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CASE NUMBER: 595050 – NYC: 244920
FINDINGS OF FACT AND DECISION
Student’s Name: REDACTED
Service District: REDACTED
Impartial Hearing Officer: Ginger James
Date of Filing: January 17, 2023
Hearing Requested by: Parent
Dates of Hearing: April 17, 2023
Record Close Date: June 1, 2023
Date of Decision: August 8, 2023
Time Sensitive: Yes
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 22, 2023
For the Student:
REDACTED, Esq., Parent’s Attorney #1
For the Department of Education:
REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 14, 2023
For the Student:
REDACTED, Esq., Parent’s Attorney #2
For the Department of Education:
REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 4, 2023
For the Student:
REDACTED, Esq., Parent’s Attorney #2
For the Department of Education:
REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 17, 2023
For the Student:
REDACTED, Esq., Parent’s Attorney #2
REDACTED, Parent Student
REDACTED, Occupational Therapist
REDACTED, Administrative Director of Special Education Services at Provider Agency
For the New York City Department of Education: REDACTED, District Representative REDACTED, DOE School Psychologist
BACKGROUND AND POSITIONS OF THE PARTIES
Parent, 1 through counsel, filed a Due Process Complaint (“DPC”) on or about January 17, 2023.
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. On March [1], 2022, in advance of Student’s 5th birthday, the Committee on Special Education (“CSE”) drafted an Individualized Education Services Program (“IESP”) which recommended the following services: Special Education Teacher Support Services (“SETSS”), group service, three periods[2] per week to be administered in REDACTED and Speech Language Therapy (“SLT”) as an individual service, two times per week, and as a group service one time per week, each for 30 minutes, to be administered in REDACTED (“the March 2022 IESP”) (Ex. A-2; Ex. D-10; Ex. E-1; Ex. 4-2). On April 27, 2022, the Committee on Pre-School Education (“CPSE”) drafted an Individualized Education Program (“IEP”) which recommended the following services: Special Education Itinerant Teacher (“SEIT”) Services as an individual service five hours per week to be administered in REDACTED; SLT as an individual service, three times per week, for 30 minutes, to be administered in REDACTED; and Occupational Therapy (“OT”) to be administered in a group up to two, three times per week for 30 minutes, to be administered in English (“the April 2022 IEP”) (Ex. A-2; Ex. B-14; Ex. E-1). Parent alleges that for the 2022-2023 school year, the District, through the CSE, failed to recommend an appropriate placement for Student when it “reduced” the prior recommendation of five hours of SEIT services, which had been provided on an individual basis, to three periods of SETSS, to be provided as a group service (Ex. A-2-3; PHC Tr. 8-10; Tr. #1 55-56, 68-69; Tr. #2 161).[3] Parent further asserts that because the District failed to provide a proper placement, Parent had to “implement the SEIT program independently and seek reimbursement” (Ex. A-3). [4]
Regarding relief, Parent seeks: 1) a finding that the March 2022 IESP constitutes a denial of a FAPE; 2) a finding that the District’s failure to recommend the continuation of the SEIT program is a denial of a FAPE; 3) a finding that the District’s failure to recommend an appropriate placement is a denial of a FAPE; 4) an order that the recommendations contained in the April 2022 IEP continue for the 2022-2023 school year; 5) an order requiring the district to fund compensatory education for any services not provided; 6) an award of attorneys’ fees and expenses; 7) and any other relief that may be just and proper (Ex. A-3-4; Ex. E-3; Tr. #1 69-70; Tr. #2 165). [5], [6]
District Representative contends that the DOE met its Prong One burden because the CSE drafted an appropriate IESP for Student that was reasonably calculated to meet Student’s academic needs and goals (Tr. #2 161).[7] District Representative highlights that the CSE considered professional evaluations and assessments, Student’s then-current performance metrics and the continuum of services available, as well as how to meet Student’s needs in the least restrictive environment (“LRE”) (Tr. #2 153). District Representative maintains that SETSS are appropriate instead of SEIT services and that Student does not require OT (Tr. #2 154-155). District Representative further argues that Parent did not meet their Prong Two burden because Parent failed to provide any proof that Student requires SEIT services or why those services should be provided in an individual, pull-out method (Tr. #2 157-159). Additionally, Parent did not meet their Prong Two burden because it “seemed” that the OT services Parent selected “w[ere] tailored to the time available on the schedule and not really the program of services recommended . . .” especially given that OT Provider did not have access to Student’s IEP, IESP or other documentation containing a formal evaluative process (Tr. # 2 156-157). Finally, the District argues that equities lie in their favor because there is no indication of a contractual or financial obligation between Parent and the providers (Tr. #2 159-161).
I find that the DOE failed to offer Student a FAPE on an equitable basis for the 2022-2023 school year. I further find that the program Parent selected is appropriate and that equities largely lie in Parent’s favor. More specifically, I decline to order SEIT services or to modify the CSE’s SETSS recommendation and am ordering the District to fund SETSS at a “reasonable market rate” for group SETSS, with the rate not to exceed $195 per hour. I decline to modify the CSE’s SLT recommendations and am ordering the District to fund SLT at a “reasonable market rate” not to exceed $195 per hour. For the District’s failure to recommend OT, I am ordering OT as recommended on the April 2022 IEP. I am ordering that the District: 1) provide Parent with RSAs for up to 30 sessions of OT provided by OT Agency; 2) directly fund OT services provided by Provider Agency from the period of January 19, 2023 through the end of the 2022-2023 school year at a “reasonable market rate,” with the rate not to exceed $195 per hour; and 3) fund a bank of compensatory hours for OT services not provided during the 2022-2023 school year. I am basing the hours on a 36-week school year instead of the 40 weeks as requested. I decline to award attorneys’ fees and expenses.
PROCEDURAL HISTORY
As of January 17, 2023, the date of the filing of the DPC, Student was attending “Private School” for their kindergarten year (Ex. J-1, 5). [8]
After the filing, the Resolution Period began. It ended on February 16, 2023, with no meeting held or resolution reached (PHC Tr. #5).
On January 17, 2023, I was appointed Impartial Hearing Officer (“IHO”) for this case.
On February 22, 2023, Parent’s Attorney #1 and District Representative met with an OATH Settlement Officer for a Settlement Conference and thereafter met with me for a Pre-Hearing Conference (“PHC”).[9] At the PHC, the Parties clarified the issues to be addressed, remedies sought, and number of witnesses expected (PHC Tr. 8-13, 15). In addition to addressing concerns about SEIT services versus SETSS and the frequency of the services, Parent’s Attorney #1 stated that OT had been “remov[ed]” by the CSE, and that they needed to “triple check” with their client regarding whether OT services were being provided (PHC Tr. 9-10). I scheduled the Pendency Hearing and the Due Process Hearing (“DPH”) for March 14, 2023 (PHC Tr. 7-8, 14, 15).
On March 14, 2023, Parent’s Attorney #2 and District Representative (“the Parties”) appeared before me for the Pendency Hearing and to discuss rescheduling the DPH (Pend. Tr. 22).[10] I adjourned the DPH to a date to be determined through email to allow the District the opportunity to present its witness (Pend. Tr. 21-22, 23-25, 25-26, 29-30, 39-40), and granted the Parties’ request to extend the compliance date (Pend. Tr. 22, 25, 27-30). I then conducted the Pendency Hearing (Pend. Tr. 30-39).
On April 4, 2023, Parent’s Attorney #2 and District Representative appeared before me for continuation of the Pendency Hearing and commencement of the DPH.[11] Parent’s Attorney #2 confirmed that the scope of the issues for the DPH included the change from SEIT services as an individual service to SETSS as a group service and the “reduction” of services from five to three hours (Tr. #1 55-56, 68-69). They also clarified that the SLT changed from an individual service to be administered three times per week for 30 minutes to two sessions as an individual service and one session as a group service, and that Parent was seeking only individual services (Tr. #1 56, 68-69). Further, Parent’s Attorney #2 sought OT services as provided for in the April 2022 IEP because the CSE did not recommend any OT on the March 2022 IESP (Tr. #1 56-57, 69). District Representative had not been “certain whether there was . . . an assertion on the OT or the slight change in the speech language therapy[,]” and stated they would “attempt to have that testified to” (Tr. #1 57). Parent’s Attorney #2 explained that they were seeking a “reasonable market rate” for the special education services and SLT, but Related Services Authorizations (“RSAs”) for the OT (Tr. #1 57-58, 69-70). Additionally, Parent sought a bank of 45 hours of compensatory OT as Student had only received 30, 30-minute sessions of OT during the course of the year (Tr. #1 57-58, 70).[12] I granted Parent’s Attorney #2’s request to provide disclosure by the end of the week (Tr. #1 60-62, 70-71). District Representative proffered Exhibits 1 through 3 (Tr. #1 61-63). Parent’s Attorney #2 had no objection to any of them, and I admitted the exhibits into evidence (Tr. #1 63-64).[13] District Representative presented an opening statement (Tr. #1 65-68), followed by Parent’s Attorney #2 (Tr. #1 68-70). On April 17, 2023, Parent’s Attorney #2 and District Representative appeared before me for continuation of the DPH. District Representative proffered Exhibit 4, a document containing the proposed direct testimony of DOE School Psychologist, which I admitted after the witness attested to its contents under oath (Tr. #2 81-82, 91-92). Parent’s Attorney #2 submitted Exhibits A through L, which included affidavits by Parent (Ex. E), Administrative Director of Special Education Services at Provider Agency (“Director”) (Ex. F), Financial Officer at Provider Agency (“Financial Officer”) (Ex. G), and Occupational Therapist from OT Agency (Ex. H) (Tr. #2 83-84). District Representative #2 had no objection to any of the exhibits, and I admitted all into evidence (Tr. #2 84-86). DOE School Psychologist testified through the written and live direct testimony (Ex. 6; Tr. #2 93-95), as well as through cross-examination and additional questioning (Tr. #2 95-100, 101-106). District Representative declined to cross-examine Financial Officer (Tr. #2 108). Occupational Therapist testified through affidavit, cross-examination and examination by me (Ex. H; Tr #2 112-121, 121-125), as did Director (Ex. F; Tr. #2 140-142, 142-144, 144-147, 147-151). Parent testified through the written and live direct testimony (Ex. E; Tr. #2 128-139), as well as through cross-examination and examination by me (Tr. #2 130-134, 134-139). District Representative presented a closing statement (Tr. #2 152-161), followed by Parent’s Attorney #2 (Tr. #2 161-164, 165).
FINDINGS OF FACT
After a full review of the record generated at the hearing, I make the following findings of fact and determinations. Unless otherwise noted, I found all witnesses credible.
Student had been identified by the CPSE as a Preschool Student with a Disability (Ex. B-3) and by the CSE as a Student with Speech or Language Impairment (Ex. D-1). Student experiences difficulties in many academic and social emotional areas and requires a lot of extra assistance (Ex. E-1). For example, Student exhibits cognitive weaknesses, poor language skills, attentional struggles, deficient fine motor skills, and sensory processing difficulties (Ex. B-3-5; Ex. D-1-5; Ex. E-3). Student is making progress with SETSS, SLT and OT and requires the supports they provide to continue improving and to remain in a “mainstream placement” (Ex. D-1, 2, 5; Ex. E-1; Ex. F-4; Ex. H-2; Ex. J-1; Ex. J-5; Tr. #2 117-118, 120, 130).
Student and Parent reside in New York City and Student attended Private School for the 2022-2023 school year (Ex. A). Private School is located within the geographic boundaries of the DOE.
