NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBER 604354 – NYC: 252024
CORRECTED FINDINGS OF FACT AND DECISION
| Case Number: | 252024 |
| Student’s Name: | REDACTED |
| Home District: | REDACTED |
| Service District: | REDACTED |
| Impartial Hearing Officer: | Ginger James |
| Date of Filing: | July 24, 2023 |
| Hearing Requested by: | Parent |
| Date of Hearing: | October 10, 2023 |
| Record Close Date: | November 6, 2023 |
| Date of Decision: | November 8, 2023 |
| Time Sensitive: | No |
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 28, 2023
For the Student:
REDACTED, Parent’s Representative
For the New York City Department of Education:
REDACTED, Esq., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 14, 2023
For the Student:
REDACTED, Esq., Parent’s Attorney
For the New York City Department of Education:
REDACTED, Esq., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 10, 2023
For the Student:
REDACTED, Esq., Parent’s Attorney
REDACTED, Owner/Educational Director of Provider Agency
For the New York City Department of Education:
REDACTED, Esq., District Representative
BACKGROUND AND POSITIONS OF THE PARTIES
Parent,[1] through counsel, filed a Due Process Complaint (“DPC”) on July 24, 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 12-month, 2023-2024 school year (Ex. A). Parent alleges that the Committee on Special Education (“CSE”) failed to convene in advance of the 2023-2024 school year, thereby failing to recommend special education and related services to Student for the current school year (Ex. A-2; PHC Tr. 12; Tr. 52). Parent further alleges that on June 2, 2021, the Committee on Preschool Education (“CPSE”) drafted an Individualized Education Program (“IEP”) which recommended the following services: Special Education Itinerant Teacher (“SEIT”) services, to be provided in a group of three, two hours per day, five days per week, to be administered in REDACTED; Speech Language Therapy (“SLT”) to be provided as an individual service, three times per week for 30 minutes, to be administered in REDACTED; and Occupational Therapy (“OT”) to be administered in a group of two, two times per week for 30 minutes (“the June 2021 IEP”) (Ex. A-1-2; Ex. B-1, 11; Ex. C-1; PHC Tr. 12-14; Tr. 52, 62-63).[3], [4] Parent asserts that the CSE failed to provide any services to Student for the 2023-2024 school year, including those recommended through the June 2021 IEP (Ex. A; PHC Tr. 12; Tr. 52, 62-63, 98).
Regarding relief, Parent seeks direct funding at “a reasonable market rate” for Special Education Teacher Support Services (“SETSS”)[5] and related services as set forth in the June 2021 IEP (Tr. 38-39, 49-50, 52, 99).[6], [7]
District Representative did not present witnesses or documentary evidence in support of their burden to prove that the District provided Student a FAPE on an equitable basis for the 2023-2024 school year (Tr. 53-54, 61-62, 96). District Representative called into question whether Parent signed the contract with Provider Agency for the SEIT and related services (Tr. 37-38, 41-46, 90-93). Finally, District Representative maintains that Parent failed to meet their burden to prove that the services they selected for Student are appropriate (Tr. 96-97).
I find that the DOE failed to offer Student a FAPE on an equitable basis for the 2023-2024 school year. I further find that the program Parent selected is appropriate. I am ordering that SETSS be directly funded at “a reasonable market rate” not to exceed $195 per hour, and that SLT and OT be directly funded at a “reasonable market rate” not to exceed $250 per hour for each service. The “reasonable market rate” shall be consistent with rates that have been paid by the Implementation Unit for comparable services within 6 months of the date of this Order. I am ordering funding for a 12-month, 42-week school year.
PROCEDURAL HISTORY
As of July 24, 2023, the date of the filing of the DPC, Student was attending Private School and was about to enter 1st grade (Ex. A-1; Ex. I; Tr. 72).
After the filing, the Resolution Period began. It ended on August 23, 2023, with no meeting held or resolution reached (PHC Tr. 4-5; Tr. 43-45).
On July 26, 2023, I was appointed Impartial Hearing Officer (“IHO”) for this case.
On August 28, 2023, Parent’s Representative and District Representative met with an OATH Settlement Officer for a Settlement Conference and thereafter met with me for a Pre-Hearing Conference (“PHC”).[8] After addressing the issues and remedies sought, Parent’s Representative and District Representative confirmed that the Parties would proceed pursuant to the modified Burlington/Carter analysis generally employed by the Office of State Review (“OSR”) in these cases, meaning that the District bore the burden of proving it provided Student a FAPE on an equitable basis for the 2023-2024 school year, that Parent bore the burden of proving the services they selected were appropriate and that I would need to weigh the equities including Parent’s provision of Ten Day Notice (“TDN”) and the reasonableness of the rate (PHC Tr. 12-15). As the Parties wished to explore the possibility of settlement, I scheduled a Status Conference for September 14, 2023 and the Due Process Hearing (“DPH”) for October 10, 2023 should settlement not be reached (PHC Tr. 5-11, 18). I also granted the Parties’ joint request to extend the compliance date (PHC Tr. 9-10).
