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FINDINGS OF FACT AND DECISION
Case Number: 251899
Student’s Name: REDACTED
Home District: REDACTED
Service District: REDACTED
Impartial Hearing Officer: Ginger James
Date of Filing: July 19, 2023
Hearing Requested by: Parent
Date of Hearing: September 28, 2023
Record Close Date: December 1, 2023
Date of Decision: April 5, 2024
Time Sensitive: No
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 25, 2023
REDACTED, Parent’s Representative #1
For the New York City Department of Education:
REDACTED, Esq., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 28, 2023
For the Student:
REDACTED, Parent’s Representative #2
REDACTED, Parent
REDACTED, Administrator at Provider Agency
For the New York City Department of Education:
REDACTED, Esq., District Representative
BACKGROUND AND POSITIONS OF THE PARTIES
Parent,[1] through Parent’s Representative #1, filed an Impartial Hearing Request (“IHR”) on July 19, 2023.[2] Parent alleges that the New York City 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 (Ex. A). In their DPC, Parent alleges that Student was entitled to receive five periods per week of Special Education Teacher Support Services (“SETSS”) and two, 30-minute sessions of Counseling (“CO”) per week pursuant to an Individualized Education Services Program (“IESP”) dated May 27, 2020 (“the May 2020 IESP”) (Ex. A). Parent claims that, for the 2022-2023 school year, the DOE failed to implement Student’s mandated special education and related services, thereby shifting the burden of implementation onto Parent (Ex. A-1). Parent asserts that they “exerted extensive efforts” to find providers to administer services, but was unable to find anyone at the “DOE-published rates” (Ex. A-1-2). Accordingly, Parent “was forced to implement the services on [their] own by utilizing the services of an agency at enhanced rates” (Ex. A-2).
By way of relief, Parent seeks an Order providing a bank of compensatory hours of SETSS not provided to Student during the 2022-2023 school year and compelling the DOE to fund SETSS at an “enhanced market rate” of $175 per hour (Ex. A-2; Ex. F-2; Tr. 32, 38).[3], [4]
The District’s position is that Student is not entitled to services for the 2022-2023 school year because Parent failed to request those services prior to June 1, 2022 in compliance with NY Educ. Law § 3602-c.
I find that Parent failed to request services prior to June 1, 2022, which is required pursuant to NY Educ. Law § 3602-c, and therefore I decline to award funding for SETSS in this matter. Had Parent properly requested the services, I would have found that the DOE failed to offer Student a FAPE on an equitable basis for the 2022-2023 school year. I further would have found that the program Parent selected was appropriate and that equities were largely in Parent’s favor. I would have ordered direct, retrospective funding to Provider Agency for SETSS for a total of 180 hours at a rate of $157.50 per hour instead of the $175.00 per hour requested by Parent due to Parent’s failure to provide the District ten days’ notice of their intent to seek funding at an enhanced rate. Further, I would have based the relief on a 36-week school year. Although I am denying funding, I am ordering the District to seek Parent’s consent to conduct a triennial evaluation and to reconvene to determine whether Student continues to need special education and related services, and if so, to develop a new Individualized Education Program (“IEP”) or IESP for Student.
PROCEDURAL HISTORY
After the filing of the DPC, the Resolution Period began. It ended on August 18, 2023 with no Resolution Meeting held (PHC Tr. 3).
On July 20, 2023, I was appointed as the Impartial Hearing Officer (“IHO”) for this case.
On August 23, 2023, the District filed a Due Process Response (“DPR”) (PHC Tr. 3-4).
On August 25, 2023, Parent’s Representative #1 and District Representative met with a New York City Office of Administrative Trials and Hearings (“OATH”) Settlement Officer and thereafter met with me for a Pre-Hearing Conference (“PHC”).[5] At the PHC, we clarified the issues and remedies sought (PHC Tr. 4-8). District Representative did not raise as an issue whether Parent had requested services prior to June 1, 2022 (“the June 1st defense” or “the June 1st issue”). Turning to the burden of proof to be employed in this matter, Parent’s Representative #1 and District Representative discussed whether the case would proceed pursuant to the modified Burlington/Carter analysis generally employed by State Review Officers (“SROs”) at the New York State (“NYS”) Office of State Review (PHC Tr. 7-8). Parent’s Representative #1 did not “fully agree with the SRO decisions providing this framework” because this is a case where the District was required to have implemented Student’s services (PHC Tr. 8-9). According to Parent’s Representative #1, Parent did not choose to unilaterally place Student (PHC Tr. 9). Parent’s Representative #1 also noted that a decision from March of 2023 addressed the reimbursement process and direct payment (PHC Tr. 9).[6] Parent’s Representative #1 contended that the Burlington/Carter analysis only applied to this matter in a “limited fashion and, as a comparison, for lack of a better framework” (PHC Tr. 9). I explained why I had asked the question and asked if we would be “proceeding on that modified approach,” which included Parent bearing the burden on appropriateness and an analysis of equities “in terms of a ten-day notice, whether the rate is unreasonable, [and] whether the people who are administering the services are properly certified . . .” (PHC Tr. 9-10). Parent’s Representative #1 confirmed that the Parties would proceed using the modified Burlington/Carter approach (PHC Tr. 10-11). Parent’s Representative #1, District Representative and I then discussed scheduling witnesses (PHC Tr. 11-13). Parent’s Representative #1 did not request interpretation services for their witnesses. I granted a joint request to extend the compliance date (PHC Tr. 16-17, 22) and scheduled the Due Process Hearing (“DPH”) for September 28, 2023 (PHC Tr. 15-23).
On September 28, 2023, Parent’s Representative #2 and District Representative (“the Parties”) appeared before me for the DPH. After addressing preliminary matters, including the issues, remedies sought and burdens of proof, we turned to the exhibits (Tr. 31-34). District Representative did not proffer any exhibits or witnesses (Tr. 34). Parent’s Representative #2 proffered Exhibits A through G, which included a document containing the proposed direct testimony of Parent (Ex. F) and a document containing the proposed direct testimony of Administrator of Provider Agency (“Administrator”) (Ex. G) (Tr. 34-35). District Representative had no objection to proposed Exhibits A through E, and I admitted them into evidence (Tr. 35-36). District Representative did not object to the content of proposed Exhibits F and G (Tr. 36). After Parent and Administrator each attested under oath to the content of their proposed written testimonies, I admitted Exhibits F and G into evidence (Tr. 45-46, 75-76). District Representative waived the opportunity to present an opening statement (Tr. 37). Parent’s Representative #2 presented an opening statement (Tr. 37-38). Parent testified through their written testimony, cross-examination, redirect examination, and examination by me (Ex. F; Tr. 39-46; 46-60; 60-67; 67-69). During Parent’s testimony, an issue arose as to whether Parent had requested, prior to June 1, 2022, the District to provide services to Student for the 2022-2023 school year (Tr. 52-67).[7] Administrator testified through their written testimony and supplemental direct testimony, cross-examination, redirect examination, and examination by me (Ex. G; Tr. 72-75; 76; 77-78; 78-80; 80-81).