The March 2022 IESP
On March 1, 2022, approximately 7 ½ months prior to Student’s [REDACTED] birthday, the CSE convened to determine Student’s eligibility for services through the CSE and, if eligible, to develop an IESP for the 10-month 2022-2023 school year (Ex. D-1, 12).[14] Parent, Related Service Provider/Special Education Teacher and DOE School Psychologist attended the meeting (Ex. D-13; Ex. 4-1). DOE School Psychologist earned a Doctorate in Psychology in 2001 and has been employed by the DOE as a school psychologist for the past four years (Ex. 4-1). Part of their duties include: creating IESPs; holding IESP meetings; conducting evaluations, assessments and observations; reviewing progress reports; and consulting with teachers and other interdisciplinarians (Ex. 4-1). DOE School Psychologist is bilingual (Ex. 4-2; Tr. #2 99).
To prepare for the March 2022 meeting, DOE School Psychologist reviewed Student’s Annual Progress Report and Assessment from Provider Agency, SEIT progress reports, SLT progress reports, an “earlier” OT evaluation, and a psychoeducational evaluation (Ex. 4-1).[15] In making their recommendations, DOE School Psychologist also reviewed initial evaluations that had been conducted in September 2020 and considered Parent’s input (Tr. #2 96). DOE School Psychologist never met Student, observed Student in the classroom or had personal knowledge of Student’s abilities, such as their pre-reading skills (Tr. #2 95, 96). The CSE determined Student’s needs in various areas as explained below.
Psychological testing conducted in September 2020 revealed that Student exhibits relative strength in nonverbal concept formation and relative weakness in verbal development (Ex. D-1). Per the Stanford-Benet Intelligence Scale, Fifth Edition, Student’s overall level of cognitive ability falls in the “Below Average” range, with Full-Scale IQ in the “Below Average” Range, Non-Verbal IQ in the “Average” range and Verbal IQ in the “Borderline Delayed” range (Ex. D-1). Relative weaknesses and delays were exhibited in a few nonverbal tasks (i.e. quantitative concepts) and in all verbal skill tasks (i.e. expressive language) (Ex. D-1). Student also lacks clarity in speech (Ex. D-1). Student is “REDACTED dominant” and per Parent, is “not exposed to much English” (Ex. D-1).
A November 2021 SEIT Progress report documented that Student made much progress in preschool in various areas (Ex. D-1-2). For example, Student learned to match two basic identical items based on appearance, identify basic colors, follow basic one-step directions, identify and count numbers one through four, understand the concept of big and little and identify basic shapes (Ex. D-1-2). Student also enjoyed reading and being read to (Ex. D-2). However, Student was unable to: sort items based on category or function, which hinders their ability to identify similarities and differences and to understand sequencing; make inferences; identify objects that do not belong; recite and identify the alphabet; or match beginning letter sounds (Ex. D-2). Student also did not understand descriptive concepts such as size, color and opposites (Ex. D-2). Regarding math readiness, Student struggled to understand concepts of numbers and size (Ex. D-2).
Student’s speech and language (“S/L”) communication skills are also deficient. Student has difficulty answering “wh-” questions (Ex. D-2). During conversations, they have a hard time staying on topic and often struggle to find the correct word to express themselves clearly and make themself understood to others (Ex. D-2). Per a November 2021 S/L Report, Student made some progress, such as by learning some spatial concepts, identifying articles of clothing, pointing to objects when asked, using words to communicate needs, and understanding basic pronouns (Ex. D-2). Student’s sentence length had “increased significantly,” and they learned to answer questions using a variety of vocabulary words (Ex. D-2). However, Student continues to struggle with comprehending compound sentences, comprehending inclusion/exclusion words, using grammatically correct sentences, and inflecting words (Ex. D-2).
Student exhibits various difficulties with social/emotional/behavioral skill development. Student can adequately play with peers, is interested in trying new activities and games, and appropriately apologizes when prompted or reminded (Ex. D-4). However, Student has limited ability to independently participate in turn-taking or cooperative play games, lacks the ability to ask for assistance when needed, and has difficulty transitioning between activities (Ex. D-4). Parent noted that Student is possessive over belongings and tantrums for up to 50 minutes when Student does not “get [their] way” (Ex. D-4).
Student also experiences attentional, focusing and sensory challenges. Student has limited ability to remain on task during a structured activity, when distractions are present or when encountering difficulty, and has difficulty following and completing a set of instructions without multiple redirections (Ex. D-2, 4, 5). Student struggles to remain focused during a short story and cannot recall the specific order of details, even when prompted (Ex. D-2). Student has difficulty adjusting to changes in classroom routine, transitioning from one classroom task to another, and independently getting from one location in school to another (Ex. D-5). Student has difficulty following a daily schedule and relating time of day to schedule (Ex. D-5). Student has challenges with regaining refocus (Ex. D-5). Finally, Student presents with sensory cravings and struggles with restraining constant motions (Ex. D-4, 5). Student “has a hard time keeping . . . [their] hands to [them]self” and refraining from touching things that should not be touched (Ex. D-5).
As a result, the CSE classified Student as a Student with Speech or Language Impairment and developed an IESP recommending: SETSS to be provided in a group three periods per week to be administered in REDACTED; and SLT to be provided individually two times per week and in a group one time per week each for 30 minutes, each to be administered in REDACTED (Ex. D-10; Ex. 4-1). The CSE also recommended various management needs, including: visual, verbal and tactile prompts and cues; use of picture cards; use of manipulatives; use of verbal reminders and models; praise and encouragement; and behavior management such as a “[r]eward [s]ystem as appropriate” (Ex. D-6; Ex. 4-2). The CSE created eight goals for Student to address various needs, with each goal to be measured frequently (Ex. D-7-9; Ex. 4-2-3). Services were to begin on September 8, 2022 (Ex. D-1).
The March 2022 OT Evaluation On or about February 22, 2022, about one week prior to the March 2022 CSE convening, the CPSE sent Parent a “Notification of Request for a Review of an IEP and Consent for Reevaluation” (Ex. 2-3). The CPSE determined that an OT Evaluation was needed in advance of the IEP review (Ex. 2-2). Parent signed the Consent on March 14, 2022, and on March 22, 2022, Provider Agency Administered the OT Evaluation (Ex. 2-15).
As part of the Evaluation, Student was given the Peabody Developmental Motor Scale II (“PDMS 2”) to assess fine motor skills (Ex. 2-15). Student’s fine motor skills and visual motor skills were -1.8 standard deviations below the mean (Ex. 2-17, 18). Student demonstrated inefficient grasp patterns at times, and exhibited deficiencies in eye-hand coordination and in intra-palmar manipulation (Ex. 2-3, 13, 17, 18). Student had difficulty imitating lines, copying shapes, tracing a line, cutting, folding paper, and lacing a board (Ex. 2-3, 13, 17, 18).
Student’s Sensory profile revealed a -2.0 standard deviation from the mean in sensory processing skills (Ex. 2-18). Student’s demonstrated sensory processing concerns included being distracted, requiring guidance through transitions, being impulsive, grabbing items from people and scribbling on surfaces, charts and paper (Ex. 2-3, 13, 16, 18). Student sought sensory input, including putting inedibles in their mouth and playing with water (Ex. 2-3, 13, 16, 18).
The April 2022 IEP
On April 27, 2022, approximately two months after the CSE met, the CPSE met to determine Student’s continued eligibility for services through the CPSE and to develop an IEP for the 10-month 2022-2023 school year (Ex. B-1, 3).[16] Parent, a Related Service Provider/Special Education Teacher from Provider Agency, Student’s Classroom Teacher from Private School and a CPSE Administrator/District Representative attended the meeting (Ex. B-2). Services were to begin in May 2022, and the projected date of annual review is listed as April 2023. [17]
The CPSE relied upon teacher interviews, classroom observations, and informal assessments of skill performance to draft the IEP (Ex. B-3). The CPSE also relied upon the March 2022 OT Evaluation (Ex. 2).
The CPSE noted that Student is bilingual, REDACTED speaking (Ex. B-3, 4), and determined that Student possessed deficits in cognition and social/emotional behavioral areas, and exhibited delays in expressive and receptive language skills, articulation skills, and focusing skills (Ex. B-3, 4). Parent and Teacher were also concerned about Student’s development in these areas (Ex. B-4). Many of the specific concerns were the same ones the CSE documented. For example, Student’s comprehension, categorizing and sequencing skills are “not age appropriate,” and Student has difficulty identifying actions, expressing themselves and stating how objects “go together” (Ex. B-3). Student demonstrates “moderate levels of performance and needs to develop age appropriate skills” in: sequencing; sorting items by category and function; identifying similarities and differences; understanding position and direction; remaining on task even when distractions are present; refocusing; restraining constant motions; remaining seated; comprehending descriptive concepts such as size, color and opposites; and making inferences (Ex. B-3). Student also exhibited difficulty with transitions, auditory discrimination skills, reciting the alphabet, discriminating between letters and non-letters, identifying objects that do not belong, remembering words correctly, remaining on task for short intervals, and engaging in cooperative play (Ex. B-4, 5). Student’s strengths include matching like items based on appearance, reading and being read to, following teacher’s directions, including one-step directives, identifying and counting items one through four, locating big and little, understanding spatial concepts, understanding basic pronouns, using a variety of vocabulary works when talking and answering questions people ask (Ex. B-4) and trying new activities and apologizing when reminded (Ex. B-5).
The CPSE incorporated the findings of the March 2022 OT Evaluation (Ex. B-4, 5), and noted that Student “would greatly benefit from OT[,] specifically a sensory gym” (Ex. B-5). They further noted that Student exhibits difficulty maintaining attention in the classroom and in therapy, cannot transition back when a task is disrupted and that their attention span is “significantly less than peers [their] age” (Ex. B-5).
The CPSE classified Student as a “Preschool Student with a Disability,” and developed an IEP recommending: SEIT services to be provided individually five hours per week to be administered in REDACTED; SLT to be provided individually three times per week to be administered in REDACTED; and OT to be provided in a group up to two, three times per week for 30 minutes, to be administered in English (Ex. B-14). Management needs included: utilization of an individualized picture schedule; positive reinforcement, guidance and support from a special education teacher; repetition; verbal prompts; a multi-sensory approach to instruction embedded within the classroom routine; and opportunities for 1:1 and small group instruction (Ex. B-6). Of the 13 goals the CPSE drafted, three were OT-related (Ex. B-7-13).
The CSE’s recommendations differed from the CPSE’s recommendations as follows: Student was to receive group SETSS three periods per week instead of individual SEIT services five hours per week; Student was to receive two individual sessions of SLT and one as part of a group instead of all three as individual sessions; and Student would no longer receive any OT (compare Ex. B-14 with Ex. D-10). Parent did not understand why the CSE failed to consider Student’s need for OT services in light of Student’s sensory processing, regulation and focusing issues (Ex. E-2). Parent did not understand why the CSE “decreased” the “Special Education services” or “removed” the OT recommendation (Ex. E-2).
Events Since the Creation of the March 2022 IESP and the April 2022 IEP- Ten Day Notice
On August 25, 2022, Parent, through Parent’s Attorney’s Firm, sent the District a Ten Day Notice (“TDN”) (Ex. C; Ex. E-2).[18] Pursuant to the TDN, Parent was “very concerned that the IEP Team removed the SEIT Program and replaced it with so few periods of SETSS” (Ex. C-2). Parent asserted that it appeared that the CSE “had already made up its mind before the meeting to remove the SEIT program which was being serviced on a one[-]to[-]one basis” (Ex. C-2). Parent “reject[ed] the most recent reduced recommendations,” and concluded that they would place Student in Private School and seek reimbursement or direct funding for the “prior recommended services” (Ex. C-2). The District did not respond (Ex. E-2).
Events Since the Creation of the March 2022 IESP and the April 2022 IEP- Provision of
Services Through Provider Agency The District did not implement any services for Student, and Parent contacted Provider Agency (Ex. E-2). At the time of the DPH, Provider Agency had been administering five hours of “Special Education services” per week and SLT three times per week for 30 minutes (Ex. E-2; Ex. F-3; Ex. G-1; Tr. #2 144).[19] Direct Provider, a supervisor, a classroom teacher, and Parent determined that Student would continue with the five hours because “that’s what everybody felt [Student] needed to be successful in the classroom,” and because the CPSE had recommended five hours (Tr. #2 149, 150). Provider Agency developed a plan for administering services using informal assessments and collaboration to address underlying skills that were missing (Tr. #2 149-150).