On September 14, 2023, Parent’s Attorney and District Representative (“the Parties”) appeared before me for the Status Conference. The Parties were still engaged in settlement discussions (SC Tr. 24-26).
On October 10, 2023, the Parties appeared before me for the DPH. At the outset of the proceeding, the Parties discussed three issues. First, in looking at the June 2021 IEP, it was unclear whether the CPSE had recommended that services be provided over 12 months or over 10 months (Tr. 37, 39-41, 87-88).
Second, District Representative made an application requesting that I order Parent to appear to authenticate the signed contract to be proffered by Parent’s Attorney (Tr. 37-38, 41-46). In support of their request, District Representative asserted that Parent had not appeared in this matter on the prior dates, and that “[a]lthough the parent did sign the contract, it is not notarized” (Tr. 38). In response to my question, District Representative could not confirm whether a resolution meeting had been held, but did know that the CSE had been working on a resolution offer in this matter (Tr. 43-44). Parent’s Attorney asked that I take “judicial notice” of the fact that “[m]aybe for the last year[-]and[-]a[-]half . . .the DOE has been offering expedited resolutions on these types of nonimplementation [sic] cases where . . . they’re bypassing the resolution meeting and they’re just sending resolution offers directly to the parents” (Tr. 44). Per Parent’s Attorney, “only very recently there was a change in that the DOE is now trying to schedule these meetings instead of offering the agreement outright” (Tr. 45). I explained that I had asked about the meeting because it would have provided the DOE an opportunity to meet with Parent and discuss certain issues, such as whether Parent had entered into a contract (Tr. 45). In response to my question whether District Representative had support for their position that Parent needed to be present at the DPH to authenticate the contract, District Representative contended that Parent is the party seeking funding for the services and had not been present at prior appearances (Tr. 45-46). Further, although there is a signed document, “the District does think it is imperative that the parent presents themselves and authenticate[s] their signature and authenticate[s] that this was a document that they signed” (Tr. 45-46). Parent’s Attorney countered that “these services are supposed to be provided on an equitable basis,” that for a student in a private school to obtain these services, “the entire system basically requires a parent to sign this contract and ask for an impartial hearing just to get the services that really the DOE is responsible to provide,” and that ultimately, having a parent sign the contract, file the DPC and show the appropriateness of the provider is not equitable (Tr. 47-48). Parent’s Attorney offered to make Parent available if needed, but asked to move forward without requiring their presence (Tr. 48). I held the decision in abeyance until the conclusion of testimony (Tr. 48-49).
Third, Parent’s Attorney informed me that “the Parent and the DOE were in agreement that . . . instead of discussing the numbers, we would both be amendable to a reasonable market rate” (Tr. 38-39). The Parties agreed that questions to the witness would address the appropriateness of the services, but not the rates for those services (Tr. 49-50).
The Parties and I then discussed the issues, remedies sought and burdens of proof (Tr. 52-53). District Representative declined to proffer exhibits (Tr. 53). District Representative did not concede that the District failed to provide Student a FAPE on an equitable basis for the 2023-2024 school year, stating, “[t]he District is not conceding, but the District is not putting on a Prong I case” (Tr. 54). District Representative was “[u]nable to confirm” whether the District provided any services to Student for the 2023-2024 school year (Tr. 54). Parent’s Attorney proffered Exhibits A through I (Tr. 57-59),[9] which included the affidavit of Owner/Educational Director of Provider Agency (“Owner”) (Ex. D). District Representative had no objection to any of the exhibits, and I admitted all into evidence (Tr. 59-60). District Representative declined to present witnesses (Tr. 61-62) and declined to present an opening statement (Tr. 62). Parent’s Attorney presented an opening statement (Tr. 62-63). Director testified through affidavit, cross-examination, examination by me and re-cross examination (Ex. D; Tr. 67-77, 77-84, 85-86).
At the conclusion of the testimony, the Parties agreed that District Representative would speak with the CPSE Administrator regarding whether the CPSE had recommended Student receive services on a 12-month versus a 10-month basis and then email Parent’s Attorney and me (Tr. 88-89, 90-91). If after receiving that email the Parties wished to be heard further, I would entertain a request to hold additional proceedings (Tr. 89-90).
I denied the District’s application to require Parent’s appearance, finding that I had “no reason to believe that this contract wasn’t entered into by the parties” (Tr. 90). District Representative renewed their request to have Parent testify, contending that Director’s testimony was insufficient to prove that the contract was entered into by Parent (Tr. 92). I again denied the request, explaining that, as an attorney, Parent’s Attorney is “presumed to file things that they believe are to be accurate and that there’s no indication that the parent is not a party to the contract” (Tr. 93). Additionally, the District could have met with Parent at a resolution meeting, but the District failed to hold one (Tr. 93). Parent was not required to appear at the PHC or the Status Conference and I was not requiring their presence at the hearing (Tr. 93).
District Representative presented a closing statement (Tr. 96-97), followed by Parent’s Attorney (Tr. 98-101).
