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CASE NUMBER: 598382– NYC: 247423
FINDINGS OF FACT AND DECISION
Case Number: 247423 Student’s Name: [REDACTED] School District: N.Y.C. Dept. of Ed., District # [Redacted] Impartial Hearing Officer: Roberta Wolf Date of Filing: 04/13/2023 Hearing Requested by: Parent Dates of Hearing: 06/14/2023 Record Close Date: 07/11/2023 Date of Decision: 07/11/2023 Case No. 247423
NAMES AND TITLES OF PERSONS WHO APPEARED ON June 14, 2023
(DOE): — DOE
[REDACTED], Representative — DOE
[REDACTED], Representative — Student
[REDACTED], — Parents
[REDACTED], Speech-Language Therapist — Student
BACKGROUND AND PROCEDURAL HISTORY
On April 13, 2023, the Parent, by and through her attorney’s law firm, filed a due process complaint (DPC) against DOE on behalf of the Student, under Case No. 247423, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1415(f)) and Section 4404(1) of the New York State Education Law (Education Law). 1 In the DPC, the Parent asserts that DOE failed to provide the Student with a free appropriate public education (FAPE) for the 2022-2023 school year by failing to implement her individualized education program (IEP), which mandated occupational therapy (OT) and bilingual-Yiddish speech-language therapy (SLT).[2] Through an independent search, the Parent eventually found a speech-language therapist, but not an occupational therapist.[3] She now seeks an Order that DOE fund those services at enhanced rates paid directly to the providers of her choice. 4 I was appointed impartial hearing officer (IHO) on April 14, 2023; held prehearing conferences on May 15, 2023, and June 2, 2023, and adjudicated a due process hearing on June 14, 2023. At the hearing, DOE did not present a case, nor did it object to the Parent’s evidence, dispute the Student’s entitlement to services, or contest the validity of SLT services provided to the
Student.[5] Rather, DOE only challenged the appropriateness of the rate charged by the Parent’s SLT provider. 6 The Parent’s case consisted of witness testimony (live and affidavit form) and documents placed in evidence, a list of which is appended to this Order.
1 Ex. A.
FINDINGS OF FACT
The Student is [REDACTED] years old and her eligibility for special education services and supports is not in dispute. She presents with expressive and receptive language delays and has poor verbal comprehension and language skills. 7 She also presents with clumsy behaviors, poor motor planning, and cannot button or zip clothing. 8 Per her 2022-2023 IEP, DOE classified her as a “Preschool Student with a Disability,” and mandated OT and bilingual-Yiddish SLT administered in a dyad setting, in two, 30-minute weekly sessions each. 9 DOE never provided these services. At the beginning of the school year, the Parent contacted the Student’s school for assistance in locating providers.[10] The school eventually located one speech-language therapist who contracted with the Parent to provide SLT beginning January 2023.[11] The school never located an OT provider so the Student has not received any OT for the 2022-2023 school year. [12]
The Speech-Language Therapist charges $150 per half-hour session. 13 She has 13 years of experience as a bilingual-Yiddish speech pathologist, holds a Master’s Degree, and is licensed by the State.[14] She also holds a teaching certificate for grades K through 8.[15] She determined her rate for SLT services based on a combination of factors, including: (1) a scarcity of bilingual-Yiddish
SLT providers; (2) her years of experience; (3) overhead costs; (4) the complexity and highly individualized service she provided; and (5) because she called other SLT providers of a similar experience level and they confirmed that they also charged $150 per half-hour session. 16 She pays