All of Student’s “Special Education services” were given at Private School, as a pull-out, 1:1 service (Tr. #2 144, 148; Ex. F-3).[20] The sessions were individualized and “include[d] a great deal of specialized instruction” (Ex. F-3). Student’s “Special Education services” were being administered by Direct Providers #1, #2 and #3 (Ex. F-3). Each Direct Provider is certified to teach students with disabilities (Ex. F-3; Ex. I-1, 2, 3). They are also trained and experienced to teach literacy and comprehension to school-aged children (Ex. F-3). Although all three are bilingual REDACTED providers, only Direct Providers #1 and #3 hold Bilingual Education Extension Certificates (Ex. F-3; Ex. I-1, 2, 3). Educational Supervisor oversaw the providers’ work and assisted with “identifying interventions and goals to address the child’s deficits and attempt to make the child as independent as possible” (Ex. F-3). In addition to providing 1:1 service for Student, Direct Providers #1, #2 and #3 prepared for sessions, created goals, wrote progress reports and met with teachers and parents (Ex. F-3). [21]
Student’s progress was measured through quarterly assessments, meetings between providers and staff, direct observations and daily session notes (Ex. F-4). Student made progress with these services (Ex. F-4).
Director believes Student requires the continuation of the five periods of “Special Education services” on an individual basis given Student’s academic and social delays (Ex. F-4; Tr. #2 143). Specifically, Student does not “pick[] up” all the skills in the classroom, but is capable of learning and retaining skills with the support of the special education teacher or related service provider (Tr. #2 143). Without that support, Student would be “falling seriously behind the class” (Tr. #2 143-144).
Starting on January 19, 2023, an occupational therapist[22] affiliated with Provider Agency began administering OT one time per week for 30 minutes (Ex. E-2; Tr. #2 131, 144-145, 146; Ex. I-5). [23], 24 Provider Agency’s OT impacts Student’s performance in the classroom in various ways. Student is very fidgety, struggles to sit in their seat and attend, and has “sticky fingers” meaning that they touch everything in their vicinity (Tr. #2 142-143). Student requires a lot of grounding and must be taught how to control impulses and to focus (Tr. #2 143). Student’s fine motor skills are also immature (Tr. #143).
Provider Agency charges $195 per hour for SEIT services/SETSS and $225 per hour for related services (Ex. G-1).[25] A portion of the charged rates funds: 1:1 supervision; educational resources and support; professional development and materials; employment taxes; administrative costs; and overhead costs (Ex. G-1).
Parent did not sign a contract with Provider Agency (Tr. #2 136, 137). On April 4, 2023, Parent signed an “Acknowledgment of Liability (Ex. K). The “Acknowledgment of Liability” states, inter alia, that Parent is liable to pay Provider Agency $195 per hour for “Special Education services,” and $225 per hour for SLT and OT services if the IHO “does not issue a ruling for the full amount requested” (Ex. K). It also states that the document is an “enforceable legally binding agreement in the State of New York” (Ex. K). Although the “Acknowledgement” states that Parent knows that the rates charged by Provider Agency are “significantly higher than the standard rate that the [DOE] typically reimburses for said services” (Ex. K; Tr. #2 138), Parent testified that they do not know the “going rate” for services (Tr. #2 138-139). The Acknowledgement is not on any type of letterhead nor is it countersigned by anyone or notarized (Ex. K). Director did not know about this document (Tr. #2 146-147). Prior to the Acknowledgment, Parent understood
24 Director’s direct affidavit testimony fails to mention the provision of OT services (Ex. F). Financial Officer did not testify that Provider Agency administered OT to Student during the 2022-2023 school year (Ex. G). that they were required to pay Provider Agency for services, but could not recall any specifics about those discussions (Tr. #2 137-138).
Events Since the Creation of the March 2022 IESP and the April 2022 IEP- Provision of OT
Services Through OT Agency At the time of the DPH, OT Provider was employed by OT Agency (Ex. H-1). On November 15, 2022, OT Provider began administering OT to Student one time per week for 30 minutes (Ex. E-2; Tr. #2 131; Ex. H-1, 2; Tr. #2 114, 117). The number of sessions was not based upon on any of the informal assessments OT Provider made (Tr. #2 115-116). OT Agency was only able to provide 30 sessions to Student for the 2022-2023 school year because neither OT Provider nor OT Agency could offer additional sessions (Ex. E-2, 3; Tr. 115, 116-117). OT Provider determined that Student would benefit from meeting more than once per week (Tr. #2 116-117).
OT Provider received their Master’s Degree in Applying Occupational Therapy in 2015 and has been licensed in New York State since 2019 (Ex. H-1; Ex. I-4). OT Provider conducts informal evaluations, creates comprehensive goals and treatment plans and carries out those plans (Ex. H-1). OT Provider conducted an informal observation of Student to assess whether Student possessed “significant delays” in graphomotor skills, cutting, coordination and sensory delays (Tr. #2 113). OT Provider was not provided with a preschool IEP or an IESP for Student (Tr. #2 113-114).
OT Provider determined that Student presents delays in graphomotor, fine motor, attention, motor proficiency, sensory processing, self-regulation and visual perceptual skills (Ex. H-2). Specifically, Student possesses “significant delays” in graphomotor skills (Tr. #2 117-118, 120). Student cannot draw or copy basic shapes, print letters or write sentences (Ex. H-2; Tr. #2 120-121). Student’s self-regulation skills are also deficient. Student requires a lot of help regarding sensory input to be able to sit down and engage in tabletop activities (Tr. #2 120). Student seeks proprioceptive input and has a lot of energy that they need to expend (Tr. #2 119). OT assists with self-regulation by assisting the person to get the energy out, such as by providing sensory or proprioceptive input (Tr. #2 123-124). OT Provider had been administering all OT services at OT Agency’s gym (Ex. H-2; Tr. #2 114, 124). The sensory gym has equipment that is not available at Student’s school such as an obstacle course, trampolines, vibrating machines, and swings (Tr. #2 114-115). OT Provider worked with Student on motor proficiency for about 15 minutes per session and on graphomotor skills for about 10 to 15 minutes (Tr. #2 125). The sessions were individualized and “include[d] a great deal of specialized instruction” (Ex. H-2). In addition to providing 1:1 direct service to Student, OT Provider prepared for sessions, recommended supplies and equipment, created goals, wrote progress reports and met with Parent to discuss Student’s functioning and challenges (Ex. H-2). OT Provider also recommended various activities and interventions that Student could do outside of OT sessions to address attentional challenges, such as performing chair pushups and pushing a shopping cart when grocery shopping (Tr. #2 123-124). Student demonstrated progress with those services (Tr. #2 117; Ex. H-2). For example, Student demonstrated improvement in: model proficiency; bilateral integration; navigating a two-step obstacle course; and playing on a trampoline (Tr. #2 117-118). These skills can impact Student’s ability to participate in a classroom because the activities engage the left and right sides of the brain which can then translate into actions, such as cutting a picture or writing, which requires stabilizing the paper with one hand while writing with the other (Tr. #2 118-119). Further, “learning takes place through play” (Tr. #2 118-119). Skills like self-regulation can be taught which, in turn, can prolong time working (Tr. #2 119-120). Each student is different and “therapy requires repetition” (Tr. #2 119). Although Student made progress with OT, OT Provider believes Student’s delays warrant the need for continued services at the recommended amount of three 30-minute sessions per week on an individual basis to address graphomotor skill and self-regulation skills (Ex. H-2; Tr. #2 120). OT provider based this number on their own observations (Tr #2 120). A reduction in OT services might be warranted once Student develops the fundamental skills of drawing basic shapes and printing letters (Tr. #2 120-121). Parent did not sign a contract with OT Agency, and as with Provider Agency, signed an “Acknowledgment of Liability” dated April 4, 2023 (Ex. E-2; Ex. L-1; Tr. #2 135). The Acknowledgement is not on any type of letterhead nor is it countersigned by anyone or notarized (Ex. L). The “Acknowledgment of Liability” states, inter alia, that Parent is liable to pay OT Agency $90 per hour for OT services provided to Student unless the IHO “issues a ruling for the full amount requested or the DOE issues an RSA for the OT that [Student] is receiving” (Ex. L). It also states that the Acknowledgement is an “enforceable legal binding agreement in the State of New York” (Ex. L). Prior to knowing of and signing the Acknowledgment, Parent understood that they were required to pay OT Agency for services, but could not recall any specifics about those discussions (Tr. #2 137-138). OT Agency can be paid though RSAs or direct payment from Parent (Ex. E-2).
Parent requires direct funding for all services because it would be an “extreme financial hardship” for them to pay for the services, requiring them to seek “outside financial assistance” to pay for them (Ex. E-2; Tr. #2 134).
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 NYS 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-of-pocket educational expenses). Accordingly, I first must determine whether the District met its burden to demonstrate that its offered program was reasonably calculated and implemented to provide this Student with educational benefits.
Overview- The CSE’s Recommendations versus the CPSE’s Recommendations
At the outset, and contrary to Parent’s Attorneys’ assertions, I find that the CSE did not alter, reduce or eliminate any services to Student (Ex. A-2; PHC Tr. 10; Tr. #1 69; Tr. #2 161). Generally, the CPSE and the CSE are each entrusted to evaluate students, determine if those students are entitled to special education and/or related services, and if so entitled, to draft IEPs or IESPs that are reasonably calculated to enable those students to make progress appropriate in light of their circumstances. They are two different bodies that evaluate students using different models. Theoretically, the CPSE operates on a “medical model” or a “global intervention model” where they can target all aspects of development, whereas the CSE operates on an “educational model” (Tr. #2 97, 99, 104-105). “Medical model,” per DOE School Psychologist, refers to “developmentally, what the child might need . . . to get them to developmental milestones . . .” (Tr. #2 106). By contrast, the “educational model” looks at whether the student is learning, whether they can they keep up with their peers, and whether they can they work to grade level (Tr. #2 106). As DOE School Psychologist explained, a parent may want their child’s speech to be clearer (Tr. #2 106). If the student can perform at grade level, “speech therapy is not warranted because that would actually remove them from the educational setting, and they might miss instruction versus really benefit from that enhanced or additional service” (Tr. #2 106).
Regarding the difference between the CPSE’s and the CSE’s recommendations, DOE School Psychologist was not present for the April 27, 2022 IEP meeting with the CPSE and could not speak to what was discussed (Tr. #2 97). The CSE bases their decisions on how a student’s skills and capacities impact their education and performance in a classroom (Tr. #2 97), to ensure a student can “really learn those academic concepts that they’re missing at the time of the . . . meeting (Tr. #2 105). The “key feature is, does the child present with an area of need that is impacting their learning?” (Tr. #2 105).
Given the different perspectives, the two bodies may offer different recommendations even if, as happened here, those bodies meet close in time to each other and review the same or similar information. Those recommendations may result in an effective change or reduction (or even an increase) in special education and related services. I do find that, effectively, Student’s special education and related services were changed from a total of 8 hours to 4½ hours, which is a significant change. However, the CSE did not modify or reduce the CPSE’s recommendations. Ultimately, in this matter, the District bears the burden to prove that the CSE created an appropriate IESP for Student– not appropriate based upon a comparison with the CPSE’s IEP. [26]
Overview- Creation of the March 2022 IESP
The District maintains that the March 2022 IESP was proper because DOE School Psychologist based their recommendation on professional evaluations, “the full suite of services that can be offered by the DOE,” and on Student’s “performance metrics that were measurable and aligned to be in the least restrictive environment for [Student] to make progress” (Tr. #2 153). “The real question,” they assert, is how to “counterbalance” the services to be offered with the LRE (Tr. #2 153).
