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Special Education Law
DECISIONParent PrevailedIHO Case No. 247445

New York City Department of Education, Impartial Hearing Decision

July 28, 2023·Ginger James·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 598407 – NYC: 247445

FINDINGS OF FACT AND DECISION

Case Number: 247445 Student’s Name: REDACTED Service District: REDACTED Impartial Hearing Officer: Ginger James Date of Filing: April 14, 2023 Hearing Requested by: Parent Date of Hearing: July 6, 2023 Record Close Date: July 24, 2023 Date of Decision: July 28, 2023 Time Sensitive: Yes Case No. 247445

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 16, 2023

REDACTED, Legal Assistant at Parent’s Attorneys’ Firm — Student

For the New York City Department of Education: — Student

REDACTED, Esq., District Representative — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 14, 2023

REDACTED, Esq., Parent’s Attorney #1 — Student

For the New York City Department of Education: — Student

REDACTED, Esq., District Representative — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 6, 2023

REDACTED, Esq., Parent’s Attorney #2 — Student

REDACTED, — Parents

REDACTED, Owner, SLT Provider Agency — Student

For the New York City Department of Education: — Student

REDACTED, Esq., District Representative — Student

BACKGROUND AND POSITIONS OF THE PARTIES

Parent, 1 through counsel, filed a Due Process Complaint (“DPC”) on or about April 14, 2023. 2, 3 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. Specifically, Parent alleges that the District failed to: convene an Individualized Education Program (“IEP”) Team meeting prior to the start of the 2022-2023 school year; recommend a proper placement and services; and implement the services contained in an Individualized Education Services Program (“IESP”) dated September 18, 2019 (“the September 2019 IESP”) (Ex. A-2; Tr. dated 7/6/2023, pp. 41-42). Parent further asserts that they were unable to locate service providers that would accept the “low standard rate offered by the DOE” and located providers to administer services at the “providers’ prevailing rate” (Ex. A-2; Tr. dated 7/6/2023, pp. 41-42).

Regarding relief, Parent seeks: 1) a finding that the failure of the DOE to convene and recommend placement or services is a denial of FAPE; 2) an Order that the DOE continue to fund the program outlined in the September 2019 IESP, consisting of Special Education Teacher Support Services (“SETSS”) to be provided in a group three periods per week to be administered in REDACTED; Speech-Language Therapy (“SLT”) to be provided individually two times per week for 30 minutes

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 On September 8, 2022, Parent had filed a DPC, pursuant to Case Number 235394, related to the same school year and alleging the same claims (PHC Tr. dated 5/16/2023 pp. 5-6; SC Tr. dated 6/14/2023, pp. 24-25). On or about December 9, 2022, the matter was withdrawn without prejudice (PHC Tr. dated 5/16/2023 pp. 5-6). 3 Between appearances in this matter, OATH engaged transcription services from a different provider. Accordingly, the full transcript is not consecutively paginated. References to the transcript from the PreHearing Conference conducted on May 16, 2023 are denoted “PHC Tr. dated 5/16/2023 p.” References to the transcript from the Status Conference conducted on June 14, 2023 are denoted “SC Tr. dated 6/14/2023 p.” References to the transcript from the Due Process Hearing conducted on July 6, 2023 are denoted “Tr. dated 7/6/2023 p.”

to be administered in REDACTED; and Occupational Therapy (“OT”) to be provided individually two times per week for 30 minutes to be administered in English; 3) an Order that the DOE fund a bank of compensatory hours for all services not provided during the 2022-2023 school year; 4) an award of attorney’s fees and expenses; and 5) any other relief that may be just and proper (Ex. A-2, 3; Ex. B-9; Ex. D-1; Tr. dated 7/6/2023, pp. 41-42). Parent seeks an order requiring the District to fund all services by issuing payments to providers of Parent’s choosing at “the providers’ prevailing rate” (Ex. A-3; Ex. E-2; Tr. dated 7/6/2023, p. 42). 4, [5]

District Representative does not contest Student’s entitlement to the services recommended in the IESP or that the parentally-selected services are appropriate (Tr. dated 7/6/2023, p. 69). Further, they do not argue that the rates in question are unreasonable (Tr. dated 7/6/2023, p. 69). However, District Representative contends that Parent is not entitled to funding for SLT provided by SLT Provider Agency because Parent failed to prove that they are obligated to pay SLT Provider Agency for those services (Tr. dated 7/6/2023, pp. 69-70).

I find that the DOE failed to provide 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. For reasons described more fully below I am ordering the District to: 1) fund SETSS at a “reasonable market rate” not to exceed $165 per hour instead of at $195 per hour as requested by Parent; 2) fund SLT at a “reasonable market rate” not to exceed $270 per hour instead of at $300 per hour as requested by Parent; and 3) fund a bank of 35 hours of compensatory OT to be funded as reimbursement to Parent at the “standard rate” the District pays for such services. As more fully described below, I am ordering that SETSS and SLT be reimbursed at rates lower than those requested and am diminishing the bank of OT services the District is to fund to account for 4 In the DPC, Parent requested that SETSS be funded at the “providers’ prevailing rate” (Ex. A-3). Through their affidavit, Parent requested funding for SETTS and SLT at the “providers’ prevailing market rates” (Ex. D-2). Parent sought funding for OT, but did not request a specific rate (Ex. D-3). At the hearing, Parent’s Attorney #2 requested funding for SETSS and SLT at “the reasonable market rate,” which they maintain is the same as the “providers’ prevailing market rate” (Tr. dated 7/6/2023, p. 42), and sought funding for the “other related services” (referring to OT) at the “standard rate” (Tr. dated 7/6/2023, p. 42).