7 Ex. C4-C6. 8 Ex. C8. 9 Ex. C.
out-of-pocket for her own professional development and re-licensing.[17] Each 30-minute SLT session requires substantial planning and preparation because the Therapist collaborates with the Student’s teachers, principal, and Parent to create highly individualized lesson plans and homework.[18] The Therapist can provide group therapy if requested by the Student’s school and would charge less in that environment.[19] The Therapist rarely offers SLT in a dyad setting, especially in a yeshiva such as the Student attends, because yeshivas have a relatively small number of students with IEPs and still fewer with IEPs similar enough to pair for services.[20] The Therapist observed significant progress by the Student, as evidenced by her: (1) ability to structure sentences properly; (2) use of expanded vocabulary and appropriate articles of speech;
(3) increased short-term memory; and (4) overall level of confidence. [21]
ANALYSIS
The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services. 22 A FAPE is offered to a student when (a) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits; and (b) DOE complies with the procedural requirements set forth in the
IDEA.[23] For a procedural violation, an impartial hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE,
(b) significantly impeded the parent’s opportunity to participate in the decision-making process 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 24 In general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 25
FAPE Denied to the Student
A school district offers a student a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” [26]
An IEP must include a statement of the student’s present levels of academic achievement and functional performance; annual goals designed to meet the student’s needs resulting from her disability and that enable her to make progress in the general education curriculum; and provide appropriate special education and services.[27] “A reviewing court may fairly expect [DOE] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated and implemented to enable the child to make progress appropriate in light of [her] circumstances.” 28
In this case, DOE stated on the record that it would not defend that it provided the Student with SLT or OT – the only two services mandated by her 2022-2023 IEP. DOE is responsible for implementing the programs it recommends in IEPs and IESPs, and it has been held that the District may not effectively compel the parent to resort to self-help in obtaining a service 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
20 U.S.C. § 1415(f)(3)(E)(i).
provider.[29] The Student here displays multiple delays which interfere with her ability to access her education. DOE mandated SLT and OT to address those delays but provided neither of those services. Consequently, I find that DOE failure to implement sufficient support services prevented the Student from benefiting educationally from the instruction provided by DOE, which constitutes a denial of FAPE.
SLT at $150 per Session Granted
As addressed above, DOE did not present a case, but argued that the Parent failed to establish the appropriateness of the rate charged by the Student’s Speech-Language
Therapist.[30] DOE pointed to that part of the Therapist’s testimony that substantiated her rate based on a scarcity of available therapists and phone calls with other speech-language therapists who verified that they charged the same rate. 31
“[A]n outright default judgment awarding any and all of the relief requested without question is a disfavored outcome.” 32 The State Review Office (SRO) has held that when the parent has not already paid the service 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. 33 Because the Parent had to find the provider on her own and because “caselaw supports reimbursement and direct remedies in a unilateral placement case,” the SRO has determined that the question of whether a related service provider should be directly paid is somewhat similar to the Burlington/Carter framework, which “forecloses any complete disavowal of the parent’s burden of production and persuasion related to the private, unilateral services obtained by the parent.” 34 Thus, in a case such as this, where the central issue is whether a third-party provider selected by a parent should be remunerated with an enhanced rate over what DOE normally pays, the parent’s evidence must be scrutinized, consistent with my obligation and equitable authority to ensure that the remedy “be appropriate in light of the purpose of the Act.” 35 The evidence therefore must show that the provider’s rates are reasonable and appropriate under the circumstances.
Factors relevant to the reasonableness of the rate include: the provider’s explanation of the rate, including its costs and the qualifications of the instructor; 36 the value that specialized certification, such as a bilingual extension, adds to instruction; 37 the parent’s efforts to locate a DOE-approved service provider from a list provided by the Department to the parent; 38 and whether the parent directly paid the provider or is contractually obligated to pay the provider in the event that DOE is not ordered to fund the service at the requested rate. 39
Here, the Therapist has 13 years of experience as a bilingual-Yiddish speech pathologist.
She also holds a Master’s Degree, State license, and teaching certificate. She provides highly
34 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.”). 35 East Lyme Bd. of Educ., 790 F.3d at 454 (citation omitted). 36 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.”). 37 Application of a Student with a Disability, Appeal No. 21-183, at pp. 20-21 (Oct. 29, 2021) (approving compensatory SETSS by a bilingual reading specialist at a rate not to exceed $200 per hour). 38 See e.g., Application of a Student with a Disability, Appeal No. 21-096 (May 26, 2021). 39 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 [special education teacher support services] 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”).