On October 11, 2023, by email, District Representative confirmed that “the student was recommended a 12-month program for the June 2021 IEP” (IHO Ex. I-2).
On October 11, 2023, by email, I asked the Parties to let me know by end of business that day if either Party wished to add anything to their closing statement or amend their closing statement (IHO Ex. I-1). Neither Party responded.
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 Owner credible.
Student and Parent reside in New York City, and Student is attending Private School for the 2023-2024 school year (Ex. A). Private School is located within the geographic boundaries of the DOE.
On June 2, 2021, the CPSE convened to determine Student’s eligibility for services through the CPSE and, if eligible, to develop an IEP for the 2022-2023 school year (Ex. B-1, 2). According to the Stanford Binet Intelligence Scale-5th Edition, Student’s Verbal, Non-Verbal and Full Scale IQ Scores were in the Borderline range (Ex. B-2). Student’s Adaptive Behavior Composite score was in the Moderately Low range (Ex. B-2). Per the Preschool Language Scale, 5th edition, “and clinical opinion,” Student presented with “significant receptive and moderate expressive delays in language skills,” and their Cognitive, Language, Social and Daily Living skills were assessed at the “Severe Developmental Delay” range (Ex. B-2). Their fine motor skills were assessed in the Low Average to Average range (Ex. B-2).
Regarding specific skills, Student had difficulty following simple two-step instructions (Ex. B-2, 3), could not understand simple reasoning questions or “basic concepts,” and could not respond to questions about a story read to them (Ex. B-2). Student did not know their age, birthday or address, could not label shapes, had difficulty sorting shapes, and did not demonstrate an understanding of qualitative concepts (Ex. B-3). Student could not establish 1:1 correspondence, identify basic body parts, complete puzzles, or assemble blocks in a tower (Ex. B-3). Student required frequent refocusing and spoke randomly or “jabber[ed] indecipherably” (Ex. B-2). Socially, Student was “very impulsive” and would touch everything, including people (Ex. B-3). Student could not participate in group lessons or activities, play turn-taking games, or play appropriately with toys (Ex. B-3). Student demonstrated decreased attention span, sensory seeking behaviors, decreased sitting tolerance and poor auditory filtering skills (Ex. B-3-4).
The CPSE classified Student as a Preschool Student with a Disability (Ex. B-1, 2). The CPSE recommended the following services: SEIT services, to be provided in a group of three, two hours per day, five days per week, to be administered in REDACTED; SLT to be provided as an individual service, three times per week for 30 minutes, to be administered in REDACTED; and OT to be administered in a group of two, two times per week for 30 minutes (Ex. B-1, 11). The
CPSE further determined that Student requires verbal and visual cueing, positive reinforcement, repetition, chunking of information, simplification of directives, small group instruction, and verbal preparation and modeling (Ex. B-4). The CPSE recommended that all services be provided on a 12-month basis (Ex. B-1; IHO Ex. I).
The 2023-2024 School Year
On May 11, 2023, Parent signed a letter sent by the DOE and printed on “NYC Public Schools” letterhead stating that they had “placed [their] child in a New York City non-public school at [their] expense and want[ed] [Student’s] special education services to continue to be provided next school year” (“the June 1st letter”) (Ex. I).
The CSE did not convene in advance of the 2023-2024 school year to develop a new IEP or an Individualized Education Services Program (“IESP”) for Student. Thus far, the District has not provided any services to Student for the current school year (Ex. A; PHC Tr. 12; Tr. 52, 53-54, 62-63, 96, 98).
On July 1, 2023, Parent signed a contract with Provider Agency (Ex. C). Owner also signed it (Ex. C-2; Tr. 82). Owner was in direct contact with Parent about the contract (Tr. 83), but could not recall if Parent came to the office to sign the document or if Owner spoke with Parent by phone and had them electronically sign it (Tr. 83-84). Pursuant to the contract, Parent “confirmed their understanding that [Student] is entitled to receive funding or reimbursement from the NYC DOE” for various services (Ex. C-1). Although the contract lists services recommended on the June 2021 IEP, the contract lists the SEIT services[10] as an individual service to be administered 10 hours per week and the OT as an individual service (Ex. C-1). Per the contract, Parent “confirms that the DOE has not offered any suitable providers to [Student] in connection with the recommended services . . . for the 2023-2024 school year” (Ex. C-1). The contract further states that Parent will retain counsel and file a DPC, but that Parent is liable for the “full amount for all recommended services . . . in the event that Student is unable to secure funding from the DOE or elsewhere” (Ex.
C-2). Parent is to pay for the services upon completion of the case pending in connection with the DPC (Ex. C-2). Provider Agency charges $195 per hour for SETSS/SEIT services, and $250 per hours for SLT and OT (Ex. C-2).
Provider Agency began administering SETSS, SLT and OT to Student in July 2023 for the 12-month 2023-2024 school year (Tr. 71-72, 80).