Parent’s failure to provide timely service of Ten Day Notice (“TDN”). In addition, given that the most recent IESP is almost four years old, I am ordering that, unless they have done so already, the District offer to conduct a triennial evaluation and that the CSE reconvene to determine Student’s continued eligibility for special education and/or related services, and if eligible, to develop a current IESP or IEP in accordance with the IDEA and State law. I decline to award attorney’s fees and expenses.

PROCEDURAL HISTORY

As of April 14, 2023, the date of the filing of the DPC, Student was attending “Private School” for their 6th grade year (Ex. J-1).

After the filing, the Resolution Period began. It ended on May 14, 2023, with no meeting held or resolution reached (PHC Tr. dated 5/16/2023 p. 5).

On April 14, 2023, I was appointed Impartial Hearing Officer (“IHO”) for this case.

On May 16, 2023, Legal Assistant at Parent’s Attorneys’ Firm (“Legal Assistant”) and District Representative met with an OATH IHO for a Settlement Conference and thereafter met with me for a Pre-Hearing Conference (“PHC”).[6] At the PHC, Legal Assistant and District Representative discussed the possibility of settlement (PHC Tr. dated 5/16/2023 pp. 5-9), before clarifying the issues to be addressed, remedies sought, and number of witnesses expected (PHC Tr. dated 5/16/2023 pp. 10-12). District Representative stated that they would not be presenting any witnesses (PHC Tr. dated 5/16/2023 p. 11), nor raising legal issues such as June 1st notice (PHC Tr. dated 5/16/2023 p. 12). I immediately conducted a Pendency Hearing (PHC Tr. dated 5/16/2023 pp. 12-16). I scheduled the Due Process Hearing (“DPH”) for June 14, 2023 (PHC Tr. dated 5/16/2023 pp. 9, 16).

On May 16, 2023, the same day as the PHC, I issued an Order on Pendency (IHO Ex. I).

On June 14, 2023, Parent’s Attorney #1 and District Representative appeared before me. I granted a request from Parent’s Attorney #1 to adjourn the hearing due to both witness unavailability and delayed disclosure (SC Tr. dated 6/14/2023, pp. 22-23). I also granted a joint request to extend the compliance date (SC Tr. dated 6/14/2023, pp. 23-25). District Representative stated that they would not be presenting a case (SC Tr. dated 6/14/2023, p. 24), and I rescheduled the DPH for July 6, 2023 (SC Tr. dated 6/14/2023, pp. 24-26).

On July 6, 2023, Parent’s Attorney #2 and District Representative (“the Parties”) appeared before me for the DPH. Parent’s Attorney #2 confirmed the scope of the issues to be addressed and clarified that they were seeking an “enhanced rate” for SETSS and $300 per hour for SLT, but were not seeking enhanced rates for OT (Tr. dated 7/6/2023, pp. 34-35). District Representative did not proffer any exhibits (Tr. dated 7/6/2023, p. 36). Parent’s Attorney #2 submitted Exhibits A through J, which included affidavits by Parent (Ex. D), Supervisor of Special Education Services at Provider Agency (“Supervisor”) (Ex. G), and Owner of SLT Provider Agency (“Owner”) (Ex.

H) (Tr. dated 7/6/2023, pp. 36-39). District Representative had no objection to their introduction, and I admitted all exhibits into evidence (Tr. dated 7/6/2023, pp. 38-39). District Representative declined to present witnesses (Tr. dated 7/6/2023, pp. 39-40). District Representative presented an opening statement (Tr. dated 7/6/2023, pp. 40-41), followed by Parent’s Attorney #2 (Tr. dated 7/6/2023, pp. 41-42). Initially, District Representative stated that they did not wish to crossexamine any of Parent’s witnesses (Tr. dated 7/6/2023, pp. 42-43). Parent testified through the written direct testimony (Ex. D), as well as through questioning by me (Tr. dated 7/6/2023, pp. 45-

50) and by District Representative (Tr. dated 7/6/2023, pp. 50-51). Owner testified through the written direct testimony (Ex. H), and live questioning (Tr. dated 7/6/2023, pp. 52-66). Neither District Representative nor I had questions for Supervisor (Tr. dated 7/6/2023, pp. 42-43, 66-68). District Representative presented a closing statement (Tr. dated 7/6/2023, pp. 69-70), followed by Parent’s Attorney #2 (Tr. dated 7/6/2023, pp. 70-71). During their closing statement, Parent’s Attorney #2 referenced the Statute of Frauds (Tr. dated 7/6/2023, p. 70). In response to my request, Parent’s Attorney #2 agreed to email me the specific statute to which they referred (Tr. dated 7/6/2023, p. 71).

On July 7, 2023, Parent’s Attorney #2, via email, provided me with the requested statute, stating that the law “outlines all the types of agreements that are required to be in writing, none of which pertain to the agreement at issue in the present matter” (IHO Ex. II).

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 was identified by the CSE as a student with Speech or Language Impairment (Ex. B-1). When last assessed, Student’s receptive, expressive and pragmatic skills were below expected levels and affected Student’s academic functioning (Ex. B-5). Student still experiences difficulties in many academic and social emotional areas, and requires a lot of extra assistance (Ex. D-1). Student is making progress with SETSS and SLT and requires the supports they provide to continue improving and to remain in a “mainstream placement” (Ex. D-1; Ex. G-3; Ex. H-2; Ex. J-3).

On September 18, 2019, the CSE convened to determine Student’s initial eligibility for services through the CSE and, if eligible, to develop an IESP for the 10-month 2019-2020 school year (Ex. B-1, 11). Student was to enter the 3rd grade for that upcoming school year (Ex. B-2). Student is bilingual, with their dominant language REDACTED (Ex. B-2). A Speech Evaluation determined that they exhibited “age-appropriate receptive langue skills” (Ex. B-2). For example, Student could comprehend basic concepts, make logical associations of related words and comprehend stories (Ex. B-2). However, Student demonstrated certain deficient expressive language skills.