DOE School Psychologist determined that the IESP was appropriate because it contained Student’s then-current levels of performance as well as Student’s social/emotional/behavioral and academic strengths and challenges and provided goals designed to meet those needs in the LRE (Ex. 4-2, 3). DOE School Psychologist is a bilingual psychologist and specifically considered that Student is bilingual and “hasn’t had formalized instruction in English” (Ex. 4-2; Tr. #2 99; Ex. D-1). Per Parent, Student is “not exposed to much English” (Ex. D-1). DOE School Psychologist needed to be “very cautious” to ensure there was no “overshoot of classification of a disability” (Tr. #2 99). They determined that Student primarily had “really more of a language deficit,” for which speech therapy had been recommended (Tr. #2 99).
The CSE’s Decision Not to Recommend OT
I find that the District failed to provide Student with a FAPE when it failed to recommend OT to Student for the 2022-2023 school year. Specifically, I find that the CSE did not rely upon sufficient evaluative data to determine Student’s OT needs, and because the District relied upon insufficient evaluative data, it could not draft a proper, comprehensive statement of Student’s present levels of academic achievement and functional performance (“PLAAFP”). Therefore, the CSE’s ultimate recommendations did not address all of Student’s needs. Further, I find that DOE School Psychologist did not provide sufficient reasoning for failing to recommend any OT to Student in light of documented OT-related issues. Accordingly I find that Student is entitled to the OT services as recommended in the April 2022 IEP.
Parent’s Attorney #2 argues that the CSE “reduced the services without conducting any new evaluations” and that the evaluations relied upon were conducted in 2020 and relied upon by the CPSE when they “recommended the original services” (Tr. #2 161).[27] That claim fails to appreciate the difference between the two models at issue here, and makes an unwarranted comparison. It also fails to appreciate what is required to develop an appropriate IESP. That the evaluations were conducted in 2020 does not necessarily make them “invalid,” particularly if there is sufficient evaluative data available to the CSE. However, such was not the case here.
To prepare for the March 2022 meeting, DOE School Psychologist reviewed: 1) Student’s Annual Progress Report and Assessment from Provider Agency; 2) SEIT progress reports; 3) SLT progress reports; 4) an OT evaluation; 5) other evaluations, including those that had been conducted in September 2020; and 6) information provided by Parent (Ex. 4-1; Tr. #2 96). The District did not provide the older evaluations, including the OT evaluation.
The District was required to ensure they reviewed sufficient evaluative data to determine Student’s needs, including their OT needs. This data is often derived from evaluations. The District must conduct an evaluation whenever the Student’s educational or related services warrant a reevaluation or if the student's parent or teacher requests a reevaluation. See 34 CFR § 300.303(a)(2); 8 NYCRR § 200.4(b)(4). Additionally, the CSE may order additional evaluations or assessments to ensure a student is assessed in all areas related to their suspected disabilities. See 8 NYCRR § 200.4(b)(3). The evaluations themselves must include: using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information” (20 U.S.C. § 1414[b][2][A]); using “technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors” (20 U.S.C. § 1414[b][2][C]); and assessing the child “in all areas of suspected disability,” including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR § 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR §300.304[c][6]; 8 NYCRR § 200.4[b][6][ix]). A reevaluation of a student with a disability must be conducted by a multidisciplinary team or group that includes at least one teacher or specialist with knowledge in the area of the student's disability. See 8 NYCRR § 200.4(b)(4). Further, the reevaluation must be "sufficient to determine the student's individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student's continuing eligibility for special education." 8 NYCRR § 200.4(b)(5). This data is required so that the District can develop an appropriate PLAAFP, which must be tailored to the student, address how the Student’s disability affects their involvement and progress in the general education curriculum, and be reasonably specific and understandable. See 8 NYCRR § 200.4(d)(2); 34 C.F.R. § 300.320(a)(1); 34 C.F.R. § 300.324(a). See also Letter to New, 211 IDELR 464 (OSEP 1987).
DOE School Psychologist testified that they did not recommend OT services because a review of preschool documents and the initial OT evaluation did not support such a recommendation (Tr. #2 93). Specifically, DOE School Psychologist believed there was “reference to typical performance” in the original evaluation (Tr. #2 93-94, 104). Further, previous psychological testing revealed that Student’s visual spatial processing was in the “Average” range (Tr. #2 104). DOE School Psychologist explained that the CSE looks at how the needs “impact performance in the classroom, and there was just no evidence that there would be a need for occupational therapy” (Tr. #2 93, 103-104).
However, according to the CPSE’s IEP, which almost verbatim copied Provider Agency’s November 2021 SEIT Report, Student experiences attentional, focusing and sensory challenges which hampers their ability to complete work (Ex. D-2-5). Student has limited ability to remain on task during a structured activity, when distractions are present or when encountering difficulty, and struggles to follow and complete a set of instructions without multiple redirections (Ex. D-2, 4, 5; Ex. 3-2, 3). Student cannot remain focused during a short story and cannot recall the specific order of details, even when prompted (Ex. D-2), and it is hard for them to regain refocus (Ex. D-4, 5). Additionally, Student has difficulty adjusting to changes in classroom routine, transitioning from one classroom task to another, and independently getting from one location in school to another (Ex. D-5). Student’s challenges also include following a daily schedule and relating time of day to a schedule (Ex. D-5). Moreover, Student presents with sensory cravings as demonstrated by leaving the classroom to play with water and constantly chewing on inedible objects (Ex. D-4, 5). Student exhibits “constant motions,” such as squirming in their seat, fidgeting with their fingers or touching things (Ex. D-4, 5; Ex. 3-2, 3). Student “has a hard time keeping . . . [their] hands to [them]self” and refraining from touching things that should not be touched (Ex. D-5; Ex. 3-3). [28] Notably, the CSE failed to document any information regarding Student’s gross or fine motor skills (Ex. D).
Per the CSE’s IESP, and as reflected in the Progress Report, “[Student’s] preschool providers discussed with [Parent] that [Student] may benefit from attending a sensory gym to improve sensory processing and social emotional limitations” (Ex. D-5; Ex. 3-3). What the CSE omitted from their recitation of the Progress Report was that the provider further noted that a “[a]n evaluation/service for OT is recommended for Student” (Ex. 3-3).
I find that the record is devoid of the findings of the older OT evaluation, save for DOE School Psychologist’s testimony that they believed that there was “reference to typical performance” (Tr. #2 93-94, 104). There simply is no direct reference to that evaluation in the March 2022 IESP and no documentation as to whether Student exhibited the same challenges and deficiencies as documented by Provider Agency and Parent at the time the CPSE convened a few weeks after the CSE had (Ex. D). I further find that DOE School Psychologist made the recommendation for no OT services despite being aware of the recommendation for a reevaluation (Tr. #2 93; Ex. 3-3), and also find that DOE School Psychologist reviewed the recent OT evaluation after drafting the March 2022 IESP, and still determined that “there was nothing in that evaluation that caused the psychologist to change their opinion” (Tr. #2 94-95, 98). Nonetheless, I find that an OT reevaluation was needed. [29]
Even if a new evaluation had not been warranted, I find that the District failed to adequately explain why Student did not require OT services in light of the documented OT-related challenges. For example, DOE School Psychologist explained that behaviors Parent was concerned about, such as Student being possessive over belongings and engaging in tantrums, would not be addressed by OT (Tr. #2 102-103). Those behaviors would primarily be addressed through a classroom management plan (Tr. #2 103). The Psychologist did explain that an OT provider would address visual spatial processing, fine motor skills, such as prewriting and writing skills, and problem solving and how those skills impact performance in the classroom (Tr. #3 103).
Moreover, per DOE School Psychologist, although an OT provider could address Student’s focusing issues, “a student would not require OT “just because of an inability to focus” (Tr. #2 103). A teacher or S/L provider could address focusing issues (Tr. #2). However, I find that Student possesses more than an inability to focus and, in the context of an educational model, that Student’s OT-related challenges affect their ability to learn. I further find that in addition to not recommending any OT services, the CSE did not sufficiently address Student’s OT-related needs in another manner, such as through the goals and management needs it recommended (Ex. D-6-9). Although there are goals related to focusing, none of the goals or needs address Student’s sensory cravings (including mouthing inedibles, leaving the classroom to play with water, or touching things), constant motions, or transitioning difficulties. There is no documented discussion of Student’s motor skills, and there are no goals related to Student’s motor skills.
Finally, I acknowledge that the District has an obligation to provide services in the LRE and appreciate DOE School Psychologist’s reasoning that it would be better to give Student experience in and exposure to a structured classroom setting, and to try some educational models and interventions and instructional strategies before adding another service that “potentially could pull [Student] out of an educational environment” (Tr. #2 144). Per DOE School Psychologist, Parent did not express many concerns in this area and said they would try sensory gyms in the community and monitor Student’s progress (Tr. #2 93). Additionally, Parent indicated that Student demonstrated some improvements (Tr. #2 104). Per DOE School Psychologist, OT services were “mentioned as a service for [Parent] to keep in mind should [Student] continue to display these behaviors” (Ex. D-5). However, in light of Student’s substantial OT needs, I find that Student requires OT services.
The CSE’s Recommendation of SETSS Instead of SEIT Services
I find Parent’s Attorneys’ arguments regarding SEIT services versus SETSS unavailing in this matter, and further find that SETSS is appropriate. In their DPC, Parent’s Attorney’s Firm asserts that “[Student] has been making progress utilizing the SEIT program and requires either a continuation of the broader SEIT program or an appropriate placement in a hybrid special education/general education program” and that “SETSS is a more limited service that does not address the broader organizational, executive functioning, social skills” that Student requires to meet their goals (Ex. A-2). First, SEIT services are generally reserved for preschool students with disabilities (see Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]) (Ex. 4-3). Second, I find that the District has proven why SETSS are appropriate in this matter and not SEIT services. Third, I find that Provider Agency is not necessarily administering SEIT services, but rather is administering “Special Education services” in accordance with Student’s needs as determined by Provider Agency. According to DOE School Psychologist, SEIT “is a service recommended for pre-school age children,” which, “by its nature,” is “an individualized service which is both very intense and very restrictive” (Ex. 4-3). The SEIT Provider works closely with the pre-school student on academic, emotional and social skills in preparation for a student’s school age classroom setting (Ex. 4-3). DOE School Psychologist maintained that individualized special education services, are “highly restrictive,” and therefore, it is “a rarity . . . that a child needs that, such an intense educational support service” (Tr. #2 105). By contrast, SETSS are “specially designed and/or supplemental instruction provided by a special education teacher” (Ex. 4-3). SETSS are usually provided in a group setting (Ex. 4-3; Tr. #2 105), and are provided to school-aged children because they learn from their peers who serve as role models (Tr. #2 99). They are “more interactive, less restrictive, and involve[] peer modeling in a group setting to help reinforce the instruction” (Ex. 4-3; Tr. #2 105).
Director of Provider Agency testified that “[t]here might be” a difference between SEIT and SETSS (Tr. #2 147-148), and that the Agency offers SEIT services for preschool children ages three through five (Tr. #2 151). However, when children are “under [the] CSE,” Provider Agency does not “really differentiate whether it’s SEIT or SETSS” and does not call the services one or the other (Tr. #2 151). They focus on the student’s academic needs and the “special education services that are being provided” (Tr. #2 151). Per Director, when a child is in kindergarten “the social is so much part of the learning . . . [and] [y]ou can’t really differentiate [between SEIT and SETSS]” (Tr. #2 148). They are not strictly learning letters and reading and math all day, but are engaged in cooperative learning and imaginative play, working in groups, and building on language skills (Tr. #2 148). Notably, despite recognizing the importance of a collaborative learning process (Tr. #2 148), Provider Agency offers individual services to students older than five years of age (Tr. #2 151).
I find that Student is older than [REDACTED] and in kindergarten and, statutorily, is not entitled to SEIT services. I also find that SETSS are appropriate for Student to achieve academic growth and to meet the goals developed for Student. Both DOE School Psychologist and Director explained that working with others is crucial to Student’s educational development. Accordingly, I find that the District appropriately recommended SETSS for Student instead of SEIT services.