Owner of Provider Agency is involved with the intake process, which is used to determine whether the Agency can provide appropriate services to a prospective student (Ex. D-2; Tr. 68-70). As part of the process, Provider Agency reviews the student’s: IEP, including the goals listed on it; evaluations; progress reports; and other clinical materials (Ex. D-2; Tr. 68-70). Provider Agency also conducts their own evaluations, using screening tools such as the Fountas and Pinnell assessment for reading and other assessment tools for math (Tr. 68, 70, 71). Provider Agency does not conduct classroom observations as part of the intake process, but does obtain reports from teachers from prior school years (Tr. 71). The Agency then speaks with the parents to understand their concerns (Tr. 68). Owner assigns an educator to the student based upon the expertise needed for that student (Ex. D-2; Tr. 68, 70). Owner also works closely with the supervisory team for each student (Ex. D-2). Although Student received services through Provider Agency during the 2022-2023 school year, Provider Agency administered new evaluations prior to the start of the 2023-2024 school year “to see where the child [was] at at the start of the new grade” (Tr. 81).
Student’s SETSS are administered by SETSS Providers #1 and #2 (Ex. D-3). Each SETSS Provider is certified in New York State (“NYS”) to teach students with disabilities from birth through Grade 2 (Ex. D-3; Ex. E; Ex. G). They are also trained and experienced in teaching literacy and comprehension to school-aged children and adolescents (Ex. D-3). Although Student’s services are provided in REDACTED (Tr. 78), neither SETSS Provider holds a Bilingual Education Extension Certificate (Ex. E; Ex. G). SETSS are provided partially in the classroom and partially outside of it (Tr. 72). The push-in services are provided at Student’s school and are designed to help “incorporate and to integrate the skills being taught out of the classroom into the class” (Tr. 72-73). The pull-out services are administered on a 1:1 basis, usually inside the school but in a different room (Tr. 73, 79). The 10 hours per week are generally broken down into one hour in the morning and one hour in the afternoon each school day (Tr. 79-80).
Student’s OT is provided by a NYS licensed Occupational Therapist (Ex. D-3; Ex. F; Tr. 73). Occupational Therapist conducted a “comprehensive evaluation” of Student before services began and created goals for Student based on that evaluation (Tr. 73-74). Occupational Therapist maintains contact with the SETSS providers to ensure OT skills are carried over into the classroom (Tr. 74). OT is provided as an individual service because 1:1 service gives Student “the best . . . outcome” (Tr. 78, 79).
Student’s SLT is provided as an individual service by a NYS licensed Speech-Language Pathologist (“SLP”) (Ex. D-3; Ex. H; Tr. 79). SLP also created goals for Student and provides SLT in school (Tr. 75).
In addition to providing 1:1 service to Student and creating goals, SETSS Providers #1 and #2, SLP and Occupational Therapist prepare for sessions and meet with teachers and parents (Ex. D3; Tr. 75). To track progress, the providers conduct informal quarterly assessments, consistently meet with other providers and staff, conduct direct observations in the classroom, write session notes and draft quarterly progress reports (Ex. D-3; Tr. 75, 76). Provider Agency continually checks to determine whether progress is made, and providers create new goals as Student achieves goals (Tr. 75-76). Provider Agency meets with parents to discuss the student’s progress (Tr. 76). One progress report should have been drafted by the time of the DPH (Tr. 76). Owner “believe[s]” that progress reports are provided to parents because the Agency has “open transparency” (Tr. 76). Session notes are drafted after the session has been provided to document what work the provider did with the student and how the student performed (Tr. 77). Student is making progress with these services (Ex. D-3).
Owner testified that the rates of $195 per hour for SETSSs and $250 per hour for SLT and OT are “less than or equal to the current market rate” for those services in their neighborhood (Ex. D-2). A portion of the charged rates funds: 1:1 supervision; educational resources and support; team coordination; professional development and materials; employment taxes; administrative costs; and overhead costs (Ex. G-1). Provider Agency offers professional development training to its providers, with a focus on special education teaching methods and research-based teaching strategies (Ex. D-2).
Owner believes Student requires the continuation of the ten periods of SETSS, three sessions of SLT, and two sessions of OT each week for the extended 2023-2024 school year given Student’s academic and social delays (Ex. D-3-4). Specifically, Student requires 12-month services because when Student is away for a long holiday break, “there is a relapse in [Student’s] ability” requiring Provider Agency to “spend time to repeat it again and . . . get [Student] back up to whether [they] need[] to be at . . . It’s a consequence for [Student] when there’s a long break without services” (Tr. 81, 85). For example, when Student returned from the REDACTED break during the 20222023 school year, Provider Agency “literally ha[d] to reteach the reading again” (Tr. 81-82). Student forgot some of the letter sounds and in math they forgot counting skills (Tr. 82, 85-86). In general, Student requires “constant repetition” and “learning consistently every single day” (Tr. 82). Although Owner does not administer services to Student, Owner is aware of Student’s performance through the providers (Tr. 85).
LEGAL STANDARDS AND FRAMEWORK
FAPE
The Individuals with Disabilities Education Act (“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). Under State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made. See Educ. Law § 3602-c(2). Then, the district of location's CSE must review the request and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]." Educ. Law § 3602-c(2)(b)(l).
