a therapist (Tr. 80-84). There is no evidence that District provided any additional assistance to the Parent in locating a SLT. Because the District failed to implement the IESP, by failing to provide the SLT recommended therein, I find that the Student was denied a FAPE or equitable services.

In addition to denying Student a FAPE or equitable services, the District elected to not present evidence of any remedy to address that failure. The District argued that the rate of $180.00 per 30-minute session was unreasonable and that the Parent paid a lower rate of $180.00 per hour in the past (Tr. 87). Without any additional facts regarding the prior provider, including their qualifications and Student progress, I find this argument unpersuasive. The District further argued that the Parent was offered a rate of $175.00 per hour during the settlement negotiations (Tr. 87). As noted earlier, I find this argument to be improper and have given it no weight in my analysis. Having considered all the evidence and testimony presented, I find the District did not meet its burden to prove an appropriate compensatory education remedy. Thus, I find that the SLP should be paid the rate of $180.00, per 30-minute session, two sessions per week, for a period of 36 weeks, for an amount not to exceed $12,960.00. ^[7]

Burlington/Carter Analysis

Although I find that Parent is entitled to the relief requested under a compensatory analysis, given the arguments raised by the District in their closing statement (Tr. 86-87), as well as their cross examination (Tr. 40-45; 78; 80-82; 86), the case should also be reviewed under a Burlington/Carter analysis. Upon review, I come to the same result and find that the rate requested is reasonable.

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.” 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”).

Unlike the parent in Burlington/Carter, here the Parent has paid the provider since the start of the 2022 – 2023 school year, and will continue to pay the provider for SLT in the event that reimbursement is not awarded. Accordingly, a Burlington/Carter analysis is inapplicable in this case. Nonetheless, the District questioned the reasonableness of the SLP’s rates using the factors listed below. Having reviewed these factors, I find that, even under a Burlington/Carter analysis, the requested rate of $180.00, per 30-minute session, two sessions per week, to be reasonable.

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”).

In terms of qualifications, the provider has been a Speech-Language Pathologist for over 20 years and employs highly specialized techniques which have directly benefitted Student (Ex. C at 1; Ex. D at 1; Ex. E at 1; Ex. F at 2; Tr. 42; 44; 53-54). The Student has struggled with speech and language delays for many years, prompting the SLP to focus upon the Student’s “oral musculature” (Tr. 44-45). Using their expertise in “oral motor” skills and “speech clarity” (Tr. 46), the SLP employs a unique technique of inserting their fingers inside the Student’s mouth in order to massage and stimulate the different muscles (Ex. F at 2; Tr. 64). This results in the Student having more control over their mouth and better articulation (Ex. F at 2; Tr. 64). In addition, the SLP explained that the 30-minute sessions are not an accurate reflection of the actual time spent working with the Student, as the sessions could often run longer, up to 45 minutes (Tr. 50-51). Therefore, for at least some sessions, the provider is charging less than the requested rate. The SLP also provides parents with “carryover homework” in cases where the SLP has identified a student who would benefit from therapy three times a week (Tr. 50-51). Here, the Parent corroborated the “carryover” work provided by the SLP and described a sense of empowerment in their ability to better understand the Student’s needs (Tr. 64).

In terms of the Parent’s efforts to locate a DOE-approved provider from a list provided by the District to the Parent, there was credible testimony by the Parent regarding their multiple attempts to find a speech therapist for the 2022-2023 school year (Ex. F at 1-2; Tr. 60-63; 78-85). The Parent worked from April through June contacting multiple sources including two to three schools, three to five agencies and 15-20 therapists (Tr. 80-81; 84). Clearly, the Parent made concerted efforts to locate a speech therapist, when it was not their responsibility, as the District failed to provide a list that yielded results.

In terms of financial obligations, Parent committed themselves financially to pay for the Student’s therapy sessions. Parent signed a contract with SLP to provide speech therapy under the following terms: two sessions a week, 30 minutes per session, rate of $180.00 per session, beginning on September 6, 2022 and ending on June 30, 2023 (Ex. B at 1). The Parent credibly testified that she is currently paying the SLP for each session and that the SLP agreed to reimburse the Parent if the District is ordered to pay for the services (Tr. 85). In the event the District does not have to pay for the sessions, the Parent would still have the financial obligation, stating, “The SLP takes no responsibility if it doesn’t come through. That’s why I’m paying it in full, and I would have to continue to do so if I want to continue with the therapy” (Tr. 86).

Finally, I note that the SRO opinions that examine these cases through the Burlington/Carter lens look to 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 Application of a Student with a Disability, Appeal No. 21-138 (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]). I find that there is no evidence before me regarding notice. Therefore, in light of all the factors described above, I find the rate of $180.00 to be reasonable and further find no reason to reduce the rate.

ORDERS

IT IS HEREBY ORDERED THAT the Department of Education (“DOE”) shall provide funding for Speech-Language Therapy, to be administered by a licensed Speech-Language Pathologist of Parent’s choosing, under the following terms: Two sessions per week, 30 minutes per session, at a rate of $180.00 per session, not to exceed $12,960.00, for the period of September 6, 2022 to June 30, 2023; and it is further

ORDERED THAT the DOE shall provide funding under the following terms: DOE shall reimburse the Parent for any payments made to the Provider listed above, upon proof of such payments for Speech-Language Therapy; and DOE shall provide direct reimbursement to the Provider listed above for any Speech-Language Therapy not yet paid by the Parent, through June 30, 2023; and it is further

ORDERED THAT the DOE shall pay Parent within 15 days of receipt of proof of payment to the Provider listed above for services rendered; 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.

March 23, 2023

Cynthia M. Lindblom

Cynthia M. Lindblom 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

N/A Parent’s Attorney

REDACTED District

REDACTED Rep District

REDACTED Private School

REDACTED Speech-Language Pathologist (“SLP”)

REDACTED Teacher

REDACTED Principal

APPENDIX B- DOCUMENTATION ENTERED INTO EVIDENCE

PARENT EXHIBIT(S)

A. Speech Therapist Affidavit 9/1/22 1 page

B. Speech Therapy Contract 9/4/22 1 page

C. Speech Progress Report 2/22/23 2 pages

D. Letter From Teacher 2/13/23 1 page

E. Letter From Principal 2/21/23 1 page

F. Letter From Parent 2/27/23 2 pages

DOE EXHIBIT(S)

1. Individualized Educational Service Plan 8/10/21 13 pages DOE

IHO EXHIBIT(S)

I. Request For Due Process Proceeding 12/8/2022 3 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.

[2] 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 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.

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

[4] Exhibits A and C were initially admitted into evidence, subject to connection. Once the connection was established, both Exhibits were fully admitted into evidence.

[5] While the IESP also recommended Special Education Teacher Support Services (“SETSS”) and Occupational Therapy (“OT”), these services were not in dispute (Ex. 1 at 10).

[6] Despite being “bilingual certified,” the SLP does not charge a higher rate if a child is bilingual (Tr. 42-44). The rate of $180.00 for a 30-minute session was their “typical rate” and not a specialty rate for being bilingual (Tr. 41- 44). SLP speaks English during their sessions with Student (Tr. 52).

[7] In making this determination, I find that one school year encompasses 180 days of instruction. Thus, one school year would be the equivalent of 36 weeks. I further find that a 10 month school year comprises 36 weeks and the award reflects such.