For example, Student formulated complex sentences when provided with a picture and a specific word and used grammar appropriately (Ex. B-2). However, Student had difficulty providing an age-appropriate narrative (Ex. B-2). Additionally, Student demonstrated “mild to moderate stuttering,” “characterized by repetition, hesitations and interjections” (Ex. B-2). An OT Evaluation revealed that Student could not effectively grip a pencil and could only write 12 out of 26 letters (Ex. B-2). Student demonstrated poor letter formation, alignment and spacing (Ex. B2). Student was assessed in the “Below Average” range in the Test of Visual-Motor Integration (Ex. B-2). Student could not draw most of the designs, and the designs lacked attention to detail and were drawn immaturely (Ex. B-2). Student’s cognitive intellectual abilities were assessed in the “Low Average” range (Ex. B-3). Math skills, although a relative strength, were below grade level, and word reading, phonological decoding, and reading comprehension were “significantly undeveloped” (Ex. B-3). Although Student was able to identify and write the REDACTED alphabet, they could only recite part of the English alphabet and struggled to write a few letters (Ex. B-3). Parent’s concerns included that Student “basically knows what [they] know[] through memory,” that Student was performing “way below” their age level, was reading very slowly, and that their spelling was “way below” average (Ex. B-3). Other areas of concern included: selfregulation; following multi-step directions; sensory motor processing, including proprioceptive, kinesthetic, oral, tactile, ocular awareness and motor planning; and hand skills (Ex. B-4). Parent was also concerned about Student’s frequent tripping, lack of coordination and slow movement (Ex. B-5). Although social emotional areas “appear[ed] to be within acceptable ranges,” Parent expressed concern about Student’s ability to socialize with peers, and explained that Student was very sensitive to criticism, could not find words to express themselves and stuttered (Ex. B-4, 5).

As a result, the CSE developed an IESP recommending SETSS to be provided in a group three periods per week to be administered in REDACTED; SLT to be provided individually two times per week for 30 minutes to be administered in REDACTED; and OT to be provided individually two times per week for 30 minutes to be administered in English (Ex. B-9; Ex. D-1).

The CSE has not convened since that time, and thus, did not convene in advance of the 2022-2023 school year (Ex. A-2; Tr. dated 7/6/2023, pp. 45-46). The District has failed to provide or to fund any special education and related services to Student for the 2022-2023 school year (Ex. A-2).

Student and Parent reside in New York City and Student attended Private School for the 20222023 school year (Ex. A). Private School is located within the geographic boundaries of the DOE.

On September 2, 2022, Parent, through Parent’s Attorney, sent the District a TDN (Ex. C; Ex. D2).[7] Pursuant to the TDN, Parent “consent[ed] to all services recommended on [the September 18, 2019] IESP being implemented by the DOE” (Ex. C-2). Parent further relayed that they were unable to locate SETSS and related service providers to administer services at the District’s “standard rate,” and therefore, Parent would implement the IESP on their own and seek reimbursement or direct payment from the District (Ex. C-2). Parent asked the District to respond if the District had any alternative options (Ex. C-2). The District failed to respond (Ex. D-2).

Provision of SETSS The District had not implemented any services for Student (Tr. dated 7/6/2023, pp. 40, 69). Parent attempted to locate a SETSS provider by calling providers found on a list on the District’s website (Ex. D-2). None of them were available to administer services to Student (Ex. D-2). Parent contacted Provider Agency after receiving recommendations from friends (Tr. dated 7/6/2023, p. 46), but could not recall when they reached out to Provider Agency for services (Tr. dated 7/6/2023, p. 46).

Provider Agency had been providing three hours of SETSS per week to Student for the 2022-2023 school year (Ex. D-2; Ex. G-2).[8] Student’s SETSS were provided at Private School (Ex. G-2). Although Student was recommended to receive group SETSS, Provider Agency had been providing the service in a 1:1 format, outside of the classroom (Ex. G-2; Ex. J-1). These sessions were individualized and included specialized instruction (Ex. G-2). For example, targeting ELA skills with multiple modalities including choral reading and explicit instruction (Ex. J-3).

Student’s SETSS were being administered by Direct Provider (Ex. G-2). In February 2022, NYS issued an Internship Certificate to Direct Provider authorizing them to teach students with disabilities from birth through Grade 2 (Ex. G-2; Ex. I-1). Although Direct Provider is a “bilingual REDACTED provider” (Ex. G-2), they do not hold a Bilingual Education Extension certificate issued by NYS (Ex. I-1). In addition to providing 1:1 service for Student, Direct Provider would prepare for sessions, create goals, write progress reports and meet with teachers and parents (Ex. G-2). Supervisor oversaw Direct Provider’s work (Ex. G-2).

Provider Agency created goals for Student, and measured Student’s progress through quarterly assessments, meetings between the provider and staff, direct observations and daily session notes (Ex. G-2, 3). Although Provider Agency testified through their affidavit that Student had been making progress with the SETSS (Ex. G-3), it is unclear from the Progress Report what progress had been made (Ex. J).

Provider Agency charges $195 per hour for SETSS (Ex. G-1). A portion of the rate charged funds: 1:1 supervision; educational resources and support; professional development and materials; employment taxes; administrative costs; and overhead costs (Ex. G-2). Professional development focuses on special education teaching methods and research-based teaching strategies (Ex. G-2).

