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FINDINGS OF FACT AND DECISION
Case Number: 252552
Student’s Name: [REDACTED]
School District: [REDACTED]
Impartial Hearing Officer: Richard J. Zeitler, Jr.
Date of Filing: 08/14/2023
Hearing Requested by: Parent
Date(s) of Hearing: [REDACTED]
Record Close Date: 12/03/2023
Date of Decision: 12/17/2023 Case No. [REDACTED]
Names and Titles of Persons Who Appeared [REDACTED]
For the Student:
[REDACTED], Parent Attorney [1]
[REDACTED], Private SLP Agency Director
[REDACTED], Parent Student
For the Department of Education:
[REDACTED], Department Attorney
[REDACTED], [REDACTED] Case Resolution Manager
Names and Titles of Persons Who Appeared [REDACTED] [REDACTED], Parent Attorney [REDACTED], Parent For the New York City Department of Education [REDACTED], Department Attorney Case No. [REDACTED]
Background
On August 14, 2023, the Parent, by and through the Parent’s Representative, filed a due process complaint (DPC) against the New York City Department of Education (DOE or Department), on behalf of the Student, pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”).[2] The DPC asserts that the Committee on Preschool Special Education (CPSE) denied the Student a free and appropriate public education (FAPE) both procedurally and substantively for the 2022-2023 and 2023-2024 school years, in failing to evaluate the Student until March of 2023; in failing to develop an individualized education program (IEP) for the Student until May 4, 2023; and in failing to implement the Speech-Language Therapy (SLT) services recommended in the IEP.[3] As a result, the Parent seeks SLT be ordered as compensation for lost services during the 2022-2023 school year and the 2023-2024 school year to date, an order for SLT to continue through the 2023-2024 school year, that services be paid at an enhanced rate, and that the Parent be reimbursed for SLT services, including an evaluation she obtained for the Student.
Procedural History
After being appointed as the impartial hearing officer (IHO) over this matter, I held a pre-hearing conference on September 28, 2023, and I issued a Pre-Hearing Conference Summary and Order on October 10, 2023.[4] I also issued an Order of Extension on October 31, 2023.[5] The merits hearing was held before me on [REDACTED]. At the hearing, all the parties’ exhibits were admitted without objection.[6] The Department produced as its witness the CSE Case Resolution Manager, while the Parent produced the Private Speech-Language Pathologist (SLP) Agency Director and the Parent herself as witnesses. [7] Case No. [REDACTED]
Findings of Fact
The following was not in dispute. The Student is [REDACTED] years old and has, for the school years in question, attended the Preschool.[8] The DOE conducted its initial evaluation of the Student on March 28, 2023.[9] The Department has not offered a SLT provider to the Student to date, and the IEP has gone unimplemented.[10] The Student has been classified by the CPSE as a “Preschool Student with a Disability.”[11] In developing its recommended program in the May 4, 2023, IEP, the CSE reviewed: the March 28, 2023, SLT evaluation; a March 28, 2023, classroom observation report; and a March 29, 2023, psychological evaluation. [12]
The findings in the DOE SLT evaluation include that the Student’s speech intelligibility was 25% when considered in context and 10% without context.[13] Normal intelligibility is 75% for a three-year-old and 100% for a four-year-old.[14] The DOE SLT Evaluator determined that the Student has “significant delays in articulation skills[.]”[15] His peers “do not always understand him” and he typically “does not engage in conversations with friends[.]”[16] On this information, the IEP team concluded that the Student was “not yet able to demonstrate age-appropriate speech intelligibility” and it recommended “Speech-Language Therapy” as an “individual/direct” service “2x/week” for “45 minutes” each session (2x45/week), at an “early childhood program selected by Parent” to begin “6/5/23” for the ten-month school year. [17]
Department’s Case
In support of its case, the Department offered into evidence: the IEP; a Notice of Recommendation signed by the Parent on May 5, 2023, wherein the Parent consented to the recommended services that were described in the IEP [18]; the March 28, 2023, DOE speechCase No. [REDACTED] language evaluation, conducted by the DOE SLT Evaluator 19; and the affidavit of the CSE Case Resolution Manager. 20
CSE Case Resolution Manager