individualized SLT lesson plans and homework, and communicates regularly with the Student’s Parent, principal, and teachers to ensure her effectiveness. The Student exhibited substantial progress in multiple areas after only five months of SLT with the Therapist. 40 I find the Therapist’s testimony is consistent, comprehensive, and credible. I further find that the Parent has provided sufficient evidence 41 to show that the Therapist’s rates are reasonable and appropriate under the circumstances and award SLT services at that rate. 42
40 From January 2023, when the Therapist began providing services (Ex. D) to May 2023, the date of the Student’s progress report (Ex. F). 41 The Parent’s other evidence addressed by DOE (a scarcity of providers, the Therapist’s phone calls to other service providers) does not necessarily establish the appropriateness of the Therapist’s rate and raises concerns of possible collusion. 42 I do not discount the rate based on the Therapist’s administration of individual rather than dyad SLT. As a preliminary matter, DOE never contested this issue and it is undisputed that the Student’s school located only one SLT provider after a four-month-long search. On this record, based on the Therapist’s credited testimony that dyad SLT in a yeshiva setting is largely infeasible due to a lack of similarly situated special education students, I find that to require dyad administration or to discount services would likely result in the Student’s loss of SLT in the first instance.
ORDER
Based upon the above Findings of Fact, it is HEREBY:
1. ORDERED, that the Student is entitled to receive two (2) weekly 30-minute sessions of speech-language therapy administered bilingually in Yiddish for the 2022-2023, 10- month school year.
2. FURTHER ORDERED that DOE shall fund the Student’s speech-language therapy for the 2022-2023, 10-month school year, at a rate not to exceed $150 per 30-minute session and shall issue payment directly to the Student’s Speech-Language Therapist, [REDACTED], within 30 days of satisfactory proof of services rendered, as determined by DOE’s Implementation Unit.
3. FURTHER ORDERED, that the Student is entitled to receive two (2) weekly 30- minute sessions of occupational therapy administered in a dyad setting for the 2022- 2023, 10-month school year.
4. FURTHER ORDERED that DOE shall fund the Student’s occupational therapy for the 2022-2023, 10-month school year, at market rate to be determined by DOE’s Implementation Unit and shall issue payment directly to the provider of the Parent’s choosing within 30 days of satisfactory proof of services rendered, as determined by DOE’s Implementation Unit. SO ORDERED. DATED: July 11, 2023
/s/ Roberta Wolf, Esq,
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DISTRICT EVIDENCE
Exhibit Title Date Pages
None.
PARENT EVIDENCE
Exhibit Title Date Pages A Due Process Complaint 04/13/23 3 B Notice of appearance 01/26/23 1
C IEP 08/15/22 18
D Parent and Provider Contract 01/02/23 1 E Provider affidavit 06/09/23 2 F Provider progress report 05/29/23 3 G Parent affidavit 06/09/23 2
Footnotes
[2] Ex. A, C.
[3] Ex. A, G. 4 Id.
[5] Tr. p. 47 lines 18-25. Tr. p. 48 line 1.
[10] Tr. p. 18 lines 6-8.
[11] Ex. D. The contract obliges the Parent to pay for services not funded by DOE. Id.
[12] Tr. p. 18 lines 23-25. 13 Ex. E.
[14] Ex. E; Tr. p. 30 lines 22-25; p. 46 lines 11-14.
[15] Ex. E; Tr. p. 31 lines 1-3. Ex. E; Tr. p. 32 lines 22-25; p. 33 lines 1-7; p. 41 lines 1-7; p. 42 lines 15-25.
[17] Tr. p. 31 lines 11-25.
[18] Tr. p. 38 lines 16-24; p. 41 lines 10-15.
[19] Tr. p. 37 lines 17-20.
[20] Tr. p. 38 lines 6-15.
[21] Ex. F; Tr. p. 42 lines 15-25; p. 43 lines 1-10.
[23] Board of Education v. Rowley, 458 U.S. 176, 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[26] Rowley, 458 U.S. at 203.
[27] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06- 029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9. Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[29] See, e.g., Application of a Student with a Disability, Appeal No. 21-068.
[30] Tr. p. 48 lines 17-25; p. 49 lines 1-15. 31 Id. 32 See Application of a Student with a Disability, Appeal No. 22-054 (June 22, 2022) at pg. 3 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]). 33 Application of a Student with a Disability, Appeal No. 20-115 (citing E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 [2d Cir. 2014] (holding that equitable considerations allow for direct payment for tuition where the parents were legally obligated to make payments but had not done so due to a lack of financial resource)).