On August 9, 2023, Parent signed a contract stating that Parent is “financially responsible to pay for the [SETSS] services provided by [Provider Agency]” during the 2022-2023 school year (Ex. D-2; Ex. E). The contract does not document the rate for those services (Ex. G). Parent did not know why the rate was not in the contract they signed, and thought it might be because they were not sure who would be providing SLT (Tr. dated 7/6/2023, pp. 47-48). Parent could not recall if they were given other documents about the rate for SETSS (Tr. dated 7/6/2023, p. 48), but remembered discussing the rate, knew that it was $195, and recalled signing the contract (Tr. dated 7/6/2023, pp. 48-49). Parent seeks direct funding because it would be an “extreme financial hardship” for Parent to pay for the services, requiring them to seek “outside financial assistance” to pay for them (Ex. D-2).

Provision of SLT At some point, Parent contacted SLT Provider Agency about administering SLT to Student (Ex. D-2). SLT Provider Agency is owned by Owner (Tr. dated 7/6/2023, pp. 53-54). Owner provided SLT two times per week for 30 minutes each to Student during the 2022-2023 school year (Ex. D2; Ex. H-2). 9 Owner personally administered those services in “direct 1:1 pullout sessions” (Ex. H-2; Tr. dated 7/6/2023, pp. 57, 61). Owner holds a Bachelor of Science in Communicative Disorders and a Master’s Degree in Communication Disorders (Ex. H-1). Owner is certified in DIR/Floortime and Foundational Capacities for Development, is a certified Orofacial Myologist and is a certified VitalStim provider (Ex. H-1). Owner is also a Feuerstein Cognitive Rehabilitation specialist (Ex. H-1). Owner has been working as a Speech-Language Pathologist for over 11 years, and has experience “working with children with neurological disorders and developmental delays resulting in language disorders and/or cognitive impairments and/or unintelligible speech” (Ex. H-1). Although Owner holds a Speech and Language Disabilities Professional Certificate issued by NYS on September 1, 2012, they do not appear to be registered with the State currently (Ex. I-2).

Owner measured Student’s progress through quarterly assessments and “consistent meetings with teachers and school staff” (Ex. H-2). Student had been making progress with the SLT (Ex. H-3). Specifically, Student has a lisp so Owner works with Student on speech (referring to sounds) (Tr. dated 7/6/2023, pp. 54-55). Student had been learning to control the airstream as it leaves their mouth, where to place their tongue for articulation and how to focus on saying sounds correctly, such as “ch” versus “sh,” “ts” at the end of a word, and “gi” as in giraffe (Tr. dated 7/6/2023, pp. 55-56). Owner did not use a specific methodology, but an “accumulation of all [Owner’s] experience” (Tr. dated 7/6/2023, p. 56).

Owner’s affidavit was affirmed on June 28, 2023, after the 2022-2023 school year had ended (Ex. H).

In terms of language, Owner worked with Student on both receptive and expressive language skills (Tr. dated 7/6/2023, p. 54). Owner determined that Student’s ability to process information is deficient (Tr. dated 7/6/2023, p. 54). Student has difficulty sequencing stories, events and thoughts (Tr. dated 7/6/2023, p. 54). Student reads slowly and tends to lose focus (Tr. dated 7/6/2023, p. 54). Owner used “a lot of the Feuerstein program” which acknowledges “how a student takes in information, elaborates on the information, and . . . the output of information” (Tr. dated 7/6/2023, pp. 56, 57).

Although Owner issues progress reports (Tr. dated 7/6/2023, p. 59), Parent did not proffer any. Through their work with Owner, Student can say words more clearly, including the “s” and “sh” sounds in isolation (Tr. dated 7/6/2023, pp. 59-60). Student also learned how to “keep focus extended while [they are] trying to figure out a task that requires language” (Tr. dated 7/6/2023, p. 60). For example, Student slows down while sequencing a story and describing it (Tr. dated 7/6/2023, p. 60). When looking at a picture card, Student will slow down, take in the information, determine what is going on and make inferences (Tr. dated 7/6/2023, p. 60). Student “greatly improved” in taking in information, making inferences, elaborating, and determining if information is accurate or if data is missing (Tr. dated 7/6/2023, p. 60). Student’s ability to explain and share information improved as well (Tr. dated 7/6/2023, pp. 60-61).

Owner charges $300 per hour for SLT (Ex. H-2). They based this rate on the bilingual nature of the services (Tr. dated 7/6/2023, p. 61), and because six of their colleagues charge the same rate (Tr. dated 7/6/2023, pp. 61, 63). Owner charges $300 for all 34 students for whom they provide services (Tr. dated 7/6/2023, p. 64). The rate funds: supplies; employment of a secretary; rent; and malpractice and health insurance (Tr. dated 7/6/2023, p. 61). Even though Owner provides services themselves, Owner incurs training costs consisting of continuing education which Owner requires to “to be able to deliver cutting-edge information and techniques” to assist their clients (Tr. dated 7/6/2023, pp. 61-62).

Parent testified through their affidavit that they signed contracts obligating them to pay for services “in the event that the DOE does not pay these agencies for services provided” (Ex. D-2). Parent did not offer a contract for the SLT into evidence. Instead, Parent proffered an “Acknowledgment of Liability” signed on April 15, 2023 (Ex. F). The “Acknowledgment of Liability” states, inter alia, that Parent is liable to pay SLT Provider Agency $300 per hour for SLT “in the event that the [IHO] does not issue a ruling for the full amount requested” (Ex. F). Although the document references Student’s name and date of birth, it lists the case number assigned from the previous filing (Ex. F). It does not reference the school year or time period during which those services were provided (Ex. F). The document states that the Acknowledgement is an “enforceable legal binding agreement in the State of New York” (Ex. F). It further states that the rates charged by Provider Agency are “significantly higher than the standard rate that the [DOE] typically reimburses for said services” (Ex. F). The Acknowledgement is not on any type of letterhead nor is it countersigned by anyone or notarized (Ex. F). Although Parent remembered signing the Acknowledgment of Liability for SLT Provider Agency (Tr. dated 7/6/2023, pp. 49, 50), Parent could not recall who gave it to them because “we had so many people finding providers” (Tr. dated 7/6/2023, p. 49).[10] Parent could not recall if they signed any other contracts with SLT Provider Agency, but did recall signing other documents with them (Tr. dated 7/6/2023, p. 51).