The CSE Case Resolution Manager (Manager) testified as follows. Her duties include “reviewing student case files and conferring with families to resolve matters regarding the implementation of Special Education student programs and services.” 21 She reviewed the Student’s IEP in evidence, including the recommendation for SLT 2x45/week. 22 Because the Parent consented to the services on May 5, 2023, and the IEP services were to be implemented on June 5, 2023, near the end of the ten-month 2022-2023 school year, the Student would be entitled only to six hours of SLT, although he is eligible to continue receiving those services for the 2023-2024 school year. 23
Upon her “experience and research, an appropriate market rate for Speech-Language Therapy services for similarly-situated students is in the range of between $100.00 and $140.00 per hour.”[24] She is aware that some providers charge as much as $250.00 per hour but she considers “rates exceeding $140.00 per hour to be above typical market rate.”[25] Finally, it is her opinion that the Student did “not need an independent speech-language therapy evaluation because the NYCDOE evaluation conducted on March 28, 2023, found the [S]tudent eligible for services[.]” [26]
During cross-examination, and upon further questioning, the Manager testified as follows. She was not part of the CPSE team that developed the IEP, and she does not know what documents the team considered in recommending the Student’s program.[27] Her understanding of 19 See Ex. 3. 20 See Ex. 4. 21 Ex. 4 ¶ 5. 22 See id. ¶ 7. 23 See id. ¶ 9. The affidavit states that the Student would be eligible for 12 hours of SLT for the 2022-2023 school year; however, the Manager testified at the hearing that this was based upon the Parent’s consent date of May 5, 2023, but because IEP services did not begin until June 5, 2023, that is the day services would have begun, which left only 6 hours (presumably eight-45 minute sessions) before the end of the ten-month school year. See Tr. at pp. 66 to 71. Case No. [REDACTED] rates is based upon her knowledge and experience, including from “hav[ing] worked alongside of speech and language pathologists who work . . . in private practice[.]”[28] She also has personal friends who are SLPs.[29] The range she gave of $100.00 to $140.00 per hour is based upon her knowledge of what SLPs charge, not that those rate are necessarily the only rates the DOE has paid, as well as from the SLPs she knows personally.[30] Her research was based in part upon these “personal relationships with speech and language pathologists, as well as information that could be easily gathered on the internet[,]”[31] and upon her experience in negotiating resolution agreements with parents and guardians. [32]
Parent’s Case
In support of her case, the Parent offered into evidence: the DPC [33]; the IEP [34]; Parent emails with the DOE [35]; the Parent’s private speech-language evaluation, dated December 9, 2022 [36]; the DOE speech-language evaluation [37]; invoices for the December 9, 2022 private speech-language evaluation and SLT services performed from March 7, 2023, to May 21, 2023 [38]; the Private SLP Agency’s rate sheet [39]; the DOE’s Due Process Response [40]; and the Parent’s affidavit. [41]
Private SLP Agency Director
The Private SLP Agency Director (Director) testified as follows. She runs the Private SLP Agency (Agency). The factors that are considered when determining the rate for SLT include “the time required to prepare for . . . sessions, ongoing analysis . . . for each session, the Case No. [REDACTED] quality of care and the skilled clinicians that [agencies are] hiring, as well as . . . collaborat[ion] with other team members on a regular basis[,]” including “contacting the school providers” and any special education teachers working with the student; “overhead, administrative costs, operational costs, education and training expenses, [and] supplies[.]”[42] She oversees the work of the Agency’s individual therapists, “on a weekly or biweekly basis for check-ins” and asks “[h]ow’s therapy going? Any issues?”[43] She is the liaison among the parents, the therapists, and the schools.[44] From 2015 to 2022 she and the Agency had determined their rate for this work should be $250.00 per hour; in January of 2023, they reassessed and determined that the rate should now be $300.00 per hour.[45] There is a community of providers and the Agency’s rate is consistent with that market in the New York City area for similarly qualified providers.[46] A rate between $100.00 to $140.00 per hour “is much, much, much lower than what market rate is right now.”[47] Those are rates the DOE has decided to pay, just as much as there are SLP professors who decide to charge $700.00 per hour – but neither is market. [48]