At the conclusion of Administrator’s testimony, Parent’s Representative #2 “reserved” whether they would rest because they wanted to address the June 1st issue in their closing statement and raise the “possibility of a rebuttal” (Tr. 82, 83). After hearing from Parent’s Representative #2 and District Representative (Tr. 82-83), I asked whether Parent’s Representative #2 was requesting the opportunity to present additional witnesses or evidence or if they were requesting a written closing to address their concerns (Tr. 83). Parent’s Representative #2 responded, “[a] written closing” (Tr. 83). The Parties agreed to submit their written closings by October 23, 2023 to allow time for them to receive and review the transcript (Tr. 85-86). In response to District Representative’s request for clarification as to whether Parent would be submitting any additional evidence, Parent’s Representative #2 stated, “[t]here’s no additional evidence” (Tr. 86-87). I granted the Parties’ request to extend the compliance date (Tr. 85, 87-88).
On October 11, 2023, the transcript of the DPH was emailed to the Parties (IHO Ex. I).
On October 23, 2023, at approximately 5:08 p.m., District Representative emailed their Closing Brief to me and to Parent’s Representative #2 (IHO Ex. III-12-13; IHO Ex. II).
On October 23, 2023 at approximately 6:49 p.m., Parent’s Representative #2 emailed me and District Representative to request that I allow Parent to testify further to “clarify [their] responses” (IHO Ex. III-11-12).
In a series of emails dated between October 24, 2023 and October 27, 2023, the Parties set forth their positions regarding whether Parent should be allowed to testify again and/or whether Parent’s Representative #2 should be allowed to submit a late Closing Brief (IHO Ex. III).[8]
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 both witnesses credible.
The May 2020 IESP
On May 27, 2020, the CSE convened to develop an IESP for Student (Ex. B-1, 10). Parent attended that meeting (Ex. B-11). Parent was concerned about Student’s overall academic weakness and language functioning (Ex. B-2), as well as Student’s weak interpersonal skills (Ex. B-3). Student was in 7th grade at the time (Ex. B-2). A Psychoeducational Evaluation that had been conducted on February 5, 2017 revealed that Student was assessed in the “Below Average” range in non-verbal reasoning skills and in the “Low Average” range in graphomotor skills (Ex. B-1). On the Woodcock-Johnson Tests of General Achievement-IV, Student was assessed at the 3rd percentile in Passage Comprehension, the 10th percentile in Letter-Word Recognition, and the 16th percentile in Spelling (Ex. B-1). Their highest score was in Sentence Writing Fluency at 33% (Ex. B-1). Pursuant to a SETSS report dated May 26, 2020, without support, Student was reading on a 5th grade level (Ex. B-2). They could not read for meaning or independently answer questions about what they had read, and they struggled with reading multi-syllabic words and words that “don’t follow regular rules” (Ex. B-2). It was also determined that Student was performing on a 5th grade level in Math (Ex. B-2). Student demonstrated difficulty with decimals and fractions, multi-step problems, and certain word problems (Ex. B-2). In Language, Student struggled with abstract reasoning and inferencing (Ex. B-2). Socially, it was determined that Student demonstrated “moderate levels of performance” and needed to develop “age appropriate” skills in the areas of: “trying new activities; adjusting to new situations; and persevering even when disappointed” (Ex. B-3).[9] Student demonstrated “significant delays” and needed to develop “age appropriate” skills in the following areas: making friends; exercising self-confidence; avoiding feelings of “being worthless or inferior to other children;” and “eliminating actions which are provocative,” such as “teasing others [and] deliberately doing things that are undesired by others” (Ex. B-3). The CSE classified Student as a Student with a Learning Disability and recommended the following: group SETSS to be administered five periods per week; individual CO to be administered one time per week for 30 minutes; and group CO to be administered one time per week for 30 minutes (Ex. B-1, 8; Ex. F-1, 2; Ex. G). The IESP was to be implemented on September 9, 2020 (Ex. B-1, 8).
The 2022-2023 School Year- Identification of a Provider and the Signing of the Contract
For the 2022-2023 school year, Student attended Private School for their 10th grade year (Ex. B-1; Ex. D-1; Tr. 51-52). Private School is located within the geographic boundaries of the DOE. Prior to the start of the school year, Parent had received no communication regarding “an annual IEP review meeting” and the District did not provide Student an updated IESP (Ex. F-2). Parent could not recall whether they received a list of people who could administer SETSS to Student (Tr. 69).[10] Parent did not make any calls for services other than to Provider Agency (Tr. 69).[11]
On September 13, 2022, Provider Agency began administering five hours of SETSS per week to Student as per Student’s most recent IESP, which was the May 2020 IESP (Tr. 49, 50, 76, 77; Ex. D-1; Ex. G). At the time, Parent had not yet signed a contract with Provider Agency. Provider Agency “usually make[s] the parents sign [the contract] in the beginning” (Tr. 78, 78-79). Administrator “guess[ed] it was overlooked,” but as soon as they “realized that [they] were missing it, [they] made [Parent] sign right away” (Tr. 78).[12] Per Administrator, there was “an understanding” between Parent and Provider Agency at the beginning of the school year that Provider Agency would administer services for the entire school year starting in September and that Parent would be responsible for the cost of services (Tr. 79-80). Student’s services were given in one-hour sessions and were administered until June 20, 2023 (Tr. 76).
Four months after services had begun, on January 23, 2023, Parent signed a contract with Provider Agency (Tr. 48-49, 49-50, 67-68, 77-78; Ex. C; Ex. F-2; Ex. G). No one countersigned the agreement (Ex. C). Provider Agency agreed to administer SETSS during the 2022-2023 school year in accordance with the “most-current agreed-upon IEP or IESP” (Ex. C-1). Provider Agency was to administer these services at an “enhanced market rate” of $175 per hour (Ex. C-2; Ex. F-2). The rate is not stated in the contract (Ex. C). As explained in the contract, if the DOE did not “effectively provide services, [Parent’s] representatives have the right to file a Due Process Complaint [“DPC”] to request funding . . .” (Ex. C-2). The contract further states that the representative would work with Parent and Provider Agency to “obtain the necessary enhanced funding” (Ex. C-2). If Parent elected not to seek funding from the DOE, Parent would be “responsible for the cost of services at the rate charged by Provider Agency” (Ex. C-2; Ex. G). If Parent elected to file a DPC, Provider Agency “may agree to delay invoicing until the case is litigated and finalized” (Ex. C-2). However, Parent remained liable for costs not paid for by the DOE (Ex. C-2; Ex. F-2; Ex. G). Parent agreed to seek direct funding (Ex. C-2). Finally, if the DOE offered SETSS during the school year, Parent would have the “right to discontinue the Special Education Teacher services” (Ex. C-2).
The 2022-2023 School Year- The Provision of Services
Student’s SETSS were administered by Direct SETSS Provider (Ex. F-2; Ex. G). Direct SETSS Provider held a Special Education Permanent Certificate that was issued on September 1, 2003 (Ex. E; Ex. G) and a Bilingual Education Extension Permanent Extension that was issued on January 17, 2015 (Ex. E).
