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Case Number: 593441 – NYC: 243791
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: 12/15/2022
Hearing Requested by: Parent
Date of Hearing: 03/13/2023
Record Close Date: 03/29/2023
Date of Decision: 03/29/2023
NAMES AND TITLES OF PERSONS WHO APPEARED
March 13, 2023:
For the Department of Education:
[REDACTED], Representative
For the Student:
[REDACTED], Representative
[REDACTED], Parent Student
[REDACTED], Agency Director
BACKGROUND
On December 15, 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. 243791, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1415(f)), Section 4404(1) of the New York State Education Law (Education Law), and Section 504 of the Rehabilitation Act. 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 when DOE’s Committee on Special Education created an individualized education plan (IEP) that mandated Special Education Itinerant Teacher (SEIT) services but never provided them.[2] The Parent eventually contracted with a private agency; however, its hourly rate exceeded DOE’s standard scale.[3] The Parent now seeks compensatory services for the missed hours; reimbursement for out-of-pocket costs; and direct funding to the SEIT agency at an enhanced rate for the outstanding hours. [4]
PROCEDURAL HISTORY
I was appointed impartial hearing officer on February [1], 2023, and adjudicated a due process hearing on March 13, 2023. DOE presented no case or evidence and raised no objections to the Parent’s exhibits, 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. DOE classified the Student as a “Preschool Student with a Disability,” 5 and he has been diagnosed with severe Oppositional Defiant Disorder.[6] The Student’s July 25, 2022, IEP mandated 12.[5] hours per week of SEIT services for the 10-month, 2022-2023 school year.[7] DOE administered that service for the first week of September 2022 via a temporary provider.[8] A second provider took over for the remaining weeks of September; however, she could not manage the Student’s behavior.[9] Thereafter, DOE provided no SEIT services.[10] As a result, DOE’s sporadic administration of SEIT services in September 2022, conferred no lasting benefit to the Student.[11] The Parent kept in regular communication with DOE as she tried for months to find a SEIT replacement.[12] Finally, in January of 2023, the Parent contracted with a private agency that charged $150 per hour.[13] At that enhanced rate, the Parent could only afford to retain the agency for six hours per week.[14] The agency also charged $150 per hour for parent-teacher conferences.[15] The service provider who works directly with the Student holds a Master’s Degree in Special Education, Behavior Disorders and a graduate certificate in Applied Behavior Analysis. [16]
ANALYSIS
The IDEA provides that children with disabilities are entitled to a FAPE,[17] which consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive, written IEP.[18] 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.[19] 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.”[20] A procedural violation will constitute a denial of FAPE only if the procedural inadequacies: (a) impeded the child’s right to a FAPE; (b) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE; or (c) caused a deprivation of educational benefits. [21] Here, DOE did not defend at the hearing that the July 25, 2022, IEP offered the Student a FAPE, and DOE provided no evidence to support such a conclusion. Moreover, DOE did not dispute that it failed to provide the SEIT services mandated by the IEP, which is a procedural violation that deprived the Student of educational benefits.[22] As a result, I find that DOE did not provide the Student with a FAPE for the 10-month, 2022-2023 school year.
In addition to presenting no case, DOE did not contest the Parent’s requested relief. The Parent seeks an order that DOE reimburse her for out-of-pocket costs and directly fund the private agency with whom she contracted for the SEIT services. In the absence of any evidence that DOE provided the Student with SEIT services, or that the agency’s rate is unreasonable, I grant the Parent’s relief and order it forthwith. [23]
ORDER
Based upon the above Findings of Fact, it is hereby:
1. ORDERED that the Student is entitled to receive 12.5 weekly hours of Special Education Itinerant Teacher services for the 10-month, 2022-2023 school year.
Because a 10-month school year consists of 180 days, which equates to 36 weeks, the Student is entitled to receive 450 hours of SEIT (36 weeks multiplied by 12.5 hours per week).
2. FURTHER ORDERED that, DOE shall fund the Student’s 450 hours of SEIT services (less any SEIT sessions already provided to the Student by the private agency during the 2022-2023 school year) at a rate not to exceed $150 per hour and shall issue payment directly to the provider of the Parent’s choosing within 30 days of submission of a copy of the invoice. The invoice shall be itemized to reflect the private agency’s administration of SEIT services. Parent-teacher conferences shall not be reimbursed.
3. FURTHER ORDERED that, DOE shall reimburse the Parent for any of the 450 hours of SEIT sessions or portions of sessions for which the Parent paid out of pocket between September 5, 2022, and the date of this Order within 30 days of the Parent’s submission of proof of payment.
4. FURTHER ORDERED that, the Student’s bank of compensatory SEIT services allotted herein shall not expire for two years from the date of this order.
SO ORDERED.
DATED: March 29, 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
None
PARENT EVIDENCE
A. Due Process Complaint 12/15/22 4 pages
B. [REDACTED] Letter 6/27/22 3 pages
C. IEP 7/25/22 13 pages
D. Independent Contractor Agreement for SEIT Service 12/20/22 2 pages
E. Affidavit of [REDACTED] 3/4/23 3 pages
F. Affidavit of [REDACTED] 3/6/23 4 pages
Footnotes
[1] Ex. A.
[2] Id.
[3] Id.
[4] Id. Parent’s counsel withdrew requests for counseling and occupational therapy noted in the DPC.
[5] Ex. C1.
[6] Ex. B1.
[7] Ex. C1.
[8] Ex. F.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Ex. E.
[17] 20 U.S.C. § 1400 (d)(1)(A).
[18] 34 C.F.R. § 300.13.
[19] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[20] 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).
[21] 20 U.S.C. § 1415(f)(3)(E)(ii).
[22] See e.g., Application of a Student with a Disability, Appeal No. 20-141.
[23] I find that the Parent’s Section 504 claim is subsumed by the above IDEA analysis. The Parent did not identify any distinct regulatory requirement under Section 504 that is not subsumed; therefore, I will not separately analyze 504 claims raised in the DPC.