Owner testified that Parent signed “the contract of liability with [SLT Provider Agency] in the beginning of last [school] year, that they are responsible for payment” (Tr. dated 7/6/2023, p. 57). Parent would have signed it in late August or the beginning of September of 2022, prior to the provision of any services (Tr. dated 7/6/2023, pp. 57, 64). Owner was not sure what had happened in this case (Tr. dated 7/6/2023, pp. 64-65), but explained that “[t]here is no need to sign the documents again, unless the parent misplaced it or lost it. Perhaps that was what happened in this case” (Tr. dated 7/6/2023, pp. 64-65). Owner did not know about the “Acknowledgment of Liability” (Tr. dated 7/6/2023, pp. 58-59). Regarding signing a contract or acknowledgement of liability, Owner explained, “[Parent] should have. All of my parents signed. I think she did.” (Tr. dated 7/6/2023, p. 65). Owner could not recall if Parent signed an Acknowledgment of Liability in April of 2023 (Tr. dated 7/6/2023, pp. 65-66). 11

As with the SETSS, Parent requests direct funding of SLT 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. D-2).

Provision of OT Although the District recommended that Student receive OT as an individual service two times per week for 30 minutes, the District failed to provide those services (Tr. dated 7/6/2023, pp. 40, 69). Parent is taking Student to OT “privately out of pocket” (Tr. dated 7/6/2023, pp. 46-47). Parent did not testify to how often those services are being provided or at what rate. Parent seeks funding for OT at the “standard rate” (Tr. dated 7/6/2023, p. 42).

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 Educ. 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.

I find that the District failed to provide Student a FAPE on an equitable basis for the 2022-2023 school year. The District conceded Student’s entitlement to the services recommended in the September 2019 IESP and that the District did not implement those services (Tr. dated 7/6/2023, pp. 40, 69). Accordingly, I find that the District failed to prove that it provided Student a FAPE on an equitable basis for the 2022-2023 school year.

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 District had the obligation to provide services to Student in conformity with the IESP. See Educ. Law§ 3602-c(2)(a), (b)(l). In failing to do so, the District 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 District 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.

Finding that the District failed to provide Student a FAPE on an equitable basis, I turn to the appropriateness of the services Parent selected.

Appropriateness of Parentally Selected Services- SETSS District Representative has not contested the appropriateness of the services selected by Parent. Overall, I find both the SETSS and SLT services appropriate.

Initially, as I have determined that the District failed to implement the services it recommended in the September 2019 IESP, I find that Parent was left with no option but to secure all services for Student. 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 is beneficial in a case like this, where a parent selects services for their child after the District fails to implement the IESP.

Parent submitted a “Quarterly Progress Report” from the SETSS Direct Provider dated January 25, 2023, which documents Student’s then-present level of functioning and delineates Student’s relative strengths and weaknesses (Ex. J). I find that the report reflects multiple specific needs in areas including Math, Reading, Writing, Language, Social/Emotional Functioning and Interpersonal Relationships as identified by Direct Provider (Ex. J). Some of the identified needs correspond with needs delineated in the September 2019 IESP, such as deficiencies in expressive language skills and handwriting skills (compare Ex. B-2, 3 with Ex. J). Direct Provider enumerated specific goals tailored to Student’s needs in Math, Reading and Writing (Ex. J-1-2). Direct Provider also explained that they would focus on English Language Arts (“ELA”) skills, using multiple modalities including choral reading and explicit instruction (Ex. J-3).

Although this report is entitled, “1st Quarterly Progress Report,” I cannot determine whether progress was made. The Report does not include baseline data or examples of specific progress for me to make such a finding. However, I do find that progress is only one factor to be determined, and that in light of my finding that Provider Agency is specifically tailoring instruction to meet needs that were identified in the September 2019 IESP and by Direct Provider, I find that the SETSS were appropriate.

I also find the SLT appropriate. Owner specifically worked with Student on their speech, teaching Student how to articulate and focus on saying sounds correctly, such as “ch” versus “sh,” “ts” at the end of a word, and “gi” as in giraffe (Tr. dated 7/6/2023, pp. 54-56). Owner also worked with Student on receptive and expressive language skills (Tr. dated 7/6/2023, p. 54). Owner identified specific areas of weakness and used a specific methodology to address those areas (Tr. dated 7/6/2023, pp. 54, 56, 57).

Moreover, I find that Student made progress with SLT. Student can say words more clearly and “keep focus extended while [they are] trying to figure out a task that requires language” (Tr. dated 7/6/2023, pp. 59-60). Student improved in their ability to take in information, make inferences, elaborate, determine if information is accurate or if data is missing, provide explanations and share information (Tr. dated 7/6/2023, pp. 60-61).

In sum, I find that Parent proved the appropriateness of the services being administered by Provider Agency and SLT Provider Agency.

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. 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. 21183 [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, Funding of SETSS In the DPC and through their affidavit, Parent requested that SETSS be funded at the “providers’ prevailing rate” (Ex. A-3; Ex. D-2). At the hearing, Parent’s Attorney #2 requested funding for SETSS at “the reasonable market rate,” which they maintain is the same as the “providers’ prevailing market rate” (Tr. dated 7/6/2023, p. 42). Provider Agency charges $195 per hour for SETSS (Ex. G-1). For the reasons described below, I find that $195 per hour is not a reasonable rate and am ordering that Provider Agency be paid at a “reasonable market rate” not to exceed $165 per hour.