Provider Agency charged $175 per hour for SETSS (Ex. G). Direct SETSS Provider earned $75 per hour (Ex. G; Tr. 80). Provider Agency only charged for services “actually provided” (Ex. G). Per Administrator, the rate was “within the range of market rates, and this rate is currently offered by the DOE’s CSE teams as the resolution rate for SETSS services in private schools” (Ex. G). The “hourly rate cover[ed] all applicable direct and indirect costs that [were] necessary for the implementation of the mandated services” (Ex. G). The “direct cost” of approximately $75 was the amount paid to Direct Provider (Tr. 80). The remainder was allocated to “agency cost[s]” which included “overhead, rent, tax, insurance, and many other costs” (Tr. 80-81).
Parent could not afford to pay for the services upfront and, therefore, Parent seeks direct funding instead of reimbursement (Ex. F-2, 3).
JUNE 1ST NOTICE AND PARENT’S REQUEST TO PRESENT A REBUTTAL CASE
After Closing Briefs were due, Parent’s Representative #2 requested that I allow Parent to present a rebuttal case to address confusion surrounding Parent’s testimony regarding whether they had served notice to the District prior to June 1, 2022 to request special education and related services for Student for the 2022-2023 school year. District Representative opposed that request. I decline to reopen the hearing and allow rebuttal. Parent had ample opportunity during the hearing to provide documentary or testimonial evidence regarding all of the issues presented in this case.
Raising of June 1st Notice at the Hearing
During cross-examination, Parent testified that they informed the District that they were placing Student in a private school for the 2022-2023 school year (Tr. 52). District Representative asked, “[a]nd when you let the District know that you were placing your child in a private school, did you request to have services?” (Tr. 52). Parent stated, “[t]hey usually give me a paper to sign . . . that my [child] is going to get [a] P-3” (Tr. 52). District Representative then asked, “[a]nd did you sign that paper waiving a [FAPE] for the ’22/’23 school year to receive equitable services” (Tr. 52). I sustained an objection from Parent’s Representative #2 on the basis that the question was not clear (Tr. 52-53). Parent responded “[y]es” when asked if they read the paper they received from the DOE to request equitable services and when asked if it was correct that “the paper” stated that by signing the paper they were waiving the District’s responsibility to provide a FAPE (Tr. 53). As District Representative began their next question, Parent’s Representative #2 objected on the basis that the document being referred to was not in evidence (Tr. 53-54, 54-55). District Representative responded that they asked Parent if Parent had requested services and Parent brought up the document (Tr. 54). Parent’s Representative #2 renewed their objection on the ground that questions could not be asked about a document that was not in evidence (Tr. 55). I overruled the objection (Tr. 55).
Parent testified that they signed “that document” for the 2022-2023 school year in January 2023 (Tr. 55), and that it was “correct” that they had not signed it before June 1, 2022 (Tr. 55). District Representative followed up by asking “[e]ven though this document states it needs to be signed and submitted by June 1, 2022 to receive services for the ’22/’23 school year” (Tr. 56). Parent’s Representative #2 objected on the grounds that Parent had “no idea what document [was] being referred to” and that the question was “sandbagging the parent” (Tr. 57).[13] District Representative argued that Parent raised the existence of the document, that they signed it in January 2023, and that they knew what it said (Tr. 57-58). To clarify the record, I asked, “[t]he document that you signed in January of 2023, is that . . . the document for the DOE, for when you ask for services for your child” (Tr. 58). Parent responded in the affirmative (Tr. 58). Parent’s Representative #2 stated they would “reserve [their] clarifying questions for redirect” (Tr. 58). As cross-examination continued, Parent responded in the affirmative when asked whether they “signed this form in January of 2023, even though this form states that it needs to be signed and sent back to [the] District by June 1, 2022 for the student to receive equitable services for the ’22/’23 school year” (Tr. 59).[14]
On redirect examination, Parent confirmed their home address and that they received mail there from the District (Tr. 60-61). Parent testified that they would give documents from the District to Student to bring to the secretary of Private School (Tr. 62). Those documents were “for the therapist to be able to give the services to my [child], as far as I know” (Tr. 62).[15] During the redirect examination of their witness, Parent Representative #2 reiterated that it was “clear” that Parent did not understand to what document they were referring (Tr. 64-65). Parent’s Representative #2 then asked “[i]s it safe to say that any time you receive mail from the District you respond accordingly?” (Tr. 65). I asked Parent’s Representative #2 to rephrase the question (Tr. 65-66). Parent’s Representative #2 then asked whether Parent thought that “mail from the Department of Education is important,” to which Parent responded, “I don’t know what to tell you. If it’s important for you, it’s important. I don’t know” (Tr. 66). Parent’s Representative #2 re-asked their question, and Parent responded “[w]ell it could be important . . . if my [child] has to get [their] services . . . maybe [a] paper needs to be sign[ed], need[s] to be taken care of (Tr. 66-67). Parent’s Representative #2 asked “[g]iven that English is [their] second language,” whether “someone” helps them “with the documents, and with [Student’s] services” (Tr. 67). Parent responded in the affirmative (Tr. 67). Parent’s Representative #2 had no additional questions (Tr. 67). I asked a few questions unrelated to the June 1st notice (Tr. 67-68). Each Party reiterated that they had no further questions (Tr. 67, 69-70).
After Administrator testified, Parent’s Representative #2 stated that they were “reserving” whether they would be resting because they wanted to “[i]n [their] closing statement . . . bring up an issue with the District’s case, and the possibility of a rebuttal” (Tr. 81- 82). Parent’s Representative #2 contended that the DOE did not assert the June 1st defense until cross, despite having “ample opportunity to bring it up at prior status hearings,” and that “bringing it up as an affirmative [defense] on cross is considered sandbagging the parent” (Tr. 82). Parent’s Representative #2 further asserted that the District did not file a DPR until August 23, 2023, “long after the regulatory time frame, showing and evidencing [sic] that the DOE knowingly defaulted on all opportunities to raise this issue properly” (Tr. 83). Parent’s Representative #2 stated that they would “possibly reserve the right to a rebuttal” (Tr. 83). Upon my asking “[d]o you think you need a rebuttal in terms of witnesses or evidence, or do you want a written closing so that these issues can be addressed?” (Tr. 83). Parent’s Representative #2 responded, “[a] written closing” (Tr. 83). District Representative “t[ook] exception” to the use of the term “sandbagging,” noting that they had not raised the issue “until the parent brought up the issue themselves, which is why it was raised on cross” (Tr. 83-84). Parent’s Representative #2 maintained that Parent “did not bring it up at all” (Tr. 84).
The Parties agreed that they needed the transcripts to address the arguments (Tr. 84). They also agreed to submit their written Closing Briefs by October 23, 2023 (Tr. 85-86), and would inform me if they needed an opportunity to reply to the other Party’s brief (Tr. 86). District Representative requested clarification as to whether Parent’s Representative #2 would be submitting any additional evidence and objected to additional exhibits being submitted with the Closing Briefs (Tr. 86-87). Parent’s Representative #2 stated, “[t]here’s no additional evidence” (Tr. 87).