Burden of Proof
Under the IDEA and the NYS Education Law, school districts have the burden of proof that a FAPE has been provided to the student, except that where tuition reimbursement is sought, the parent has the burden of proof with respect to the appropriateness of the parent’s chosen educational placement. See Education Law § 4404(1)(c); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012). As explained more fully below, SETSS cases have been treated as a hybrid between unilateral placement theory cases, see e.g., Application of a Student with a Disability, Appeal No. 21-101, and pure compensatory education cases. See, e.g., Foster v. Bd. of Educ. Of the City of Chicago, 611 Fed. App’x 874, 878-79 (7th Cir. 2015) (compensatory education includes reimbursement for out-of-pocket educational expenses). Accordingly, I first must determine whether the District met its burden to demonstrate that its offered program was reasonably calculated and implemented to provide this Student with educational benefits.
The Provision of a FAPE on an Equitable Basis I find that the District failed to offer Student a FAPE on an equitable basis for the 2023-2024 school year.
District Representative did not concede that the District failed to provide Student a FAPE on an equitable basis for the 2023-2024 school year nor did they explain how the District provided Student a FAPE on an equitable basis to Student. Despite bearing the burden of proof on this issue, District Representative declined to proffer exhibits (Tr. 53) and declined to present witnesses (Tr. 61-62). When specifically asked whether the District was conceding Prong One, District Representative stated, “[t]he District is not conceding, but the District is not putting on a Prong I case” (Tr. 54). They declined to present an opening statement (Tr. 62-63), and in their closing statement, District Representative stated that they “did not submit a Prong I on this matter” (Tr. 96-97).
I find that on May 11, 2023, Parent informed the DOE that they had placed Student in a private school and were not seeking funding for tuition (Ex. I). However, Parent specifically requested that the DOE provide special education services to Student for the 2023-2024 school year (Ex. I). I further find that the District did not rebut Parent’s claim that the CSE did not convene in advance of the 2023-2024 school year to develop a new IEP or an IESP for Student. Parent is entitled to a presumption as to the truth of the asserted facts underlying their claims that are contained in the documentary evidence and testimony to the extent they are credible and not contradicted by the hearing record.
In addition to finding that the District failed to offer Student a FAPE on an equitable basis by failing to convene a CSE meeting, I find that the District’s failure to implement any services deprived Student of a FAPE on an equitable basis for the 2023-2024 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 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.
Here, the District provided no reason for its failure to implement the services the CPSE recommended pursuant to the June 2021 IEP. The District did not rebut Parent’s claims that, as of the date of the DPH, the District has not provided any services to Student for the current school year (Ex. A; PHC Tr. 12; Tr. 52, 53-54, 62-63, 96, 98). District Representative stated that they were “[u]nable to confirm” whether the District provided any services to Student for the 2023-2024 school year (Tr. 54).
The DOE had the obligation to provide services to Student. In failing to do so, I am constrained to find that the DOE failed to provide Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic school located within the school district. Accordingly, I find that the District failed to provide Student a FAPE on an equitable basis for the 2023-2024 school year.
Appropriateness of Parentally Selected Services Before proceeding to the remedies, I must address the District’s claim that Parent has not met their burden to prove the appropriateness of the services Parent selected (Tr. 96-97). I find the District’s claim meritless.
District Representative contends that Parent failed to meet their burden to prove the appropriateness of the services because they “failed to provide any objective evidence or data . . . or to suggest that the student has made meaningful progress” (Tr. 96-97). Per District Representative, the only evidence regarding Student’s progress is a “vague statement” by Owner that Student “has already shown signs of progress with [their] service providers” and that the providers “created session notes and provided quarterly reports detailing the student’s progress” (Tr. 97). District Representative asserts that Parent failed to provide evidence regarding progress or the appropriateness of the services (Tr. 97).
Parent’s Attorney counters that the services are appropriate because “the agency did implement the program as recommended on the undisputed IEP” (Tr. 98). Further, Owner testified that the providers measure Student’s progress by taking session notes and drafting progress reports (Tr. 98). Per Parent’s Attorney, a finding of progress is not necessary to prove the appropriateness of services pursuant to Prong Two (Tr. 98). Here, each of the providers is properly licensed or certified at the appropriate grade level for Student (Tr. 98-99).
Initially, as I have determined that the District failed to convene in advance of the 2023-2024 school year and failed to implement the services it recommended in the June 2021 IEP, I find that Parent was left with no option but to secure all services for Student. I further find that the services Parent selected are appropriate. Among the considerations in determining whether a private placement selected by a parent is appropriate are whether the placement is likely to produce progress, not regression. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir 2017), quoting Walczak, 142 F.3d at 130. Moreover,
No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specifically designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364-365 (2d. Cir 2006). A similar analysis lends itself to a case like this, where a parent selects services for their child after the District fails to implement the operative IEP or IESP.