Finally, given the importance of collaborative learning, as testified to by each witness, I find the recommendation of group SETSS appropriate.
The CSE’s Recommendation of Three Hours of SETSS
Regarding the number of SETSS hours Student is to receive, in light of my order that OT services be provided, and in combination with the SLT, I do not find it necessary to amend the SETSS recommendation (Ex. 6-2; Tr. #3 35, 39, 51, 52-53; Ex. D-6).
DOE School Psychologist specifically determined by progress reports and Parent’s report of Student’s abilities that Student’s “deficit[s] [are] not significant” (Tr. #2 100). DOE School Psychologist was also concerned about ensuring Student received services in the LRE (Tr. #2 99). Based upon Student’s capabilities, their bilingualism, and lack of exposure to English instruction, they recommended SETSS three times per week and SLT (Tr. #2 99-100).
Unlike my finding regarding OT services, I find that the District had sufficient evaluative data upon which to make its SETSS recommendations, including the various reports, evaluations and input from Parent (Ex. 4-1; Tr. #2 96). I further find that the data enabled the CSE to draft an accurate PLAAFPs statement as it related to Student’s need for SETSS. Psychological testing conducted in September 2020 revealed that Student exhibits relative strength in nonverbal concept formation and relative weakness in verbal development (Ex. D-1; Ex. 4-2). Per the Stanford-Benet Intelligence Scale, Fifth Edition, Student’s overall level of cognitive ability falls in the “Below Average” range, with Full-Scale IQ in the “Below Average” Range, Non-Verbal IQ in the “Average” range and Verbal IQ in the “Borderline Delayed” range (Ex. D-1). Relative weaknesses and delays were exhibited in a few nonverbal tasks (i.e. quantitative concepts) and in all verbal skill tasks (i.e. expressive language) (Ex. D-1; Ex. 4-2). DOE School Psychologist specifically determined that the Psychoeducational Evaluation, as well as the social history update and an education report “provided a clear understanding of student’s current academic and functional levels” (Ex. 4-2).
Student “demonstrated pre-academic skills as expected” (Ex. 4-2). For example, Student could match two basic identical items based on appearance, identify basic colors, follow basic one-step directions, identify and count numbers one through four, understand the concept of big and little, identify basic shapes, and label items, pictures and body parts (Ex. D-1-2; Ex. 4-2).
The CSE determined that Student “did refuse to participate in some activities or failed to follow instruction and has a deficit in higher-level language skills needed to describe actions and concepts” (Ex. 4-2). Nonetheless, they determined that Student requires assistance because Student is still unable to: sort items based on category or function, which hinders their ability to identify similarities and differences and to understand sequencing; make inferences; identify objects that do not belong; recite and identify the alphabet; or match beginning letter sounds (Ex. D-2). Student also does not understand descriptive concepts such as size, color and opposites and struggles to understand concepts of number and size (Ex. D-2). Further, Student exhibits various difficulties with social/emotional/behavioral skill development. For example, Student has limited ability to independently participate in turn-taking or cooperative play games, lacks the ability to ask for assistance when needed, and has difficulty transitioning between activities (Ex. D-4). As noted, Student also experiences significant attentional, focusing and sensory challenges (Ex. D-2, 4, 5).
In determining that these needs could be met with three hours of group SETSS, the CSE created numerous goals to address the noted concerns (Ex. D-7-10). These included: matching, sorting and naming items based on category; sequencing; engaging in cooperative play; and increasing attention span (Ex. D-7-10). The CSE further recommended various management needs, including: visual, verbal and tactile prompts and cues; use of picture cards and manipulatives; verbal reminders and models; praise and encouragement; and a reward system as appropriate (Ex. D-6). I find these goals and management needs are specifically tailored to meet Student’s needs and that the recommended SETSS are sufficient. I recognize that Direct Provider, supervisor, classroom teacher, and Parent determined that Student would continue with the five hours because “that’s what everybody felt [Student] needed to be successful in the classroom” (Tr. #2 149, 150). However, I find their reasoning circular and unpersuasive. Provider Agency’s plan was based on informal assessments, collaboration and addressing underlying skills that were missing (Tr. #2 149). As Director explained, the CPSE had recommended that Student continue with five hours which was based on the feedback from the team working with Student and the team was “in agreement” that the five hours should continue (Tr. #2 150). As already noted, the CPSE’s recommendations are made for different reasons. Further, it was Provider Agency’s team that made the recommendation to the CPSE so it would follow that they would want to continue with that recommendation.
I find that with the addition of OT services to address the focusing, attentional and other issues, and the SLT services, three hours of SETSS is appropriate
The CSE’s SLT Recommendation Parent also challenges the CSE’s decision to recommend two sessions of SLT as an individual service and one session of SLT as a group service, given that the CPSE recommended three sessions of SLT each as an individual service (Tr. #1 68-69). Although I find that the burden rests squarely on the District to prove that it made a proper SLT recommendation, I note that Parent presented no reason for challenging the recommendation other than to say that Parent was seeking only individual services (Tr. #1 56, 68-69).
I find that the District’s SLT recommendations are proper. In particular, I note that as a bilingual DOE Psychologist, they specifically considered Student’s bilingualism and lack of exposure to English (Ex. 4-2; Tr. #2 99; Ex. D-1) in determining that Student primarily has “really more of a language deficit” (Tr. #2 99). They also recognized that Student lacks clarity in speech (Ex. D-1), and that Student exhibits expressive language delays and receptive language deficits (Ex. J-5, 6). Further, DOE School Psychologist expressed concern about providing services to Student in the LRE and about providing services in a way that allows Student to interact with others (see generally Ex. 4-2, 3; Tr. #2 99, 105). Given the restrictive nature of individualized services, and recognizing that a group SLT can foster Student’s communications skills through interaction and peer modeling, I find the District’s SLT recommendation appropriate and decline to modify it.
The District’s Failure to Implement Services
In addition to finding that the March 2022 IESP program, in part, did not provide Student a FAPE on an equitable basis for the 2022-2023 school year, I find that the District’s failure to implement any services deprived Student of a FAPE on an equitable basis for the 2022-2023 school year. It is undisputed that the DOE failed to provide any of the services pursuant to either the March 2022 IESP or the April 2022 IEP. The District, which bears the burden of proof, failed to put forth any evidence or witnesses regarding implementation. Accordingly, although the District did not concede that it failed to provide Student a FAPE for the 2022-2023 school year, I find that the District failed to meet its burden.
The District provided no special education or related services at any time after the March 2022 IESP was drafted, and Parent sought the services recommended in the earlier IEP. 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 remain in a “mainstream placement” (Ex. E-1). Student is making progress with SETSS, SLT and OT and requires the supports they provide to continue improving and to remain in a “mainstream placement” (Ex. D-1, 2, 5; Ex. E-1; Ex. F-4; Ex. H-2; Ex. J-1, 5; Tr. #2 117-118, 120, 130).
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 Student in conformity with the IESP. See Educ. Law§ 3602-c(2)(a), (b)(l). By not doing so, the DOE failed to provide 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.
Appropriateness of Parentally Selected Services
Before proceeding to the remedies, I must address the District’s claims that Parent has not met their burden to prove the appropriateness of the services and how they are reasonably calculated to meet Student’s needs (Tr. #2 161). Specifically, District Representative contends that Parent failed to prove why Student requires five hours of special education services as a pull-out, individual service and the nature of the service actually being provided (Tr. #2 157-159). Regarding OT, District Representative maintains that it appeared to be tailored to the time available on the schedule and not really to Student’s needs, especially given that OT Provider did not have access to the IEP, IESP or other documentation containing a formal evaluative process (Tr. #2 156-157). Further, there was no indication that the “extra period” of services that began in mid-January “did any more for Student’s development” (Tr. #2 157). Initially, as I have determined that the District failed to implement the services it recommended in the March 2022 IESP, I find that Parent was left with no option but to secure all services for Student. I further find that the services Parent selected are appropriate. Among the considerations in determining whether a private placement selected by a parent is appropriate are whether the placement is likely to produce progress, not regression. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir 2017), quoting Walczak, 142 F.3d at 130. Moreover, No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specifically designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364-365 (2d. Cir 2006). A similar analysis lends itself to a case like this, where a parent selects services for their child after the District fails to implement the current IEP or IESP.
Parent submitted a Progress Report from one of Student’s “Special Education services” providers dated January 16, 2023, which documents Student’s then-present level of functioning and delineates Student’s relative strengths and weaknesses (Ex. J-1-4). I find that the detailed report demonstrates that Direct Providers have identified multiple specific needs in areas including cognition, attention/focusing, receptive and expressive language skills, social/emotional behavioral skills, reading readiness and math readiness (Ex. J-1-3). Direct Providers also described various modes of intervention to help Student, such as providing sensory input, providing individual instruction, breaking down activities, giving supplemental instruction, monitoring distractions, modeling, using language cards, manipulatives and counters, game playing and reinforcement (Ex. J-1-3).
I also find that Student is making progress with the special education services Provider Agency is administering. For example, Student can now match like items based on appearance and function, select which item is different from a group, sort items and sequence events (Ex. J-1). Student also understands descriptive concepts such as size, color, and opposites, and understands inhibitory words (Ex. J-1).
Parent submitted a SLT Progress Report dated February 1, 2023 which documents Student’s thenpresent level of functioning and delineates Student’s relative strengths and weaknesses (Ex. J-4-5). I find that the detailed report demonstrates that Speech Language Therapist has identified Student’s specific S/L needs, particularly in expressive language skills (Ex. J-5-6). Student continues to struggle with using a wide variety of words, using nouns and verbs correctly, and answering simple questions (Ex. J-5, 6). Therapist intends to use various modes of intervention to help Student, including games, books, worksheets, modeling and prompting (Ex. J-6).
Regarding the OT services, I find that after conducting an informal observation of Student, OT Provider determined that Student presents delays in graphomotor, fine motor, attention, motor proficiency, sensory processing, self-regulation and visual perceptual skills (Ex. H-2; Tr. #2 113, 120, 121). OT Provider identified “significant delays” in graphomotor skills (Tr. #2 117-118, 120) as demonstrated by Student’s inability to draw or copy basic shapes, print letters or write sentences (Ex. H-2; Tr. #2 120-121). Student’s self-regulation skills are also deficient (Tr. #2 121-122), and Student requires a lot of help regarding sensory input and proprioceptive input and has a lot of energy that they need to expend (Tr. #2 119, 120).
OT Provider had been administering all OT services at OT Agency’s gym (Ex. H-2; Tr. #2 114, 124), addressing motor proficiency for about 15 minutes per session and graphomotor skills for about 10 to 15 minutes per session (Tr. #2 125). OT Provider used a variety of techniques with Student and suggested techniques for outside of the sessions, such as taking breaks, attaching a bouncy band to a chair, performing chair pushups, pressing their hands together, lifting groceries and pushing a shopping cart (Tr. #2 123-124).
I find that Student demonstrated progress with those services (Tr. #2 117; Ex. H-2). For example, Student demonstrated improvement in: model proficiency; bilateral integration; navigating a twostep obstacle course; playing on a trampoline; and catching a ball from six to eight feet (Tr. #2 117-118).
Similarly, although at the time of the DPH, Provider Agency had not been administering OT services for very long, Director testified that Student required OT because Student is very fidgety, struggles to sit in their seat and attend, and has “sticky fingers” meaning that they touch everything in their vicinity, and that these struggles interfere with Student’s learning (Tr. #2 142-143). Like OT Provider, they determined that Student’s fine motor skills are immature (Tr. #143).
I find District Representative’s assertions that OT appeared to be tailored to the time available on the schedule and not really Student’s needs (Tr. #2 156-157), and that there was no indication that the “extra period” of services that began in mid-January “did any more for Student’s development” (Tr. #2 157), unavailing. The CSE failed to properly identify Student’s OT needs and therefore failed to offer Student any OT services. As explained, OT Provider and Provider Agency each identified Student’s OT needs and developed programs specially tailored to meet those needs. As to the actual provision of services, I find that Parent testified credibly that they had placed Student on a waitlist for services at the start of the school year (Tr. #2 130-132), and that OT Provider testified credibly that they would have provided additional services if they could have because Student requires them (Tr. #2 120-121).