Parent’s Request to Reopen the Hearing
On October 23, 2023 at approximately 6:49 p.m., Parent’s Representative #2 emailed me and District Representative to request that I allow Parent to testify further and “clarify [their] responses” (IHO Ex. III-11-12). Per Parent’s Representative #2, “[u]pon further reflection,” the record was “unclear and ‘messy’” regarding the June 1st letter (IHO Ex. III-12). Parent’s Representative #2 acknowledged that Parent had waived their right to an interpreter, but that they did not understand the questions being asked (IHO Ex. III-12). Parent’s Representative #2 further acknowledged that they had asked for the “opportunity to bring the parent back on rebuttal,” but as per their “recollection,” and “in our haste to wrap up the case,” they “mistakenly agreed to rely only on closing briefs” (IHO Ex. III-12).
In further support of their request, and in response to issues raised by District Representative, Parent’s Representative # 2 provided additional argument through a series of emails.
First, Parent’s Representative #2 denied that they had rested, but rather initially had reserved their right to a rebuttal (IHO Ex. III-5).
Second, Parent’s Representative #2 asserted that that they had not requested an interpreter for Parent because Parent is “generally able to attend IEP meetings without an interpreter.” However, this was their “first hearing” and the record “contained jargon, negative questions and references to substantive documents not in the record, thus leading to unforeseen confusion” (IHO Ex. III-5, 6). Per Parent’s Representative #2 “the District’s questions in this case, addressed to a parent who does not speak non-contextualized English fluently, referred to documents and forms that the parent had not seen and was [sic] not available for review” (IHO Ex. III-2-3). Per Parent’s Representative #2, Parent was “consistently referring to a form that [Parent] described was ‘for services’” (IHO Ex. III-3). There was “no possible way at that time to rebut or redirect the parent as to the name, or contents of such form without having that placed into the record” (IHO Ex. III-2-3). Per Parent’s Representative #2, the District “would have had to produce the form they were referring to or allow the parent an opportunity to rebut [Parent’s] case by producing the form [Parent] was referring to” (IHO Ex. III-3). Per Parent’s Representative #2, it was “hard to discern what the parent was understanding and what [they were] not” (IHO Ex. III-3).
Third, Parent’s Representative #2 asserted that they were requesting the opportunity to present rebuttal because there was a “lack of clarity of the record [which] caused a confusion of the dates, documents, and issues,” not because the testimony was “damaging” (IHO Ex. III-5-6). Parent’s Representative #2 further contended that they raised this issue by objecting and trying to establish that Parent and the District were referring to the same form (IHO Ex. III-6, citing to Tr. 55, line 19 and Tr. 58).
Regarding the timeliness of their request and, and in response to the District’s argument that they made the request for rebuttal in bad faith, Parent’s Representative #2 averred that they waited until after the transcript was issued and then “came to the realization that the issues [could not] be fully understood as the record is unclear” (IHO Ex. III-3, 6). They maintained that they had not opened the District’s Closing Brief and “did not have time to read the transcript in full prior to Sunday[,] October 22, when [they] began preparing for the closing brief, thus necessitating [their] Oct 23 [sic] request to reopen” (IHO Ex. III-3). Finally, Parent’s Representative #2 contended that their request “ha[d] absolutely nothing to do with DOE’s counsel leaving [their] position” (IHO Ex. III-7).
District’s Response to Parent’s Request to Present a Rebuttal Case
District Representative objected on multiple bases to the request by Parent’s Representative #2 to allow Parent to testify again (IHO Ex. III- 3-5, 8-10). Per District Representative, this issue was waived, it was not clear that Parent misunderstood questions due to a language barrier, and the request was raised in bad faith (IHO Ex. III-2). District Representative contended that this was an “attempt to change the testimony” after Parent testified in a manner that “damaged their case” (IHO Ex. III-9).
First, District Representative asserted that Parent’s Representative #2 had “rested their case on the record” (IHO Ex. III-9). Alternatively, District Representative maintained that Parent’s Representative #2 had waived their opportunity to keep their case open and to call additional witnesses by stating on the record “that they did not need to bring additional witnesses or evidence” (IHO Ex. III-2, 8; IHO Ex. III-3, citing to Tr. 87), and by stating that the issue was one of sandbagging which they would address in writing (IHO Ex. III-8). District Representative further contended that Parent’s Representative #2 did not raise a sufficient basis to reopen the case, and even if they had, Parent’s Representative #2 waived the opportunity to do so by not discussing it before, during, or after the testimony (IHO Ex. III-4).
Second, District Representative maintained that any issues raised since the hearing about Parent’s understanding of the English language were waived and were belied by the record. District Representative argued that Parent’s Representative #2 waived issues regarding language because they failed to raise the issue at the hearing (IHO Ex. III-4) and they had never requested an interpreter (IHO Ex. III-9). Moreover, Parent was informed that if they did not understand something that they should ask (IHO Ex. III-3). Parent never stated that they did not understand District Representative’s questions (IHO Ex. III-3, 4). Furthermore, Parent responded with more than “yes” or “no,” demonstrating an understanding of the questions (IHO Ex. III-3-4). District Representative also contended that any concerns regarding a language barrier were belied by Parent’s Representative #2’s argument that Parent was confused about the document being discussed (IHO Ex. III-2).
Third, District Representative asked that I deny the request for rebuttal because Parent’s Representative #2 could have continued their redirect examination at the hearing (IHO Ex. III-9). Per District Representative, redirect examination is an opportunity to clarify cross-examination testimony and to rebut issues raised (IHO Ex. III-4). District Representative posited that “it sounds as though parent’s counsel does not believe they were sufficiency able to clarify the record during their allotted time to do so and are now asking for another opportunity” (IHO Ex. III-4).
Addressing specific claims by Parent’s Representative #2 that Parent did not understand because of District Representative’s use of jargon, District Representative highlighted that such was not a result of difficulty with the English language (IHO Ex. III-3) and that Parent’s Representative #2 could have cleared up any confusion on redirect examination (IHO Ex. III-1-2). District Representative contended that they did not purposely make their questions more confusing to a witness who did not understand English because they did not know of any language barrier because such had not been conveyed (IHO Ex. III-1-2). Per District Representative, the failure to prepare a witness “does not give rise to another chance at testimony” (IHO Ex. III-4), and any confusion about which documents were being discussed needed to have been resolved through redirect examination (IHO Ex. III-1). Countering Parent’s Representative #2 statement that Parent “may have agreed with cross[-examination] questions because [Parent] assumed the person asking them was correct,” District Representative asserted that that is the nature of cross-examination and shows a possible lack of witness preparation (IHO Ex. III-1).[16]
Finally, District Representative maintained that even if Parent did not understand the questions because of a language barrier, the request to reopen should be denied because it was raised in “bad faith” and a reopening would prejudice the District (IHO Ex. III-4). Per District Representative, Parent’s Representative #2 could have raised the issue when they received the transcript or any time during the two weeks prior to when the Closing Briefs were due (IHO Ex. III-4). Parent’s Representative #2 waited until two hours after District Representative submitted their Closing Brief and after knowing that District Representative’s last day of employment with the DOE was the week the Closing Briefs were due (IHO Ex. III-4-5, 9).
Denial of Request to Present Rebuttal
I decline to allow Parent’s Representative #2 to reopen the hearing.