First, I find that the services are appropriate because they are the services recommended by the CPSE and are being provided by appropriately licensed providers. SETSS Provider #1 and #2 are each certified in NYS to teach students with disabilities from birth through Grade 2, and are each trained and experienced in teaching literacy and comprehension to school-aged children (Ex. D-3; Ex. E; Ex. G). Student is in 1st grade (Ex. A-1; Ex. I; Tr. 72). They are providing two hours of SETSS per day, for a total of 10 hours per week, in REDACTED, as recommended on the June 2021 IEP ( Ex. B-1, 11; Ex. C-1; Ex. D-3; Tr. 79-80). Similarly, the Occupational Therapist and the SLP are each licensed by NYS and are each providing services recommended on the June 2021 IEP (Ex. D-3; Ex. F; Ex. H; Tr. 73, 79).[11]
Second, I find that the services are appropriately tailored to meet Student’s needs. Owner testified that as part of the intake process, Provider Agency: reviews various documents, such as the student’s IEP, evaluations and teacher reports (Ex. D-2; Tr. 68-70, 71); conducts their own evaluations (Tr. 68, 70, 71); and speaks with the parents to understand their concerns (Tr. 68). Owner then matches the student to an educator who possesses the expertise needed for that student (Ex. D-2; Tr. 68, 70). Furthermore, even though Student received services through Provider Agency last school year, the Agency administered new evaluations to determine Student’s needs “at the start of the new grade” (Tr. 81). Occupational Therapist also conducted a “comprehensive evaluation” of Student before services began and created goals for Student based on that evaluation (Tr. 73-74).
Additionally, I find that the services are being provided in a manner to ensure Student’s needs are being met. For example, the push-in SETSS are designed to help “incorporate and to integrate the skills being taught out of the classroom into the class” (Tr. 72-73), and Occupational Therapist maintains contact with the SETSS Providers to ensure OT skills are carried into the classroom (Tr. 74).
I also find that Provider Agency continually checks to determine whether progress is made, and the providers monitor and document progress in various ways (Ex. D-3; Tr. 75-77). Notably, the providers modify Student’s goals as Student achieves them, further demonstrating that the services are tailored to meet Student’s needs (Ex. D-3; Tr. 75-76).
Finally, although Owner does not personally administer services to Student, I find that Owner had access to relevant information which formed the basis for their testimony. Owner works closely with the supervisory team for each student (Ex. D-2; Tr. 85). In addition to testifying about the intake process and how the providers work with Student, in general, Owner provided specific information about Student’s need for 12-month services. For example, Owner discussed how Provider Agency has to reteach material when Student is away for long breaks, including last year when Student forgot letter sounds and counting skills (Tr. 81-82, 85-86).
Accordingly, I find that Parent has established by a preponderance of the evidence that the services Parent selected are appropriate for Student.
REMEDIES
The remedy for a school district’s failure to provide appropriate equitable services required under Education Law § 3602-c is similar to the remedy for a school district’s failure to provide appropriate services under the IDEA. See Application of a Student with a Disability, Appeal No. 20-023, citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 (D.Conn. 2017). Under the IDEA, courts can “grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. See Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA (see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 [2d Cir. 2002]), “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme Bd. of Educ., 790 F.3d at 454).
Moreover, the State Review Office (SRO) has held that when, like here, the parent has not already paid the SETSS provider, and seeks direct funding rather than reimbursement, the “matter is in a subset of more complicated cases in which the financial injury to the parent and the appropriate remedy are less clear.” Application of a Student with a Disability, Appeal No. 20-115 citing E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014) (holding that equitable considerations allow for direct payment for tuition where the parents were legally obligated to make payments but had not done so due to a lack of financial resources). Because Parent had to find a provider on their own and because “caselaw supports reimbursement and direct remedies in a unilateral placement case,” the SRO has determined that the question of whether a SETSS provider should be paid directly is somewhat similar to the Burlington/Carter framework, which “forecloses any complete disavowal of the parent’s burden of production and persuasion related to the private, unilateral services obtained by the parent.” Application of a Student with a Disability, Appeal No. 20-115 (finding, inter alia, the analysis "unworkable to the extent that the SETSS services can be construed as a state-approved option”).
Generally, in determining whether a provider agency’s rates are reasonable and appropriate under the circumstances, various factors have been found relevant, including: the provider’s explanation of the rate, including its costs and the qualifications of its instructors (Application of a Student with a Disability, Appeal No. 20-140 [while “[g]enerally, teachers at a unilateral placement need not be State-certified . . . there must be objective evidence of special education instruction or supports that are specially designed by . . . providers . . . who have reasonable qualifications that are specifically related to the student’s deficits”]); the value that specialized certification, such as a bilingual extension, adds to instruction (Application of a Student with a Disability, Appeal No. 21-183 [approving compensatory SETSS by a bilingual reading specialist at a rate not to exceed $200 per hour]); and the parent’s efforts to locate a DOE-approved SETSS provider from a list provided by the District to the parent (Application of a Student with a Disability, Appeal No. 21-096). Additionally, one must look to whether the parent directly paid the provider or is contractually obligated to pay the provider in the event the District is not ordered to fund SETSS at the requested rate. See e.g. Application of a Student with a Disability, Appeal No. 21-068 (holding that “it is not appropriate equitable relief . . . to require the district to either reimburse the parent for the costs of SETSS or to directly fund SETSS” where “there is inadequate proof that the parent has expended any funds to pay for SETSS . . . or is legally obligated to do so”). Ultimately, in light of these factors, I must determine whether the requested rate is unreasonable. See e.g., Application of a Student with a Disability, Appeal No. 21-138 (determining that “there is no basis for a finding that the rate of $175 was unreasonable”). Moreover, generally, I would 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]).