In sum, I find baseless the District’s assertions that Parent did not prove the appropriateness of the services being administered by Provider Agency or OT Provider.
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. See 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 Bd. of Educ., 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 paid directly 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”). 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 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 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]). Equitable Considerations- District’s and Parent’s Arguments District Representative maintains that equities lie with the District because Parent did not seem to know how the services were being administered (Tr. #2 159), and because there is no indication of a contractual obligation between Parent and either agency (Tr. #2 161). District Representative highlights that Parent could not recall the rates for the various services (Tr. #2 160), and because Parent did not produce a contract, “we are not aware of exactly what financial obligation there is” (Tr. #2 159). Finally, District Representative questions whether the “Acknowledgement of Liability” is enforceable given that it is one-sided and created after services were delivered (Tr. #2 160-161). The District did not contest the reasonableness of the rates for any of the services.
Parent’s Attorney #2 contends that “in regards to [sic] the contracts, under the [S]tatute of [F]rauds, contracts for services need not be put down in writing in order to be enforceable” (Tr. #2 163). “The acknowledgments of liability are just memorializing the agreement, but they are not the contracts themselves” (Tr. #2 163-164). As a threshold matter, I must determine whether Parent is obligated to pay for any of the services being administered by either Agency.
Equitable Considerations- Existence of Parent’s Obligation to Pay Provider Agency for SETSS, SLT and OT While acknowledging that Parent is not required to produce a physical contract, but rather is required to produce proof of their legal obligation to pay Provider Agency for SETSS, SLT and OT in order to receive direct funding for those services, I note that a physical contract would be the “best evidence” of Parent’s obligation.
I am troubled by the lack of a physical contract in this matter. Parent seeks direct funding of a contract worth approximately $49,837.50.[30] In addition, I would have expected two contracts to have been produced. Provider Agency began administering “Special Education services” and SLT on September 8, 2022, and began administering OT on January 19, 2023 (Ex. E-2; Tr. #2 131).[31] I would have expected to see a signed contract regarding the “Special education services” and SLT, and then either another signed contract or some type of addendum reflecting Parent’s obligation to pay for OT services.
I am also troubled by the conflicting testimony regarding the existence of a contract– testimony that not only differs between witnesses, but also internally. Parent testified through their written testimony that they signed a contract obligating them “for these services in the event that the DOE does not pay the Agency for services provided” (Ex. E-2). However, Parent definitively testified through live testimony that they did not have to sign a contract with Provider Agency (Tr. #2 136, 137).
Testimony from other witnesses sheds no more light on whether Parent signed a contract with Provider Agency. Director did not mention anything about contracts or rates in their written, direct testimony (Ex. F). Director’s written testimony does not even mention the provision of SLT or OT services (Ex. F). [32], 33 In their live testimony, Director testified that parents are “typically” required to sign a contract with Provider Agency and that the contracts are “typically” signed in the summer (Tr. #2 145). Director testified that Parent signed a contract for services (Tr. #2 145). Yet, when asked follow-up questions, Director stated that because they did not have the contract “in front of [them],” they did not know “exactly what was in that contract” (Tr. #2 145-146). They also did not know the fees for services because they “deal with the clinical piece and not the fiscal
33 Although Parent’s Attorney #2 conducted supplemental direct testimony at the DPH, Parent’s Attorney solely asked about the impact of the OT being provided on Student’s performance in the classroom and why Director recommended the continuation of “Special Education services” at five periods per week (Tr. #2 142-144). Parent’s Attorney #2 did not ask any questions about the provision of SLT or financial obligations (Tr. #2 142-144). piece” (Tr. #3 146). Finally, through their written, direct testimony, Financial Officer did not testify that Parent signed a contract with Provider Agency (Ex. G). [34]
The bottom line is that Parent did not produce a written contract. Moreover, although Provider Agency is not expected to prove that a contract existed, particularly because they are not a party to the instant proceedings, they did not produce a contract either. Finally, I note that Parent’s Attorney #2 does not assert that a written contract exists, stating that any contract between Parent and Provider Agency need not have been reduced to writing (Tr. #2 163). Accordingly, I find that no written contract exists between Parent and Provider Agency.
The issue, then, is whether Parent put forth sufficient evidence, through documents and/or testimony, to prove that they have a legal obligation to pay Provider Agency for “Special Education services,” SLT and OT. As evidence of their understanding that they have an obligation to Provider Agency, Parent submitted an Acknowledgement of Liability signed on April 4, 2023 (Ex. K). They were also subject to live examination regarding this document and their responsibility to pay. Despite the numerous inconsistencies, I find that Parent has demonstrated a financial obligation to pay Provider Agency.
The “Acknowledgment of Liability” states that Parent is liable to pay Provider Agency $195 per hour for “Special Education services,” and $225 per hour for SLT and OT services if the IHO “does not issue a ruling for the full amount requested,” and that the document is an “enforceable legally binding agreement in the State of New York” (Ex. K).
I recognize that there are certain problems with the document. For example, it does not reference the school year, the frequency of services or the length of each service (Ex. K). However, the document references the case number pertaining to this matter which contains this pertinent information (Ex. K). Additionally, the Acknowledgement is not on any type of letterhead nor is it countersigned by anyone or notarized (Ex. K). In fact, Director did not know about this document, specifically asking, “[w]ould that be similar to a contract?” (Tr. #2 146-147), and as noted, Financial Officer did not testify about this document (Ex. G).
More troubling is the testimony pertaining to this document. For example, although the “Acknowledgement” states that Parent knows that the rates charged by Provider Agency are “significantly higher than the standard rate that the [DOE] typically reimburses for said services” (Ex. K; Tr. #2 138), Parent testified that they do not know the “going rate” for services, and therefore, “wouldn’t really know if the rate is high or not” (Tr. #2 138). Parent clarified this statement, explaining, “I didn’t actually speak to a bunch of OTs and ask them . . . what they charge, so . . . if I hear that it’s high, then . . . I believe that” (Tr. #2 138-139). Parent also testified they were not sure of the rates charged for SEIT services/SETSS or the OT (Tr. #2 138). [35]
Nonetheless, Parent testified in their live testimony that prior to signing the “Acknowledgement of Liability,” they understood that there was an agreement to pay for the services (Tr. #2 137-138). Parent could not recall exactly when “financial obligations” were discussed in relation to the commencement of services, or when the agreement was made, but “if it wasn’t right away, then it was a little afterwards, yes, sometimes then” (Tr. #2 137). Parent also testified in their live testimony that they “hope[d] [Student was] going to get those services back, [sic] so we don’t have to pay for it because that would, of course, be a very big hardship for us” (Tr. #2 134). Additionally, Parent testified that the “Acknowledgment of Liability” was created to show that “should we not get approved for payment, then we will have to pay that money” (Tr. #2 135-136).
I do not find that the Acknowledgement is a contract. Nor do I find that the document, on its face and by itself, is sufficient proof of Parent’s obligation to pay for the services administered by Provider Agency. However, I find that the document provides some evidence of Parent’s understanding that they are obligated to Provider Agency. I also find that Parent’s testimony, particularly their live testimony, demonstrates that burden. Additionally, I find that Director believed, at the very least, that Parent should have signed a written contract as is typically done, thereby supporting the existence of an understanding of a contractual obligation. Accordingly, I find under the totality of the circumstances, that Parent was obligated to pay Provider Agency, and therefore, that Parent met their burden.
In light of my finding that Parent was obligated to pay Provider Agency for SETSS, SLT and OT, I do not find it necessary to address the argument of Parent’s Attorney #2 that, pursuant to the [S]tatute of [F]rauds “contracts for services need not be put down in writing in order to be enforceable” (Tr. #2 163). 36, [37]
36
Had I not found the obligation, I would reject this argument as irrelevant.
In brief, I find no reason to insert N.Y. Gen. Oblig. Law § 5-701 into a proceeding to determine whether a student is entitled to receive special education and related services, and if so, the type, frequency and duration of those services. Generally speaking, the Statute of Frauds is designed to protect parties to a contract by delineating which contracts must be in writing and which ones need not be. See N.Y. Gen. Oblig. Law. § 5-701; see generally William Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470 (2013) (stating, “[i]n short, the purpose of the Statute of Frauds is simply to prevent a party from being held responsible, by oral, and perhaps false, testimony, for a contract that the party claims never to have made") (citation omitted). It serves as a mechanism by which one party wishes to enforce a contract against another party. see also generally Wellman v. Holzer, 56 N.Y.S. 299, 302 (Sup. Ct. N.Y. Co. 1945) (stating, “[t]he Statute of Frauds is limited to cases in which a contractual obligation is the basis of recovery, to cases in which action is brought on the contract . . .”). Thus, the Statute of Frauds concerns matters between those parties.
Here, Provider Agency is not seeking to enforce the contract against Parent. Parent is trying to prove that they are bound by a contract. Further, Provider Agency is not a party to the Impartial Hearing, and the District is not a party to the contract entered into by Parent and Provider Agency. In the context of IDEA proceedings, such as the one at issue, evidence of a contract or a legal obligation between a parent and a provider is a threshold issue to determine whether a parent is entitled to direct funding for services by determining whether the parent would be required to pay for services if the District is not ordered to fund them. Simply put, I find the statute inapplicable to these proceedings. Equitable Considerations- Funding of SETSS, SLT and OT Administered by Provider Agency Regarding rates sought, in the DPC, Parent did not request that the District be ordered to fund SETSS or related services at any specific rate (Ex. A). Parent testified that they seek an Order directing: reimbursement or direct funding of “Special Education services” and SLT at a “reasonable market rate;” reimbursement through RSAs to OT Agency for 30, 30-minute sessions of OT; and the creation of a bank of 45 hours of compensatory OT hours to be funded effective January 19, 2023 until at least two years after the end of the 2022-2023 school year (Ex. E-3). At the Due Process Hearing, Parent’s Attorney #2 further clarified that they sought the OT provided by OT Agency be funded through RSAs, but the OT services provided by Provider Agency be funded at a “reasonable market rate” (Tr. #1 69-70; Tr. #2 165). As explained above, the “Acknowledgment of Liability” states, inter alia, that Parent is liable to pay Provider Agency $195 per hour for “Special Education services,” and $225 per hour for SLT and OT services provided to Student during the 2022-2023 school year (Ex. K), despite that Financial Officer testified to charging $198 per hour for SEIT services/SETSS and $225 per hour for related services (Ex. G-1). For the reasons described below, I am ordering that Provider Agency be paid at a “reasonable market rate” for the SETSS, SLT and OT it provided during the 2022-2023 school year. The reasonable market rate shall be consistent with rates that have been paid by the Implementation Unit for comparable SETSS, SLT and OT within six months of the date of this Order, and is not to exceed $195 per hour for any of those services.
I base my finding that “a reasonable market rate” up to $195 for all services administered by Provider Agency is warranted on the following facts. Initially, the District has not challenged the requested rates nor have they put forth any evidence to prove that Provider Agency’s rates are unreasonable or that those rates are not comparable to other rates in the market for SETSS, SLT or OT. District Representative also declined to cross-examine Financial Director (Tr. #2 108), and did not question Program Director about their rate (Tr. #2 147-150). I find credible Financial Officer’s testimony that a portion of these rates funds: 1:1 supervision; educational resources and support; professional development and materials; employment taxes; administrative costs; and overhead costs (Ex. G-1). Additionally, I find that, for the most part, the SETSS providers are properly qualified to administer services to Student. Student’s “Special Education services” were being administered by Direct Providers #1, #2 and #3 (Ex. F-3). Each Direct Provider is certified to teach students with disabilities (Ex. F-3; Ex. I-1, 2, 3). They are also trained and experienced in teaching literacy and comprehension to school-aged children (Ex. F-3). Although all three are bilingual REDACTED providers, only Direct Providers #1 and #3 hold Bilingual Education Extension Certificates (Ex. F-3; Ex. I-1, 2, 3).