I find that although Parent’s Representative #2 did not formally state that they were resting, they effectively did so. At the conclusion of testimony, when Parent’s Representative #2 “reserved” whether they would rest, and after hearing each Party’s position, I specifically asked whether Parent’s Representative #2 was requesting the opportunity to present additional witnesses or evidence or if they were requesting a written closing to address their concerns (Tr. 82-83). Parent’s Representative #2 stated that they were requesting a written closing (Tr. 83) and stated that there was no additional evidence (Tr. 86-87). I find that at that time, Parent’s Representative #2 rested their case and agreed that no additional testimony or documentary evidence would be considered, only written Closing Briefs.
I further find that Parent’s Representative #2’s request was untimely. On September 28, 2023, at the conclusion of testimony, Parent’s Representative agreed to submit their written closing by October 23, 2023 to allow time to receive and review the transcript (Tr. 85-86). On October 11, 2023, the transcript of the DPH was emailed to the Parties (IHO Ex. I). On October 23, 2023, more than three weeks after the hearing, almost two weeks after the transcript had been emailed, the day Closing Briefs were due, and after receipt of the District’s Closing Brief, Parent’s Representative #2 emailed me and District Representative to request that I allow Parent to testify further and “clarify [their] responses” (IHO Ex. III- 11-12). I credit Parent’s Representative #2’s assertions that they did not read the transcript until the day before the brief was due (IHO Ex. III-3) and that they did not realize they needed to make the request until after they read the transcript (IHO Ex. III-3, 6). I also do not find that Parent’s Representative #2 acted in bad faith by making their request when they did. I simply find that the request was untimely.[17]
In addition, I find that Parent’s Representative #2 had ample opportunity to redirect their witness (see generally Tr. 60-67), which included time I granted the representative to prepare their questions (Tr. 60). At no time did I curtail Parent’s Representative #2’s redirect examination. For this reason, I am unpersuaded by the contention of Parent’s Representative #2 that “in our haste to wrap up the case,” they “mistakenly agreed to rely only on closing briefs” (IHO Ex. III-12).
I also do not find a basis to reopen the hearing because Parent’s Representative #2 clearly stated at the hearing that there was no additional evidence (Tr. 86-87).
Moreover, I do not find it necessary to reopen the hearing to clarify the record in light of a language barrier. I find that Parent’s primary language is not English. However, Parent’s Representative #2 never asked for an interpreter and Parent did not state that they did not understand the questions. Parent’s Representative #2 could have clarified misunderstandings on redirect examination and had they needed to do so, they could have asked for an interpreter during the hearing. They did not.
Finally, I find that giving Parent’s Representative another opportunity to “rehabilitate” their own witness would not be fruitful. Whether Parent was confused by the questions or not, the outcome is the same. If Parent was “correctly” referring to a document they signed in January 2023 as the request for the DOE to provide services, the testimony is that they did not request services in advance of June 1, 2022. If Parent was confused and was only referring to the contract they signed with Provider Agency in January 2023, then they did not serve June 1st notice. Providing another opportunity to conduct redirect examination would not change the outcome on the ultimate issue of whether Parent served June 1st notice.[18]
Accordingly, I decline to reopen the hearing.
Decision Not to Allow Submission of a Late Closing Brief
Parent’s Representative #2 asserted that if their request to reopen the hearing was denied, they would elaborate on their argument in their Closing Brief (IHO Ex. III-3). District Representative requested that I order Parent’s Representative #2 to submit their brief immediately and not to view the District’s Closing Brief while preparing their Closing Brief (IHO Ex. III-5).[19] I decline to allow Parent’s Representative #2 to submit a late Closing Brief.
First, I find the request untimely. At the hearing, I explained that the transcript would take approximately ten business days to be generated, which would be on October 19, 2023 (Tr. 85). Parent’s Representative # 2 initially requested five business days to draft their Closing Brief and then asked to submit it on October 23, 2023 so that they could have the weekend to draft the brief (Tr. 85). I granted that request (Tr. 85). The transcript was actually emailed to the Parties on October 11, 2023, but as discussed, Parent’s Representative #2 did not submit their Closing Brief.
Second, although Parent’s Representative #2 wished to further elaborate on their arguments, I find they specifically stated that there was no additional evidence to consider (Tr. 86-87) and that they raised numerous arguments through their emails (IHO Ex. III-2-3, 5-7, 11-12).
DISTRICT’S REQUEST TO DENY FUNDING BASED ON LACK OF JUNE 1ST NOTICE
I find that the June 1st issue is timely before me and that the evidence in the hearing record shows that Parent failed to serve proper notice.
District’s Position
District Representative requests that I deny Parent relief because Parent did not submit a timely request to the District to provide services to Student (IHO Ex. II-3-4). Per District Representative, Parent testified that they received a letter from the District in order for Student to receive services (IHO Ex. II-3, citing to Tr. 52). Parent read the document, which stated that Student would not receive services for the 2022-2023 school year unless Parent signed and returned the document by June 1, 2022 (IHO Ex. II-3, citing to Tr. 53, 59). Nonetheless, Parent did not send the document to the DOE until January 2023 (IHO Ex. III-3-4, citing to Tr. 55).
District Representative further maintains that they raised the June 1st defense at the appropriate time (IHO Ex. II-4-5). District Representative asserts that the June 1st issue is an affirmative defense that must be raised “at any time during the initial impartial hearing” (IHO Ex. II-4-5).
Finally, District Representative argues that even if the District waived the right to assert the defense, Parent “opened the door to the defense” (IHO Ex. II-5-6). Per District Representative, they asked Parent if Parent notified the District that they were parentally placing Student and whether Parent requested services (IHO Ex. II-5). They did not ask “how this was done initially” or “when it was done initially” (IHO Ex. II-5). Parent responded, “they usually give me a paper to sign, you know, that they going to– that my [child] is going to get . . .” (IHO Ex. II-5, citing Tr. 52). Per District Representative, this opened the door to the request for services (IHO Ex. II-5). Parent’s Representative #2 and I raised concerns about to which document Parent was referring, but Parent stated repeatedly that they had read the document, had signed it and knew what the document had stated (IHO Ex. II-5). Per District Representative the “original question was not meant to discuss the June 1st letter but merely to get a timeline of the communication between the Department of Education and the parent” (IHO Ex. II-5), and to determine whether there was contact between the District and Parent before Parent signed the contract with Provider Agency (IHO Ex. II-6). The question was not directed to ask about June 1st (IHO II Ex. II-5). District Representative asserts that Parent is the one who “mentioned the existence of this document” (IHO Ex. II- 6, citing Tr. 54, 57-58, 84).
Analysis
State Review Officers have issued numerous opinions stating that the June 1st defense is an affirmative defense that may be raised at any time during the impartial hearing. See e.g., Application of a Student with a Disability, Appeal No. 23-140 (“as long as the district raised the June first deadline as an affirmative defense at any time during the impartial hearing, the district did not waive its defense”).
Parent testified that they signed “that document” for the 2022-2023 school year in January 2023 (Tr. 55), and that it was “correct” that they had not signed it before June 1, 2022 (Tr. 55). To clarify the record, I asked, “[t]he document that you signed in January of 2023, is that . . . the document for the DOE, for when you ask for services for your child” (Tr. 58). Parent responded in the affirmative (Tr. 58). Thereafter, as cross-examination continued, Parent responded in the affirmative when asked whether they “signed this form in January of 2023, even though this form states that it needs to be signed and sent back to [the] District by June 1, 2022 for the student to receive equitable services for the ’22/’23 school year” (Tr. 59).