The District has not contested the rate for SETSS in this matter (Tr. dated 7/6/2023, p. 69). Nor did District Representative proffer any evidence to demonstrate that the requested rates are unreasonable. They also declined to cross-examine Supervisor at Provider Agency (Tr. dated 7/6/2023, pp. 42-43, 66-68).

I find that on August 9, 2023, Parent signed a contract stating that Parent is “financially responsible to pay for the [SETSS] services provided by [Provider Agency]” during the 2022-2023 school year (Ex. D-2; Ex. E).[12] Additionally, through their affidavit testimony, Supervisor explained that a portion of the $195 rate charged funds: 1:1 supervision; educational resources and support; professional development and materials; employment taxes; administrative costs; and overhead costs (Ex. G-2), with professional development focusing on special education teaching methods and research-based teaching strategies (Ex. G-2). Nonetheless, I find that a slight reduction in the rate is warranted in this matter.

This slight reduction is warranted, in part, due to the qualifications of the instructor. I find that Direct Provider had only been certified by NYS for about seven months prior to working with Student (Ex. G-2; Ex. I-1). Direct Provider received their certification in February 2022, and taught Student pursuant to an Internship Certificate (Ex. G-2; Ex. I-1). Moreover, that Internship Certificate only authorized Direct Provider to teach students with disabilities from birth through Grade 2 (Ex. G-2; Ex. I-1). Student was on a 2nd grade level in Reading skills (Ex. J-2), but was enrolled in the 6th grade for the 2022-2023 school year (Ex. J-1). Further, although Supervisor testified in their affidavit that Direct Provider is a “bilingual REDACTED provider” (Ex. G-2), Direct Provider does not hold a Bilingual Education Extension certificate issued by NYS (Ex. I1).

In determining my award, I also find that although Student was recommended to receive group SETSS, Provider Agency had been providing the service in a 1:1 format, outside of the classroom (Ex. G-2; Ex. J-1). Parent offered no testimony to explain why services were provided in a 1:1 format instead of in a group.

Finally, the reduction is warranted in light of Parent’s failure to provide a timely TDN. NYC Public School students began on September 8, 2022.[13] Accordingly, I find that Parent was to have provided the District notice on August 24, 2022, ten business days prior to September 8, 2022. As Parent’s TDN was served on September 2, 2022, Parent deprived the District of the opportunity to remediate any issues raised in that notice (Ex. C; Ex. D-2).

For all of these reasons, I find a reduction of the SETSS rate from $195 per hour to $165 per hour, roughly a 15% reduction, reasonable.

Equitable Considerations- Existence of Parent’s Obligation to Pay for SLT The funding of SLT involves a completely different set of concerns. District Representative contends that Parent is not entitled to direct funding for SLT because Parent failed to prove that they are obligated to pay SLT Provider Agency for those services (Tr. dated 7/6/2023, pp. 69-70). More specifically, District Representative asserts that the “only concern” they had was the “Acknowledgment of Liability” and Parent’s obligation to pay for SLT (Tr. dated 7/6/2023, p. 69). Per District Representative, there was no indication that the document signed in April 2023 was part of the contract with Owner, and it was signed “following the filing of the prior DPC that was withdrawn, which would also indicate . . . that this was not part of any original contract” (Tr. dated 7/6/2023, pp. 69-70). Further, “[P]arent’s recollection was a bit foggy” on this issue (Tr. dated 7/6/2023, pp. 69-70).

By contrast, Parent’s Attorney #2 contends that Parent expressed that they understood their obligation to pay for the services (Tr. dated 7/6/2023, p. 70). Further, citing to N.Y. Gen. Oblig. Law § 5-701, Parent’s Attorney #2 claims that “contracts for services need not be in writing in order to be enforceable” (Tr. dated 7/6/2023, p. 70; IHO Ex. II). Finally, they argue that I should find that Parent is obligated to pay for the SLT because Owner testified that “parents are obligated to pay for the services prior to the provision of these services” (Tr. dated 7/6/2023, pp. 70-71). As a threshold matter, I must determine whether Parent is obligated to pay for the SLT.

While acknowledging that Parent is not required to produce a contract, but rather is required to produce proof of their legal obligation to pay for SLT 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 for two 30minute SLT sessions per week, at a rate of $300 per hour, which, for a 36-week school year, amounts to a contract worth $10,800. More importantly, they testified, through their affidavit, that they signed contracts obligating them to pay for services “in the event that the DOE does not pay these agencies for services provided” (Ex. D-2). Yet, Parent did not produce the SLT contract. Moreover, although Owner 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.

The issue then, is whether Parent put forth sufficient evidence, through documents and/or testimony, to prove that they had a legal obligation to pay for SLT. At the outset, Parent and Owner each testified to their belief that a contract existed. As noted, Parent believed that they had signed a contract (Ex. D-2). Parent could not recall if they signed any other contracts with SLT Provider Agency, but did recall signing other documents with them (Tr. dated 7/6/2023, p. 51). Further, Owner testified that Parent signed “the contract of liability with [SLT Provider Agency] in the beginning of last [school] year, [and] that they are responsible for payment” (Tr. dated 7/6/2023, p. 57).[14] Per Owner, Parent would have signed it in late August or the beginning of September of 2022, prior to the provision of any services (Tr. dated 7/6/2023, pp. 57, 64). When pressed on the issue of whether Parent signed a contact or acknowledgement of liability, Owner further testified, “[Parent] should have. All of my parents signed. I think she did” (Tr. dated 7/6/2023, p. 65). Owner testified that they were not sure what had happened in this case (Tr. dated 7/6/2023, pp. 64-65). Owner explained, “[t]here is no need to sign the documents again, unless the parent misplaced it or lost it,” opining, “[p]erhaps that was what happened in this case” (Tr. dated 7/6/2023, pp. 64-65). Throughout the line of questioning, Owner’s reactions to the questions reflected surprise and confusion.