Here, Parent’s Attorney and District Representative agreed that Parent would seek funding for services at “a reasonable market rate” instead of at the “enhanced rate” Parent initially requested (Ex. A-3; PHC Tr. 12-13; Tr. 38-39, 49-50, 52, 99). For the reasons described below, I am ordering that Provider Agency be paid at a “reasonable market rate” for the SETSS, SLT and OT it is providing during the 2023-2024 school year. However, I am ordering that the “reasonable market rate” shall be consistent with rates that have been paid by the DOE’s Implementation Unit for comparable SETSS, SLT and OT within six months of the date of this Order, and is not to exceed $195 per hour for SETSS and not to exceed $250 per hour for SLT and OT. I base my finding that “a reasonable market rate” is warranted on the below facts.
First, I find that Parent signed a contract with Provider Agency on July 1, 2023, and the contract states that even though Parent will retain counsel and file a DPC, Parent is liable for the “full amount for all recommended services . . . in the event that Student is unable to secure funding from the DOE or elsewhere” (Ex. C-2). Additionally, Parent is obligated to pay for the services upon completion of the case pending in connection with the DPC (Ex. C-2).
Second, as explained above, for the most part, I find that the SETSS Providers, Occupational Therapist and SLP are all properly qualified to administer services to Student (Ex. D-3; Ex. E; Ex. F; Ex. G; Ex. H; Tr. 72-73, 78-80).
Accordingly, I am ordering that the District pay Provider Agency “a reasonable market rate” for group SETSS, individual SLT and group OT in accordance with my Order below.
Direct Funding for SETSS, SLT and OT
Parent seeks direct funding to Provider Agency for the SETSS, SLT and OT that are being provided during the 2023-2024 school year (Ex. A-3; PHC Tr. 12-13; Tr. 38-39, 49-50, 52, 99). As explained above, Parent is legally obligated to pay Provider Agency $195 per hour for SETSS and $250 per hour for the related services (Ex. C).
I find that Parent has not made any claim regarding their inability to pay. However, as I have found that the District failed to provide Student services on an equitable basis for the 2023-2024 school year and that the services are appropriate, I find that Parent is not required 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 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”). I, therefore, find that Parent is entitled to the requested form of payment.
As the Contract is already in the hearing record, it need not be re-submitted (Ex. C). However, as set forth in my Order below, Provider Agency must submit invoices for services rendered and an accompanying sworn affidavit attesting that the services billed for were provided before receiving funding.
Funding for a 12-Month School Year
I find that Student is entitled to funding of SETSS, SLT and OT during a 12-month school year as recommended by the June 2021 IEP (Ex. B-1; IHO Ex. I). I further find that a 12-month school year comprises 42 weeks. A 10-month school year comprises 36 weeks, a reflection of the 180 instructional days divided by five days per week.[12] The summer session consists of approximately six weeks of programming.[13]
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 the Department of Education (“DOE”) shall fund for the 12-month, 42-week 2023-2024 school year, group Special Education Teacher Support Services (“SETSS”), with the group not to exceed three students, two hours per day, five days per week to be administered in REDACTED by a licensed special education teacher of Parent’s choosing, and at a “reasonable market rate” consistent with rates that have been paid by the DOE’s Implementation Unit for comparable services for group SETSS within 6 months of the date of this Order. This “reasonable market rate” shall not exceed $195 per hour; and it is further
ORDERED THAT the DOE shall pay the provider listed above within 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 the DOE shall fund for the 12-month, 42-week 2023-2024 school year, individual Speech Language Therapy (“SLT”) three times per week for 30 minutes to be administered in REDACTED by a licensed speech pathologist of Parent’s choosing, and at a “reasonable market rate” consistent with rates that have been paid by the DOE’s Implementation Unit for comparable services for individual SLT within 6 months of the date of this Order. This “reasonable market rate” shall not exceed $250 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 the DOE shall fund for the 12-month, 42-week 2023-2024 school year group Occupational Therapy (“OT”), with the group not to exceed two students, two times per week for 30 minutes to be administered by a licensed occupational therapist of Parent’s choosing, and at a “reasonable market rate” consistent with rates that have been paid by the DOE’s Implementation Unit for comparable services for group OT within 6 months of the date of this Order. This “reasonable market rate” shall not exceed $250 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 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.