Finally, and most tellingly, Parent’s Representative #2 never stated that there was a timely June 1st letter. At the hearing, they specifically stated that there was no additional evidence (Tr. 86-87). Furthermore, in their email exchange, they did not ask to proffer additional evidence (IHO Ex. III). They asked for an opportunity to recall Parent in an effort to rehabilitate their witness. As discussed already, another opportunity to conduct redirect examination would not change the outcome on the issue of June 1st notice. They either served June 1st notice or they did not. Parent’s Representative #2 was given ample opportunity to present it had Parent timely served it. Parent’s Representative #2 did not.
As I have found that Parent failed to properly request services for the 2022-2023 school year, I find that Parent is not entitled to funding for the services they secured.[20]
DISTRICT’S REQUEST TO DENY OR REDUCE FUNDING BASED ON
LACK OF A CONTRACT
District Representative asks that I deny Parent’s request for funding for the complete 2022-2023 school year because Parent failed to establish a “legal and financial obligation to pay for the services administered between September 2022 and January 2023” (IHO Ex. II-6-8). Pursuant to the contract, “[s]ervices can begin as soon as the documentation is submitted and processed for the school year” (IHO Ex. II-8). Per District Representative, Parent did not sign the contract until January 23, 2023, and the contract states that “this is the entire agreement and no promises outside of the agreement made on or before the effective date will be binding upon the parties” (IHO Ex. II-8). Therefore, the “supposed agreement” between Parent and Provider Agency from September through January would not be honored by the written contract (IHO Ex. II-8). Accordingly, District Representative asserts should I find that Parent is entitled to funding for services, I should only award funding from January 23, 2023 through the end of the 2022-2023 school year (IHO Ex. II-8).
I find District Representative’s argument unpersuasive and had I not found in their favor on the June 1st issue, I would have declined to limit funding to the period between January 23, 2023 and the end of the school year. Parent and Provider Agency each testified that Provider Agency mistakenly failed to have Parent sign the contract (Tr. 50, 78, 78-79). Administrator testified that that as soon as they “realized that [they] were missing it, [they] made [Parent] sign right away” (Tr. 78). Per Administrator, there was “an understanding” between Parent and Provider Agency at the beginning of the school year that Provider Agency would administer services for the entire school year starting in September and that Parent would be responsible for the cost of services (Tr. 79-80). Provider Agency began administering services on September 13, 2022 (Tr. 49, 50, 76, 77; Ex. G). Parent confirmed that they contracted for services for the 2022-2023 school year, that services were $175 per hour, and that Parent remained liable for costs not paid for by the DOE (Ex. F-2). Accordingly, I would have declined to limit funding to the period from the date upon which the contract was signed through the end of the 2022-2023 school year.
LEGAL STANDARDS AND FRAMEWORK
Burden of Proof
Under the IDEA and the NYS Education Law, school districts have the burden of proof that a FAPE has been provided to the student, except that where tuition reimbursement is sought, the parent has the burden of proof with respect to the appropriateness of the parent’s chosen educational placement. See Education Law § 4404(1)(c); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012). As explained more fully below, SETSS cases have been treated as a hybrid between unilateral placement theory cases, see e.g., Application of a Student with a Disability, Appeal No. 21-101, and pure compensatory education cases. See, e.g., Foster v. Bd. of Educ. Of the City of Chicago, 611 Fed. App’x 874, 878-79 (7th Cir. 2015) (compensatory education includes reimbursement for out-of-pocket educational expenses). Accordingly, I first must determine whether the District met its burden to demonstrate that its offered program was reasonably calculated and implemented to provide this Student with educational benefits.
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 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). As already explained, 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).
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.
Had Parent served proper June 1st notice, I would have found that the District’s failure to implement SETSS deprived Student of a FAPE on an equitable basis for the 2022-2023 school year.
The DOE had the obligation to provide services to Student in conformity with the IESP. See Educ. Law§ 3602-c(2)(a), (b)(l). By not doing so, the DOE failed to provide Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district. More than that, it has been held that the Department may not effectively compel a parent to resort to self-help in obtaining a SETSS provider. See e.g., Application of a Student with a Disability, Appeal No. 21-101. Such a “de facto delegation from the district to the parent of the obligation to find a SETSS provider . . . at an acceptable rate is manifestly unreasonable” (id.,) and a violation of State law. See Application of a Student with a Disability, Appeal No. 20-115 (“core instruction provided by a school district must be performed either by teachers who are employees of the district or pursuant to a contract for special education services that a district is specifically authorized by law to enter into”) (internal citation omitted, emphasis added); see also Application of a Student with a Disability, Appeal No. 20-087; and Application of a Student with a Disability, Appeal No. 20-140.
Appropriateness of Parentally Selected Services
Had Parent served proper June 1st notice, I would have found the services appropriate.
Among the considerations in determining whether a private placement selected by a parent is appropriate are whether the placement is likely to produce progress, not regression. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir 2017), quoting Walczak, 142 F.3d at 130. Moreover,
[n]o one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specifically designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364-365 (2d. Cir 2006). A similar analysis lends itself to a case like this, where a parent selects services for their child after the District fails to implement the current IEP or IESP.
At the outset, I note that the District had not challenged the appropriateness of the services selected. Further, the appropriateness of the SETSS administered to Student is “not seriously in dispute in this matter as [they are] the same type of service recommended on the . . . IESP” See Application of a Student with a Disability, Appeal No. 21-138. Pursuant to the May 2020 IESP, the CSE recommended that Student receive five periods of SETSS per week (Ex. B-8). Provider Agency administered five hours of SETSS per week (Tr. 49, 50, 76, 77; Ex. D-1; Ex. G)
In addition, Parent submitted a Progress Report dated July 3, 2023 which documented the areas in which Direct SETSS Provider worked with Student and the progress Student made over the course of the school year (Ex. D). Pursuant to the Report, Student “demonstrate[d] severe delays three years [sic] below [their] age level in reading fluency, reading comprehension, speech and language, and social-emotional skills” (Ex. D-1, 3). Direct SETSS Provider worked with Student to develop skills in Math, Reading, Writing, and Social Development, and Provider documented examples of what was worked on in each area (Ex. D-1-2). Direct SETSS Provider also identified specific management needs and drafted goals in Reading Readiness, Communication, Reading Literature, and Math (Ex. D-3).
In sum, I would have found that the services selected by Parent were appropriate.
REMEDIES
The remedy for a school district’s failure to provide appropriate equitable services required under Education Law § 3602-c is similar to the remedy for a school district’s failure to provide appropriate services under the IDEA. See Application of a Student with a Disability, Appeal No. 20-023, citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 (D.Conn. 2017). Under the IDEA, courts can “grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. See Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA (seePolera 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 SRO has held that when, like here, the parent has not already paid the SETSS provider, and seeks direct funding rather than reimbursement, the “matter is in a subset of more complicated cases in which the financial injury to the parent and the appropriate remedy are less clear.” Application of a Student with a Disability, Appeal No. 20-115 citing E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014) (holding that equitable considerations allow for direct payment for tuition where the parents were legally obligated to make payments but had not done so due to a lack of financial resources). Because Parent had to find a provider on their own and because “caselaw supports reimbursement and direct remedies in a unilateral placement case,” the SRO has determined that the question of whether a SETSS provider should be paid directly is somewhat similar to the Burlington/Carter framework, which “forecloses any complete disavowal of the parent’s burden of production and persuasion related to the private, unilateral services obtained by the parent.” Application of a Student with a Disability, Appeal No. 20-115 (finding, inter alia, the analysis "unworkable to the extent that the SETSS services can be construed as a state-approved option”).