In addition to the testimony, and as further evidence of their understanding that they had an obligation to SLT Provider Agency, Parent submitted an Acknowledgement of Liability signed on April 15, 2023 (Ex. F; Tr. dated 7/6/2023, pp. 65-66). Although the document lists the case number assigned from the previous filing, it does reference Student’s name and date of birth (Ex. F). The Acknowledgment of Liability states, inter alia, that Parent is liable to pay SLT Provider Agency $300 per hour for SLT “in the event that the [IHO] does not issue a ruling for the full amount requested” (Ex. F). It further states that the rates charged by Provider Agency are “significantly higher than the standard rate that the [DOE] typically reimburses for said services” (Ex. F).

I do recognize that there are problems with the Acknowledgement. It does not reference the school year or time period during which those services were provided (Ex. F). It is not on any type of letterhead nor is it countersigned by anyone or notarized (Ex. F). I am also mindful that the document states that the Acknowledgement is an “enforceable legal binding agreement in the State of New York” (Ex. F), but that Owner testified both that they did not know about the Acknowledgment of Liability (Tr. dated 7/6/2023, pp. 58-59), and that they could not recall if Parent signed an Acknowledgment of Liability in April of 2023 (Tr. dated 7/6/2023, pp. 65-66).

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 SLT. However, I find that the document provides some evidence of Parent’s understanding that they were obligated to Provider Agency. Accordingly, I find under the totality of the circumstances, including the Acknowledgment of Liability, the testimony of Parent and Owner, and Owner’s demeanor, that Parent was obligated to pay Owner, and therefore, that Parent met their burden.

Although I have found that Parent was obligated to pay Owner, I also note that Parent signed a contract with Provider Agency obligating Parent to pay for SETSS (Ex. E). Parent knew that they were obligated to pay for SETSS, and there is nothing in this record to suggest that Parent would not be obligated to pay for the SLT.

Finally, in light of my finding that Parent was obligated to pay for SLT, I do not find it necessary to address the argument of Parent’s Attorney #2 that, pursuant N.Y. Gen. Oblig. Law § 5-701, “contracts for services need not be in writing in order to be enforceable” (Tr. dated 7/6/2023, p.

70; IHO Ex. II). 15

15

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 State 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, Owner is not seeking to enforce the contract against Parent. Parent is trying to prove that they are bound by a contract. Further, Owner is not a party to the Impartial Hearing, and the District is not a party to the contract entered into by Parent and Owner. 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

Equitable Consideration- Funding for SLT Services Through their affidavit, Parent requested that SLT be funded at the “providers’ prevailing rate” (Ex. A-3; Ex. D-2). At the hearing, Parent’s Attorney #2 requested funding for SLT at “the reasonable market rate,” which they maintain is the same as the “providers’ prevailing market rate” (Tr. dated 7/6/2023, p. 42). Owner charges $300 per hour for SLT (Ex. H-2). For the reasons described below, I find that $300 per hour is not a reasonable rate and am ordering that Provider Agency be paid at a “reasonable market rate” not to exceed $270 per hour.

As with the SETSS, the District has not contested the rate for SLT in this matter (Tr. dated 7/6/2023, p. 69). Further, District Representative did not proffer any evidence to demonstrate that the requested rates are unreasonable, and did not cross-examine Owner about their rate (Tr. dated 7/6/2023, pp. 42-43, 66-68).

This slight reduction is warranted, in part, due to the Owner’s qualifications. First, Owner is not registered with NYS (Ex. I-2). Second, although Owner testified that their rate is a “bilingual rate” (Tr. dated 7/6/2023, p. 61), Owner does not hold a Bilingual Education Extension certificate issued by NYS (Ex. I-2).

As described more fully above, the reduction is also warranted in light of Parent’s failure to provide a timely TDN.

For these reasons, I find a reduction of the SLT rate from $300 per hour to $270 per hour, a 10% reduction, reasonable.

Funding of OT Hours, Including Compensatory Services for Missed OT Parent seeks funding for OT at the “standard rate” (Tr. dated 7/6/2023, p. 42). Although the CSE recommended that Student receive OT as an individual service two times per week for 30 minutes, the District did not provide those services (Ex. A-2; Ex. B-10; Ex. D-1; Tr. dated 7/6/2023, pp. 40, 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.

69). Parent is taking Student to OT “privately out of pocket” (Tr. dated 7/6/2023, pp. 46-47). Parent did not testify how many hours of OT services Student received during the 2022-2023 school year or what rate they paid for those services. As explained further below, I am ordering a bank of 35 hours of OT services, with reimbursement to Parent for OT services upon proof of payment.

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-forone 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 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 individually two 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. [16] Accordingly, Student was entitled to 36 hours of OT services. I am deducting 1 hour for the lateness of the TDN, thereby ordering a bank of 35 hours of OT.

As Parent did not provide proof of any OT services Parent secured for Student, I am ordering a bank of 35 hours to be funded at the District’s “standard rate” paid by the Implementation Unit for comparable individual OT within six months of the date of this decision. Parent may receive reimbursement at this rate upon proof of payment.

Finally, I am ordering that any OT services not utilized by Student within one year of this decision shall expire. The bank comprises 35 hours which is approximately 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.

Direct Funding to Provider Agency for SETSS and Related Services Parent seeks direct funding to Provider Agency for the SETSS and SLT 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 SETSS is not to exceed $165 per hour, and have determined that Parent is legally obligated to pay SLT Provider Agency, but have determined that the rate for SLT shall not exceed $270 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. D2). 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 the 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 reasonable, and that there is evidence that Parent is unable to pay for the SETSS and SLT, I am granting the request for direct payment to Provider Agency for SETSS and SLT Provider Agency for SLT for the 2022-2023 school year as detailed in my Order below.