I agree with the District that there was insufficient information that Student required direct special education services instead of group SETSS. Director believes Student requires the continuation of the five periods of “Special Education services” on an individual basis given Student’s academic and social delays (Ex. F-4; Tr. #2 143). Specifically, Student is not “picking up” all the skills in the classroom, but Student is capable of learning and retaining skills with the support of the special education teacher or related service provider (Tr. #2 143). Further, without that support, Student would be “falling seriously behind the class” (Tr. #2 143-144). I find that these statements are general, conclusory and speculative. However, District Representative failed to put forth any evidence regarding a “reasonable market rate” for individual or group SETTS. Accordingly, I am ordering a “reasonable market rate” for group SETSS, not to exceed $195 per hour.
Regarding the related services, I am troubled by the lack of evidence Parent’s Attorney #2 presented and decline to award $225 for either service. Parent’s Attorney #2 provided almost no information about Occupational Therapist. Director failed to include any mention of OT services in their affidavit, could not pronounce the therapist’s name and only produced the individual’s license (Ex. F; Tr. #2 146). Parent’s Attorney #2 put forth no evidence regarding any special qualifications regarding this person. Parent’s Attorney #2 also proffered no testimony or evidence regarding the qualifications of the person who provided SLT to Student for the 2022-2023 school year (Ex. F). Moreover, I find it curious that Financial Officer testified that they charge $198 per hour for SEIT services/SETSS and $225 per hour for related services (Ex. G-1). They did not affirmatively state that they are charging Parent $198 and $225 (Ex. G). Further, Financial Officer testified that they were only administering Special Education services and SLT, but not the OT (Ex. G). Accordingly, I decline to award $225 for those services.
Finally, although Parent did not timely serve a TDN on the District, I am not diminishing the requested amount as that notice was served only 1 day late and is proper in all other respects. Specifically, I take official notice that NYC Public School students began on September 8, 2022. [38] Thus, Parent was to have provided the District notice on August 24, 2022, ten business days prior to September 8, 2022. Parent filed that notice on August 25, 2022 (Ex. C; Ex. E-2). Reviewing the substance of the TDN, Parent was “very concerned that the IEP Team removed the SEIT Program and replaced it with so few periods of SETSS” (Ex. C-2). Parent asserted that it appeared that the CSE “had already made up its mind before the meeting to remove the SEIT program which was being serviced on a one[-]to[-]one basis” (Ex. C-2). Parent “reject[ed] the most recent reduced recommendations,” and concluded that they would place Student in Private School and seek reimbursement or direct funding for the “prior recommended services” (Ex. C-2). The District did not respond (Ex. E-2). I find that the notice conforms to the ten day notice requirement.
Accordingly, I am ordering that the District pay Provider Agency “a reasonable market rate” for group SETSS, individual and group SLT and group OT. The “reasonable market rate” is to be consistent with rates that have been paid by the Implementation Unit for comparable group SETSS, individual and group SLT and group OT within six months of the date of this decision, and is not to exceed $195 per hour.
Direct Funding to Provider Agency for SETSS, SLT and OT
Parent seeks direct funding to Provider Agency for the SETSS, SLT and OT administered during the 2022-2023 school year (Ex. E-2, 3). As explained above, I find that Parent is legally obligated to pay Provider Agency, but have determined that the rate for those services is not to exceed $195 per hour. I find that Parent is entitled to the requested form of payment.
Pursuant to Connors v. Mills, 34 F.Supp.2d 795, 799, 805-06 (N.D.N.Y. 1998) “once the Burlington prerequisites are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately.” See also Mr. & Mrs. A. v. New York City Dep’t. of Educ., 769 F. Supp. 2d at 427 (stating that where the Burlington factors are met, the court may award retroactive direct payment of private school tuition.) Here, I find that Parent testified credibly that paying for services up front would cause “extreme financial hardship” and that Parent could not afford to pay for the services “without outside financial assistance” (Ex. E-2). I further find that Parent is not required to produce anything further to satisfy the request for direct funding. See Ferreira v. New York City Dep’t of Educ., 2023 WL 2499261 (S.D.N.Y. March 14, 2023) (noting that Court found no caselaw holding that “proof of inability to pay is required to establish the propriety of direct retrospective payment,” and that “where it is undisputed that the DOE is responsible for payment, and the DOE does not contest the reasonableness of the cost of tuition, it would be nonsensical to draw a distinction on equitable grounds between requiring the DOE to pay the school directly and forcing the parents to make an initial payment in the same amount that the DOE is then required to reimburse”).
As I have found that the Burlington/Carter test has been met, that the rates as adjusted are not unreasonable, and that there is evidence that Parent is unable to pay for the SETSS, SLT and OT, I am granting the request for direct payment to Provider Agency for the 2022-2023 school year as detailed in my Order below.
Equitable Considerations- Existence of Parent’s Obligation to Pay OT Agency for OT At the outset, I find that the request for funding to OT Agency is different from the request for funding to Provider Agency. Parent is not seeking enhanced rates for services, but rather is seeking RSAs for OT Agency. Having found that the DOE should have recommended OT, the DOE would have been required to implement those services and paid providers, at the very least, at the RSA rate. Parent seeks no more here.
As noted above, although Parent is not required to produce a physical contract, a physical contract would be the “best evidence” of Parent’s obligation. However, Parent testified live that they did not have to sign a contract with OT Agency (Tr. #3 135), and OT Provider testified that they are not familiar with the financial arrangements between OT Agency and Parent (Tr. #2 120). On this record, I do not find that Parent entered into a written contract for OT with OT Agency.
Accordingly, I must determine whether Parent had a legal obligation to pay OT Agency for OT. I find that Parent has proven such. On April 4, 2023, Parent signed an “Acknowledgment of Liability (Ex. L). The “Acknowledgment of Liability” states that Parent is liable to pay OT Agency $90 per hour for OT services provided to Student unless the IHO “issues a ruling for the full amount requested or the DOE issues an RSA for the OT that [Student] is receiving,” and that the document is an “enforceable legally binding agreement in the State of New York” (Ex. L). Although many of the same concerns I had with the other “Acknowledgment” are present here, i.e. the actual rate for services (Tr. #2 135) and that the Acknowledgement is not on any type of letterhead nor is it countersigned by anyone or notarized (Ex. L), I find that Parent understood that there was an agreement to pay for the services, and that Parent is obligated to pay for any services not funded by the DOE (Tr. #2 2 134, 135-136, 137, 138). Again, I find it unnecessary to address the Statute of Frauds argument.
Funding of OT Hours to OT Agency and Compensatory Services for Missed OT Parent seeks RSAs for OT services administered through OT Provider and a bank of 45 hours of OT based upon a 40-week school year to account for the services the District failed to provide (Tr. #1 57-58, 70). I find that Parent is entitled to the RSAs and the bank of services, less services already received, and based upon a 36-week school year, not a 40-week year.
To the extent that such is required, my analysis of the reasonableness of the cost of the OT services provided by OT Agency is similar to the above analysis. Parent seeks RSAs for those services, so the reasonableness of the rate itself is not at issue. I do find that OT Provider was duly qualified to provide the OT services (Ex. H-1; Ex. I-4) and I find that Parent was obligated to OT Agency for the reasons I found above.
Compensatory education is an award of educational services “to be provided prospectively to compensate for a past deficient program.” Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 522 (D.C. 2005) (internal citations omitted.) See also P. v. Newington Bd. Of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (stating compensatory education is an available remedy to make up for denial of FAPE). Although the IDEA does not contain any specific reference to compensatory education, courts consistently have recognized it as an equitable remedy rooted in the courts’ statutory powers to determine appropriate relief. See Reid, 401 F.3d at 522. See also 20 USC § 1415(i)(2)(C)(iii) (“[i]n any action brought under this paragraph, the court basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate”); 34 C.F.R. § 300.516(c)(3) (granting relief the court determines to be appropriate).
As an equitable remedy, it is not to be awarded as a punishment for a school district’s failure to provide a FAPE. See Reid, 401 F.3d at 522. It is also not a contractual remedy. See Reid, 401 F.3d at 523. Rather, it involves “discretionary, prospective injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency’s failure over a period of time to provide a FAPE to a student.” Reid, 401 F.3d at 523 (internal citation and quotation omitted.) Compensatory education looks to undo damage done by prior violations. Reid, 401 F.3d at 523.
Once compensatory education is determined to be appropriate, a court must still determine how to remedy that past violation. Some courts employ a quantitative approach– a formulaic, one-for-one method where the award equals the length of time the Student was inappropriately placed or denied services. Awards can be measured using an hour-for-hour accounting, yearly accounting or other similar accounting. See e.g. M.C. v. Cent. Reg’l Sch. Dist., 81 F3d 389 (3d Cir. 1996). Other courts use a qualitative approach. That approach allows a court to craft an award after considering many different factors, such as the student’s needs and abilities, the school district’s conduct and the family’s conduct. See Reid, 401 F.3d at 524. See also Bd. Of Educ. Of Fayette Cty., Ky. v. L.M., 478 F.3d 307 (6th Cir. 2007), cert. denied 552 U.S. 1042 (2007).
Neither the Second Circuit nor New York State courts have settled on one of these approaches. Accordingly, either may be used. Regardless of the approach, a court must craft an award that is “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid, 401 F.3d at 524.
Based upon the evidence before me, I find that a quantitative analysis is appropriate for determining the number of hours of compensatory education the District is to provide this Student.
As stated earlier, I have found that Student is entitled to OT to be provided in a group of up to two, three times per week for 30 minutes to be administered in English. I further find that a 10-month school year comprises 36 weeks, a reflection of the 180 instructional days divided by five days per week.[39] Accordingly, Student was entitled to 54 hours of OT services.
Student received a total of 30, 30-minute sessions through OT Provider for a total of 15 hours. OT Provider will accept RSAs for payment, and I am ordering such.
Had Student not received any other OT, Student would have been entitled to a bank of 39 hours. However, on January 19, 2023, Provider Agency was able to administer 30-minute sessions of OT to Student. As of the time of this writing, Student may have received as much as 23, 30-minute sessions, for a total of 11 ½ hours. Parent seeks direct funding for those services. Student then would have been entitled to the remainder, approximately 27 ½ hours, as a bank. As Parent did not provide evidence of exactly how many OT hours Provider Agency administered to Student, nor whether OT Agency was able to provide additional hours, I am ordering a bank of 39 hours to be funded through RSAs or at a “reasonable market rate” which is to be consistent with rates that have been paid by the Implementation Unit for comparable group OT within six months of the date of this decision, and is not to exceed $195 per hour.
Finally, I am ordering that any OT services not utilized by Student within one year of this decision shall expire. I understand that Parent has requested that the bank remain “until at least two years after the end of the 2022-2023 school year” (Ex. E-3). However, the bank comprises only approximately 28 hours which is less than one hour per week. Additionally, given the purpose of compensatory education, I want to ensure that Student receives these services sooner rather than later. I am ordering the District to assist Parent in finding an appropriate OT provider should Parent request such assistance.
OTHER CONTENTIONS
Parent seeks payment of attorneys’ fees and expenses associated with representation in this matter (Ex. A-3). 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. I would be exceeding the scope of my authority by determining that Parent is the prevailing party entitled to attorneys’ 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.