In determining whether a provider agency’s rates are reasonable and appropriate under the circumstances, various factors have been found relevant, including: the provider’s explanation of the rate, including its costs and the qualifications of its instructors (Application of a Student with a Disability, Appeal No. 20-140 [while “[g]enerally, teachers at a unilateral placement need not be State-certified . . . there must be objective evidence of special education instruction or supports that are specially designed by . . . providers . . . who have reasonable qualifications that are specifically related to the student’s deficits”]); the value that specialized certification, such as a bilingual extension, adds to instruction (Application of a Student with a Disability, Appeal No. 21-183 [approving compensatory SETSS by a bilingual reading specialist at a rate not to exceed $200 per hour]); and the parent’s efforts to locate a DOE-approved SETSS provider from a list provided by the District to the parent (Application of a Student with a Disability, Appeal No. 21-096). Additionally, one must look to whether the parent directly paid the provider or is contractually obligated to pay the provider in the event the District is not ordered to fund SETSS at the requested rate. See e.g. Application of a Student with a Disability, Appeal No. 21-068 (holding that “it is not appropriate equitable relief . . . to require the district to either reimburse the parent for the costs of SETSS or to directly fund SETSS” where “there is inadequate proof that the parent has expended any funds to pay for SETSS . . . or is legally obligated to do so”). Ultimately, in light of these factors, I would have determined 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 would have considered 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, Including Rate Requested and TDN
At the outset, I find that the District failed to present any evidence to show what a reasonable rate is for the recommended services or to otherwise set forth its position regarding the appropriate compensatory remedy.
Turning to whether the requested rate is unreasonable, I credit Administrator’s explanation of the rate. Provider Agency charged $175 per hour for SETSS (Ex. G). The “hourly rate cover[ed] all applicable direct and indirect costs that [were] necessary for the implementation of the mandated services” (Ex. G). The “direct cost” of approximately $75 was the amount paid to Direct SETSS Provider (Tr. 80). The remainder was allocated to “agency cost[s]” which included “overhead, rent, tax, insurance, and many other costs” (Tr. 80-81).
I would not have found the enhanced rate unreasonable given the qualifications of the provider. Direct SETSS Provider held a Special Education Permanent Certificate that was issued on September 1, 2003 (Ex. E; Ex. G).
I would have found no reason to decrease funding at the requested rate based on Parent’s efforts to locate a DOE SETSS provider from a list provided by the District. Although I do not credit Parent’s affidavit testimony that they received no communication from the DOE about a qualified SETSS provider (Ex. F-2), I credit their live testimony that Parent could not recall whether they received a list of people who could administered SETSS to Student (Tr. 69). My decision not to decrease funding is based on that testimony and that the District did not present any evidence that they had provided such a list to Parent.
As explained above, I would have found that Parent is legally obligated to pay Provider Agency for SETSS administered throughout the entire 2022-2023 school year.
However, I would have found a 10% reduction of the requested rate appropriate given Parent’s failure to provide a TDN to the District. At the PHC, I specifically stated that by proceeding on the modified Burlington/Carter approach, I would conduct an analysis of equities, including “in terms of a ten-day notice” (PHC Tr. 9-10). Parent’s Representative #2 did not proffer such notice. By failing to notify the District of the enhanced rate claim, Parent deprived the District of the opportunity to modify its offered rate for SETSS in light of Parent’s claims.
Accordingly, had I found that Parent served proper notice, I would have awarded funding for SETSS for the 2022-2023 school year, but at a rate of $157.50.
Direct Funding for Services
Parent seeks direct funding for the SETSS. As I would have found that the District failed to provide Student a FAPE on an equitable basis for the 2022-2023 school year and that the services were appropriate, I would not have required Parent to produce anything to satisfy the request for direct funding. See generally Cohen v. N.Y. City Dep't of Educ., 2023 U.S. Dist. LEXIS 171815 (S.D.N.Y. September 26, 2023) (stating, “[t]o require parents to fund their children's education in the first instance, unless they demonstrate an inability to pay—as the SRO did here—skews the equities underlying the IDEA and cases applying that law. Direct payment to the school simply requires the DOE to belatedly fund expenses that it was obligated to pay all along. Thus, where, as here, a private school is willing to enroll the student and assume the risk that it will take years to obtain payment, parents who satisfy the Burlington factors have a right to retroactive direct tuition payment.”) (internal citations omitted). See also generally Ferreira v. New York City Dep’t of Educ., 2023 WL 2499261 (S.D.N.Y. March 14, 2023) (noting that Court found no caselaw holding that “proof of inability to pay is required to establish the propriety of direct retrospective payment,” and that “where it is undisputed that the DOE is responsible for payment, and the DOE does not contest the reasonableness of the cost of tuition, it would be nonsensical to draw a distinction on equitable grounds between requiring the DOE to pay the school directly and forcing the parents to make an initial payment in the same amount that the DOE is then required to reimburse”).
Although the contract is in evidence (Ex. C), I would have ordered Parent to present a valid contract between Parent and provider and an affidavit attesting that the services billed for were provided.
Funding for a 10-Month School Year
I would have found that Student was entitled to funding of SETSS during a 10-month school year as recommended by the May 2020 IESP (Ex. B). I find that a 10-month school year comprises 36 weeks, a reflection of the 180 instructional days divided by five days per week.[21]
RE-EVALUATION AND RECONVENING OF THE CSE
Although Parent has not requested a new CSE meeting, given that the most recent IESP was more than three years old at the time Parent filed the IHR, I am ordering that if the District has not conducted a triennial evaluation, it is to conduct one unless Parent waives such evaluation. I am also ordering the CSE to reconvene.
A district is not required to conduct a re-evaluation more than once per year unless the parent and district agree otherwise. However, a district is required to evaluate a student every three years unless the parent and the district otherwise agree. See 8 NYCRR § 200.4(b)(4); 34 C.F.R.
§ 300.303(b)(1)-(2).
The IESP at issue in this case was drafted more than three years ago, on May 27, 2020 (Ex. B). Further, at the time of the meeting, the CSE relied upon a psychoeducational evaluation that had been conducted in February of 2017 (Ex. B-1). Therefore, I am directing that if the District has not conducted a re-evaluation of Student, they are to reach out to Parent within 35 days of this Decision to obtain Parent’s consent for a re-evaluation. If Parent consents, I further direct the District to schedule appropriate testing within 35 days of obtaining Parent’s consent.
Finally, I am ordering the CSE to 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 CSE is to reconvene either within 35 days of receiving the results of the re-evaluation or within 35 days of Parent’s and the District’s agreement not to re-evaluate.