November 8, 2023
(signed electronically)
Ginger James
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX A- REDACTION IDENTIFICATION PAGE
| Redacted Information | Term Used In FOFD |
|---|---|
| REDACTED | Student |
| REDACTED | Parent |
| REDACTED | Parent’s Representative |
| REDACTED | Parent’s Attorney |
| REDACTED | District Representative |
| REDACTED | Home District |
| REDACTED | Service District |
| REDACTED | Private School |
| REDACTED | Owner and Educational Director of Provider Agency |
| REDACTED | Provider Agency |
| REDACTED | SETSS Provider #1 |
| REDACTED | SETSS Provider #2 |
| REDACTED | Speech-Language Pathologist |
| REDACTED | Occupational Therapist |
APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
| Exhibit | Title of Document | Date | Number of Pages |
|---|---|---|---|
| A | Due Process Complaint | 07/25/2023 | 6 |
| B | Individualized Education Program | 06/02/2021 | 14 |
| C | Parent Service Contract | 09/28/2023[14] | 2 |
| D | Provider Affidavit- REDACTED | 09/28/2023 | 4 |
| E | Provider Credentials- REDACTED | 12/08/2022 | 1 |
| F | Provider Credentials- REDACTED | 03/31/2025[15] | 1 |
| G | Provider Credentials- REDACTED | 10/27/2021 | 1 |
| H | Provider Credentials- REDACTED | 12/14/2018 | 1 |
| I | June 1st Letter | 5/11/2023 | 1 |
DOE EXHIBITS
NONE
IHO EXHIBITS
| Exhibit | Title of Document | Date | Number of Pages |
|---|---|---|---|
| I | Emails Regarding Whether Services Were Recommended for 12 Months or 10 Months | 10/11/2023 | 3 |
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] Although the DPC is dated July 25, 2023, it was filed on July 24, 2023.
[3] The DPC does not delineate whether services were to be provided in a group or individually or whether they were to be administered in REDACTED (Ex. A-1-2). The DPC also states that the SEIT services were to be provided 10 hours per week (Ex. A-2). Throughout this decision, I have listed the services as recommended by the CPSE on the June 2021 IEP (Ex. B-1, 11).
[4] References to the transcript from the Pre-Hearing Conference conducted on August 28, 2023 are denoted “PHC Tr.” References to the transcript from the Status Conference conducted on September 14, 2023 are denoted “SC Tr.” References to the Due Process Hearing conducted on October 10, 2023 are denoted “Tr.”
[5] Although the CPSE recommended SEIT services, Provider Agency is administering SETSS (compare Ex. B-1, 11 with Ex. D-3; Tr. 71-72). Neither Party raised an issue regarding the difference between SEIT services and SETSS. I find that SEIT services are generally reserved for preschool students with disabilities. See Educ. Law § 4410(1)(k); 8 NYCRR § 200.16(i)(3)(ii). I further find that SETSS is not defined in the State continuum of special education services. See 8 NYCRR § 200.6; see e.g., Application of a Student with a Disability, Appeal No. 23-018. However, given that Student is in 1st grade (Ex. A-1; Ex. I; Tr. 72), I find that SETSS is a proper special education service for Student. I further note that Provider Agency charges the same rate for each service (Ex. C-2).
[6] Initially, Parent sought direct funding at an “enhanced rate” for the SEIT and related services (Ex. A-3; PHC Tr. 12-13; Tr. 52). The Parties later agreed that Parent would seek an order funding services at “a reasonable market rate” (Tr. 38-39, 49-50, 99).
[7] Parent also invoked pendency (Ex. A-2). The Parties were able to resolve pendency without my intervention.
[8] 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.
[9] A letter dated June 1, 2023 is listed on the Parent’s Disclosure Cover Sheet as Exhibit J. However, this appears to be a typographical error as it is marked Exhibit I. In this decision, I have referred to the exhibit as Exhibit I.
[10] As previously noted, although the contract indicates that Provider Agency is administering SEIT services, Owner testified that they are administering SETSS (compare Ex. C-1 with Ex. D-3).
[11] I do recognize that SETSS and OT were to be provided in a group setting, but are being provided as individual services. Under the totality of the circumstances presented here, I do not find that the provision of these services in this manner renders them inappropriate. See generally Application of a Student with a Disability, Appeal No. 23-033 (finding the provision of individual rather than group services not inappropriate, in part, because parents “may be afforded some leeway in locating services,” noting that identifying an appropriate group setting in the private school may not have been possible and that “the district could have avoided this problem by implementing the recommendation for direct group SETSS”).
[12] See https://www.schools.nyc.gov/about-us/news/2023-2024-school-year-calendar (last visited November 7, 2023). See also generally Application of a Child with a Disability, Appeal No. 23-033, FN 10.
[13] See https://www.schools.nyc.gov/enrollment/summer/grades-k-8 (last visited November 7, 2023).
[14] Parent’s Attorney clarified on the record that the Disclosure Cover Page should have reflected the date of the contract as July 1, 2023 (Tr. 54-55).
[15] Parent’s Attorney clarified on the record that the Disclosure Cover Page reflects the dates upon which the credentials listed as Exhibits E, G and H were issued, whereas Exhibit F reflects the date the credential is to expire (Tr. 57-58).