RECONVENING OF THE CSE

Pursuant to Parent’s request that I order any relief deemed appropriate in this matter (Ex. A-3), and in light of the arguments made in the DPC, namely that “Parent is concerned regarding the delay in convening a new IEP meeting,” and that the September 2019 IESP is “outdated and expired” (Ex. A-2), I am ordering that the CSE reconvene to determine Student’s continued eligibility for special education and/or related services, and if eligible, to develop an IESP or IEP in accordance with the IDEA and State law.

The September 2019 IESP is now almost four years old. Going forward, this Student is entitled to an IEP or IESP that reflects Student’s current levels of performance, capabilities and needs. The District is working with an IEP that was developed when Student was entering the 3rd grade. Student is now about to enter the 7th grade.

Further, there is no evidence in the record that the District has conducted evaluations of Student since the ones conducted prior to the September 18, 2019 CSE meeting. Pursuant to 8 NYCRR § 200.4(b)(4), unless agreed upon otherwise, Students are to be evaluated every 3 years. I am aware that Parent is not seeking evaluations. Accordingly, I am ordering that, unless they have done so already, the District offer to conduct a triennial evaluation and that the CSE convene to develop a current IEP or IESP for Student.

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. 08008; 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, to the extent not already provided via Pendency, the Department of Education (“DOE”) shall fund for the 10-month 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 at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services for group SETSS within six months of the date of this Order. This “reasonable market rate” shall not exceed $165 per hour; and it is further

ORDERED THAT the DOE shall pay the provider listed above within 35 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, to the extent not already provided via Pendency, the DOE shall fund for the 10-month 2022-2023 school year, individual Speech Language Therapy (“SLT”) two times per week for 30 minutes to be administered in REDACTED by a licensed speech pathologist of Parent’s choosing at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services for individual SLT within six months of the date of this Order. This “reasonable market rate” shall not exceed $270 per hour; and it is further

ORDERED THAT the DOE shall pay the provider listed above within 35 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, to the extent not already provided via Pendency, the DOE shall fund for the 10-month 2022-2023 school year a bank of 35 hours of individual Occupational Therapy (“OT”) to be administered in English. Parent is to be reimbursed for said services upon proof of payment. Parent is to be reimbursed at the DOE’s “standard rate” paid by the Implementation Unit for comparable individual OT within six months of the date of this decision; 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 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, unless the DOE has conducted a triennial evaluation of Student since the filing of the DPC, the DOE shall seek Parent’s consent to evaluate Student within 15 days of this Order; and it is further

ORDERED that the Committee on Special Education (“CSE”) shall convene within 15 days of completion of the triennial evaluation, or within 30 days of this Order if no triennial evaluation is conducted, to consider Student’s continued eligibility for special education and/or related services, and if still eligible, to develop an IESP or IEP in accordance with the IDEA and State law; and it is further

ORDERED that until such time as the CSE convenes, the District must implement services as mandated by the September 18, 2019 IESP.

July 28, 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 Legal Assistant at Parent’s Attorneys’

Firm

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 Supervisor of Special Education

Services at Provider Agency

REDACTED Provider Agency

REDACTED Direct Provider

REDACTED Owner, SLT Provider Agency

REDACTED SLT Provider Agency

APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Exhibit Title of Document Date Number of

Pages

A Due Process Complaint (“DPC”) 04/14/2023 6

Individualized Education Services Program

B (“IESP”) 09/18/2019 12

C Ten Day Notice (“TDN”) 09/02/2022 2

D Affidavit of Parent 06/28/2023 3

Special Education Teacher Support Services

E (“SETSS”) Contract 08/09/2022 1

Speech-Language Therapy

F Acknowledgement of Liability 04/15/2023 1

G Affidavit of REDACTED 02/08/2023 3

H Affidavit of REDACTED 05/02/2023 2

I Provider Credentials 06/21/2023 2

J SETSS Progress Report 1/25/2023 3

DOE EXHIBITS

None

IHO EXHIBITS

Exhibit Title of Document Date Number of

Pages

I Order on Pendency 06/15/2023 4

II Emails Regarding Statute of Frauds 07/07/2023 2

Footnotes

[5] Parent also invoked pendency (Ex. A-2). As explained below, on May 16, 2023, I issued an Order on Pendency (IHO Ex. I).

[6] 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.

[7] Parent did not know if they signed the TDN and could not recall when it was sent (Tr. dated 7/6/2023, p. 46).

[8] Although the DPH was conducted in July, after the 2022-2023 school year had ended, the Supervisor’s affidavit was affirmed on February 8, 2023 (Ex. G).

[10] Parent could not explore this further because their computer was broken (Tr. dated 7/6/2023, p. 50). Owner did not have access to email during their testimony (Tr. dated 7/6/2023, p. 62).

[12] I further note that the contract is silent as to the rate for the SETSS (Ex. E). However, inasmuch as Parent remembered discussing, at some time, that the rate was $195 per hour (Tr. dated 7/6/2023, pp. 48-49), I have not relied upon the absence of that dollar amount to reduce the rate to be funded.

[13] See https://www.schools.nyc.gov/about-us/news//2022-2023-school-year-calendar (last visited July 27, 2023).

[14] It was clear through Owner’s testimony that they were conflating the contract that they typically have signed prior to services being rendered with the Acknowledgment of Liability Parent signed in April 2023, and further, interchangeably used the words “acknowledgement of liability” with “contract.” I have capitalized Acknowledgment of Liability where it refers to the actual document Parent signed, and have used lower case letters when referring to the generic term.

[16] See https://www.schools.nyc.gov/about-us/news//2022-2023-school-year-calendar (last visited July 27, 2023). See also generally Application of a Child with a Disability, Appeal No. 23- 033, FN 10.