OTHER CONTENTIONS
Other than the relief set out in my Order below, 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 all of Parent’s requested relief is DENIED; and it further
ORDERED that, unless the Department of Education (“DOE”) has conducted a re-evaluation of Student since the filing of the Impartial Hearing Request (“IHR”), the DOE shall seek Parent’s consent for a re-evaluation within 35 days of this Order; and it is further
ORDERED that, if Parent consents to the re-evaluation, the DOE must schedule an appropriate evaluation within 35 days of receiving Parent’s consent to evaluate; and it is further
ORDERED that the District shall provide Parent with copies of the evaluation results within 10 days of the date such report is completed; and it is further
ORDERED that the Committee on Special Education (“CSE”) shall reconvene within 35 days of receipt of the final report to consider Student’s continued eligibility for special education and/or related services, and if eligible, to develop an Individualized Education Services Program (“IESP”) or Individualized Education Program (“IEP”) in accordance with the Individuals with Disabilities Education Act (“IDEA”) and State law; and it is further
ORDERED that, if the District and Parent agree not to conduct a re-evaluation, the CSE shall reconvene within 35 days of that agreement to consider 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.
DATED: April 5, 2024
Impartial Hearing Officer signature, Ginger James(signed electronically)
_______________________________________________________________________________________
Ginger James
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX A- REDACTION IDENTIFICATION PAGE
Redacted Information | Term Used In FOFD |
REDACTED | Student |
REDACTED | Parent |
REDACTED | Parent’s Representative #1 |
REDACTED | Parent’s Representative #2 |
REDACTED | District Representative |
REDACTED | Home District |
REDACTED | Service District |
REDACTED | Private School |
REDACTED | Administrator at Provider Agency |
REDACTED | Direct SETSS Provider |
REDACTED | Provider Agency |
APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
Exhibit | Title of Document | Date | Number of Pages |
A | Impartial Hearing Request | 07/19/2023 | 3 |
B | Committee on Special Education Individualized Education Services Program (“CSE IESP”) | 05/27/2020[22] | 11 |
C | Parent Agreement | 01/23/2023 | 2 |
D | Progress Report | 07/03/2023 | 3 |
E | Provider Credentials | N/A | 3 |
F | Parent Affidavit | 09/20/2023 | 3 |
G | Agency Affidavit | 09/06/2023 | 1 |
DOE EXHIBITS
NONE
IHO EXHIBITS
Exhibit | Title of Document | Date | Number of Pages |
I | Email Regarding Sending of the Transcript to the Parties | 10/11/2023 | 1 |
II | District’s Closing Brief with State Review Officer Decision Number 23-114 | 10/23/2023 | 19 |
III | Emails Regarding Closing Briefs and Parent’s Request to Present a Rebuttal Case | Various between 10/23/2023 and 11/02/2023 | 13 |
Footnotes
[1] No personal identifying information is contained within the body of this Findings of Fact and Decision (“FOFD”). For personal identifying information, please refer to the attached appendix. Further, this FOFD contains no references to the gender binary. The pronoun “they” is used as needed.
[2] This matter was previously filed on February 7, 2023 and withdrawn without prejudice on April 21, 2023 (Ex. A-2; PHC Tr. 20).
[3] Parent also had requested an Order compelling the DOE to fund CO at an “enhanced market rate,” but withdrew that request (PHC Tr. 7-8; Tr. 31-32). Parent had invoked pendency (Ex. A-2), but withdrew that request because the school year had ended (PHC Tr. 4-5).
[4] References to the transcript from the Pre-Hearing Conference conducted on August 25, 2023 are denoted “PHC Tr.” References to the transcript from the Due Process Hearing conducted on September 28, 2023 are denoted “Tr.”
[5] 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.
[6] District Representative #1 did not state the citation for the SRO Opinion.
[7] Details regarding that testimony are provided in further detail below in the section entitled, “June 1st Notice and Parent’s Request to Present a Rebuttal Case.”
[8] Those issues are discussed in the section entitled, “June 1st Notice and Parent’s Request to Present a Rebuttal Case.”
[9] The CSE relied upon a “counseling report” dated April 28, 2019 for information about Student’s social-emotional/behavioral skills (Ex. B-3). It is unclear how much of the narrative in the IESP was derived from that report or from behavior observed subsequent to that report.
[10] Given Parent’s live testimony that they could not recall whether they had received such information, I do not credit the statement in their affidavit that Parent received no communication from the DOE about a qualified SETSS provider (Ex. F-2).
[11] I find the statements in the IHR that “parent, having no other recourse, exerted extensive efforts to find SETSS and Related Service providers to service the student’s mandate services at the regular DOE-published rates” (Ex. A-1), and “[d]espite the efforts,” Parent was “unable to procure” those services (Ex. A-2), belied by Parent’s actual testimony. I further find Parent’s testimony that they had “no choice” but to contract with Provider Agency (Ex. F-2) baseless since Parent did not attempt to secure services through any other agency.
[12] Parent confirmed that Provider Agency “didn’t realize” that they failed to have Parent sign a contract (Tr. 50).
[13] I allowed Parent’s Representative #2 time to gather their thoughts after making the objection to provide a basis for their objection (Tr. 56-57).
[14] I did not hear Parent’s Representative #2 object to the final question (Tr. 59-60). Parent’s Representative #2 did not appear by video and experienced some technical issues throughout the proceeding (Tr. 46, 59-60, 60-61, 62-63).
[15] I sustained an objection to whether the “secretary send[s] the document in to the Department of Education for [Parent]” on the basis of relevancy (Tr. 63-64).
[16] District Representative also noted that the argument raised by Parent’s Representative #2 that a document could not be discussed unless it was in evidence had been addressed at the hearing and that it was incorrect and irrelevant (IHO Ex. III-1).
[17] Although this has not factored into my decision, in general, I find it unreasonable to have expected a response the same day to an email sent at approximately 6:49 p.m. (IHO Ex. III- 11-12). I understand that many of us work outside of the “traditional hours” of 9:00 a.m. to 5:00 p.m., but Parent’s Representative #2 should have been mindful of the time and made the request closer to traditional hours if requesting relief the day their brief was due.
[18] I am unpersuaded by District Representative’s contention that allowing the reopening would be prejudicial to the District because Parent’s Representative #2 knew that it was their last week with the DOE. I find that the record was not so complicated that another representative could not ably represent the District’s position after reading the transcript and reviewing the evidence. Accordingly, I have not based my decision to deny the request to present a rebuttal case on any claimed prejudice to the District.
[19] Alternatively, District Representative requested that an appearance be scheduled for oral arguments before their last day at the DOE (IHO Ex. III-2).
[20] Although I have found that Parent failed to properly request services for the 2022-2023 school year, I am aware that an appeal may be taken in this matter. Accordingly, I have addressed the other issues raised.
[21] See NYC DOE 2022-2023 School Year Calendar, found at <https://www.schools.nyc.gov/about-us/news//2022-2023-school-year-calendar> (last visited April 5, 2024); see also Application of a Child with a Disability, Appeal No. 23-153, pg. 25; Application of a Child with a Disability, Appeal No. 23-033, FN 10.
[22] Although Parent’s Disclosure List reflects the date of May 7, 2020, Parent’s Representative #2 noted that the IESP is dated May 27, 2020 and that the list contained a typographical error (Tr. 34).