ORDERS
IT IS HEREBY ORDERED THAT the Department of Education (“DOE”) shall fund for the 10-month, 36-week 2022-2023 school year, group Special Education Teacher Support Services (“SETSS”) three hours per week to be administered in REDACTED by a licensed special education teacher of Parent’s choosing, and at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services for group SETSS within 6 months of the date of this Order. This “reasonable market rate” shall not exceed $195 per hour; and it is further
ORDERED THAT the DOE shall pay 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 the DOE shall fund for the 10-month, 36-week 2022-2023 school year, individual Speech Language Therapy (“SLT”) two times per week for 30 minutes and group SLT one time per week for 30 minutes to be administered in REDACTED by a licensed speech pathologist of Parent’s choosing, and at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services for individual SLT and group SLT within 6 months of the date of this Order. This “reasonable market rate” shall not exceed $195 per hour; and it is further
ORDERED THAT the DOE shall pay 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 the DOE shall fund for the 10-month, 36-week 2022-2023 school year group Occupational Therapy (“OT”) three times per week for 30 minutes for a total of 54 hours to be funded as follows: 1) The DOE is ordered to issue Related Services Authorizations (“RSAs”) payable to OT Agency for 30, 30-minute sessions of OT (for a total of 15 hours) administered during the 2022-2023 school year; 2) The DOE is ordered to directly fund Provider Agency for up to 23, 30-minute sessions of OT (for a total of up to 11 ½ hours) administered during the 2022-2023 school year, at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services for group OT within 6 months of the date of this Order. This “reasonable market rate” shall not exceed $195 per hour; and 3) The DOE is ordered to fund the remaining hours (for a total of up to 27 ½ hours) either through RSAs or at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services for group OT within 6 months of the date of this Order. This “reasonable market rate” shall not exceed $195 per hour. The funding through RSA or direct payment is at Parent’s choosing, but the OT provider must be a licensed occupational therapist; and it is further
ORDERED THAT the DOE shall pay the providers 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 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 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 OT services, as described above, are not utilized by Student by one year from the date of this Order, any remaining services shall expire; and it if further
ORDERED THAT the DOE shall, within 30 days of the date of this decision, reconvene a meeting of the Committee on Special Education (“CSE”) to consider whether Student is entitled to OT services, and after due consideration, to provide Parent with prior written notice specifically indicating whether the CSE recommended or refused to recommend such services on Student's IESP, and explaining the basis for the CSE's recommendation as well as the evaluative information relied upon in reaching that determination.
August 8, 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 #1
REDACTED Parent’s Attorney #2
REDACTED Parent’s Attorneys’ Firm
REDACTED District Representative #1
REDACTED Service District
REDACTED Private School
REDACTED Administrative Director of Special
Education Services at
Provider Agency
REDACTED Provider Agency
REDACTED Direct Provider #1
REDACTED Direct Provider #2
REDACTED Direct Provider #3
REDACTED Educational Supervisor
REDACTED Financial Officer
REDACTED Occupational Therapist
REDACTED OT Provider
REDACTED OT Agency
REDACTED DOE School Psychologist
APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Due Process Complaint Committee on Preschool Education 01/17/2023 7 pages
B. Individualized Education Program 04/27/2022 16 pages
C. Ten Day Notice 08/25/2022 2 pages
D. Individualized Education Services Program 03/01/2022 13 pages
E. Affidavit of Parent 04/04/2023 3 pages
F. Affidavit of REDACTED 04/04/2023 4 pages
G. Affidavit of REDACTED 04/04/2023 2 pages
H. Affidavit of REDACTED 03/16/2023 4 pages
I. Provider Credentials N/A 5 pages
J. Progress Report 1/16/2023 6 pages
K. Acknowledgement of Liability- REDACTED 04/04/2023 1 page
L. Acknowledgement of Liability- REDACTED 04/04/2023 1 page
DOE EXHIBITS
1. Individualized Education Services Program (“IESP”) 03/01/2022 12 pages DOE
2. Occupational Therapy (“OT”) Evaluation Student Annual Progress Report/Assessment from REDACTED Special Education and Pre-School Individualized Education Program 11/15/2021 and 03/22/2022 19 pages DOE
3. (“IEP”) 12/28/2021 19 pages DOE
4. Affidavit of REDACTED Undated 3 pages DOE
IHO EXHIBITS
I. Emails Regarding Witness Availability and 03/07/2023- Pendency 03/16/2023, Emails Regarding Rescheduling the 03/22/2023 and 03/80/2023 10 pages
II. Due Process Hearing 03/272023 6 pages
III. Pendency Order 7/25/2023 18 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] The CSE worded the recommendation as “periods” (IHO Ex. I-9). During the proceedings, the Parties also used the word “hours” when referring to the recommendation.
[3] References to the transcript from the Pre-Hearing Conference conducted on February 22, 2023 are denoted “PHC Tr.” References to the transcript from the Pendency Hearing conducted on March 14, 2023 are denoted “Pend Tr.” References to the transcript from the Due Process Hearing conducted on April 4, 2023 and April 17, 2023 are denoted “Tr. #1” and “Tr. #2,” respectively.
[4] As explained below, Parent’s Attorney #1 at the Pre Hearing Conference, and Parent’s Attorney #2 at the commencement of the Due Process Hearing, each asserted that Parent was challenging the “removal” of OT from Student’s programming (PHC Tr. 9-10; Tr. #1 56-57, 69). At the commencement of the Due Process Hearing, Parent’s Attorney #2 clarified that Parent was also challenging the CSE’s SLT recommendation of two individual sessions and one group session, which was a change from the CPSE’s SLT recommendation of three individual sessions (Tr. #1 56, 68-69).
[5] Parent testified that they seek an Order directing: reimbursement or direct funding of “Special Education services” and SLT at a “reasonable market rate;” reimbursement through Related Services Authorizations to OT Agency for 30, 30-minute sessions of OT; and the creation of a bank of 45 hours of compensatory OT hours to be funded effective January 19, 2023 until at least two years after the end of the 2022-2023 school year (Ex. E-3). At the Due Process Hearing, Parent’s Attorney #2 further clarified that they sought the OT provided by OT Agency be funded through Related Services Authorizations, but the OT services provided by Provider Agency be funded at a “reasonable market rate” (Tr. #1 69-70; Tr. #2 165).
[6] Parent also invoked pendency (Ex. A-2). As explained below, on July 25, 2023, I issued an Order on Pendency (IHO Ex. III).
[7] The District’s use of the terms “Prong One” and “Prong Two” refers to the Burlington/Carter standard as applied to cases involving direct funding for special education and related services and the rates for such for students placed in nonpublic schools by their parents.
[8] The Progress Reports list Student’s grade as Pre-1A (Ex. J-1, 5; Tr. #2 143).
[9] Settlement conferences are conducted by an OATH Settlement Officer or OATH IHO not assigned to the case whose purpose is to aid the parties in exploring and facilitating a resolution to the DPC. Settlement Conference discussions are 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.
[10] Through a series of emails among District Representative, Parent’s Attorneys’ Firm and me, I agreed to postpone the DPH because the District’s witness was unavailable (IHO Ex. I; Pend. Tr. 21-22).
[11] In response to a series of emails, I scheduled the April 4, 2023 appearance to address additional pendency issues raised and to commence the DPH, and scheduled the continuation of the DPH for April 17, 2023 (IHO Ex. II; Tr. #1 45-48).
[12] Parent’s total request for 60 hours of OT was based on a 40-week school year.
[13] Proffered Exhibit 1, the March 2022 IESP, was the same as Parent’s proffered Exhibit D. I have cited to Parent’s Exhibit D in this decision.
[14] At various points during these proceedings, this meeting had been referred to as a “Turning 5” meeting. Although the term “Turning 5” was not defined, I find that it refers to the review the CSE conducts whereby students in preschool receiving services pursuant to IEPs are evaluated for special education and related services prior to entering kindergarten.
[15] Although the District did not proffer an “earlier” OT evaluation, they did proffer an OT evaluation conducted on March 22, 2022, created after the CSE convened but before the CPSE convened (Ex. 2). Neither Party proffered the Psychoeducational Evaluation which had been conducted approximately 18 months prior to the meeting (Ex. 4-2).
[16] The Attendance Page incorrectly lists Student’s date of birth instead of the date of the IEP meeting (Ex. B-2).
[17] No specific dates are listed on the IEP for either implementation or review (Ex. B-3).
[18] Although Parent testified that TDN was served on September 8, 2022, the email reflects that Parent’s Attorney served the TDN on August 25, 2022 (Ex. C; Ex. E-2).
[19] Director did not testify that Provider Agency administered SLT to Student during the 2022-2023 school year (Ex. F).
[20] Through their written direct examination, Director testified that the services were “typically provided outside of the classroom” (Ex. F-3). Parent believed that SETSS or SEIT services were being provided in a combination of pull out and push in services (Tr. #2 134).
[21] Parent proffered no testimony or evidence regarding the qualifications of the person who provided SLT (“SLT Provider”) to Student for the 2022-2023 school year (Ex. F).
[22] Director testified that they could not pronounce OT Provider’s name, identifying the provider as “Abby” (Tr. #2 146). I find that a somewhat similar name appears on the OT License, and thus, find that the testimony refers to that person.
[23] Student is receiving OT twice per week (Tr. #2 129-130) from two different providers because Parent had difficulty finding a gym with availability for Student (Tr. #2 130). At the beginning of the school year, Parent placed their name on waitlists for gyms (Tr. #2 131-132).
[25] Although Financial Officer testified Provider Agency charges $198 per hour for SEIT services/SETSS (Ex. G-1), Parent is only obligated at $195 per hour for “Special Education services” (Ex. K).
[26] I find it interesting that Parent’s Attorneys have couched their claims in terms of “reduction” and “removal” given that the CSE met prior to the CPSE.
[27] The CPSE did not specifically delineate what evaluations it relied upon in creating the most recent IEP, referring only to informal assessments and an (undated) OT evaluation (Ex. B-3).
[28] Parent further explained that they wished Student could learn to self-regulate and adjust to challenging situations more appropriately,” describing that Student can tantrum for up to 50 minutes when not given their way (Ex. D-4). Parent also wished for Student to “be able to focus on lessons and recall the details of lesson(s) and stories” (Ex. D-3).
[29] I find DOE School Psychologist’s acknowledgment that the CPSE likely recommended OT services based upon reviewing the March 2022 OT evaluation (Tr. #2 98-99) credible, but irrelevant. As discussed, the CSPE uses a different evaluative model. What is relevant is whether the CSE would have recommended OT if they had reviewed that evaluation prior to drafting the IESP.
[30] This amount was determined by adding by five hours per week of “Special Education services” at $195 per hour for 36 weeks ($35,100) and 1 ½ hours per week of SLT at $225 per hour for 36 weeks ($12,150) and ½ hour per week of OT at $225 per hour for approximately 23 weeks ($2,587.50).
[31] Parent affirmed their written testimony on April 4, 2023 (Ex. E). This was the same day they signed the “Acknowledgements of Liability” (Ex. K, Ex. L).
[32] Director affirmed their written testimony on December 21, 2022, after they began providing “Special Education services” and SLT, but prior to their providing OT to Student (Ex. F).
[34] Financial Director affirmed their written testimony on December 21, 2022, after Provider Agency began providing “Special Education services” and SLT, but prior to their providing OT to Student (Ex. G). Parent’s Attorney #2 did not seek to call Financial Director for any supplemental redirect.
[35] Parent was not asked about the rate for SLT (Tr. #2 138). Through their written testimony, Parent did not attest to any rates charged (Ex. E).
[37] Had I not found the existence of an obligation to pay, I still would have awarded funding to Provider Agency at the DOE’s “standard” rates for group SETSS, group and individual SLT and group OT based upon my finding that the services Parent selected were appropriate. Regardless of Parent’s burden to prove the existence of the obligation and the reasonableness of the rates, the District recommended SETSS and SLT and I determined that the District should have recommended OT. As already described, the District was required to provide these services and their failure should not be excused.
[38] See https://www.schools.nyc.gov/about-us/news//2022-2023-school-year-calendar (last visited July 23, 2023).
[39] See https://www.schools.nyc.gov/about-us/news//2022-2023-school-year-calendar (last visited July 23, 2023). See also generally Application of a Child with a Disability, Appeal No. 23- 033, FN 10.