During cross-examination, and upon further questioning, the Director testified as follows. There are lower rates that the DOE has set when it contracts directly with private SLT providers.[49] There are rates – including the Agency’s market rate – that could be agreed upon between the DOE and a private provider when a student attends a public school that has no SLT providers, and the DOE has exhausted its list of providers for which it gives Related Service Authorizations (RSAs).[50] When a parent seeks private services and requests that the DOE pay for those services, it is possible that the resolution agreement will be for a lower rate, and it is not surprising that a provider might accept a lower rate as part of a resolution. [51] Case No. [REDACTED]
The Agency pays the individual therapist who works with students out of the rate the Agency charges DOE, and the amount therapists are paid “depends on location, the clinician’s experience, timelines . . . a whole lot of variables[.]”[52] Depending on those factors, the Agency will pay individual therapists between 55% and 80% of the rate the Agency charges the DOE. [53] All of the Agency’s therapists have at least master’s degrees, while she believed the DOE would provide services by therapists who have not obtained a master’s degree. [54]
Parent
The Parent testified as follows. Around September of 2022, she began to notice that the Student’s “speech production and intelligibility” was concerning because she “had a lot of difficulty understanding [his] speech and . . . family members were unable to understand him.” [55] During “parent-teacher conferences that we[re held] in October of 2022, the . . . teachers . . . observed his delays in the classroom and they suggested that [she] reach out and get some services for him.[,][56] so she spoke with the school administrators, and “it took some time to actually get a document from [an] administrator which lists all of the available speech providers . . . in order to get an evaluation[.]”[57] She tried some of the contacts on the list but they did not answer her calls or their phone numbers were no longer active.[58] In addition, she “was discouraged from reaching out and doing [it] through the DOE because [she had] heard that the process is very arduous and [the Student] wouldn’t get services for quite a while[,]”[59] so she reached out to several private therapists and found one with what she considered to be reasonable rates who performed an evaluation in December of 2022.[60] In that same month, the Student’s father found a different provider who “said that they c[ould] do [an] evaluation at [the] school in March [2023]” on behalf of the Department. [61] Case No. [REDACTED]
In December of 2022 or January of 2023, the DOE reached out to the Parent to confirm the DOE SLT evaluation in March of 2023.[62] She recalled that they told her March was the first availability.[63] Because the Private SLP Provider had recommended SLT, she began taking the Student for such services on March 7, 2023, and it continued until May 21, 2023, when the Parent stopped the service because it became cost prohibitive. [64]
Credibility
Upon considering the evidence, including all admitted documents and the testimonies of the witnesses, I determine the following. In admitting the documents, I found them all relevant and representative of the facts for which they were offered. They are all therefore credited. As for the witnesses, I found no reason to doubt the veracity of their statements or relevant opinion testimony, except as to the DOE Case Resolution Manager’s opinion testimony, and I credit the witnesses accordingly. The relative weight I afford the exhibits and testimonies will be reflected in the analysis.
Legal Framework Free Appropriate Public Education The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[65] 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.[66] When the education district complies with the procedural requirements set forth in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits, a FAPE has been established. [67]
Substantively, an IEP must include a statement of the student's present levels of academic achievement and functional performance, establish annual goals designed to meet the student's Case No. [REDACTED] needs resulting from the student's disability and enable the student to make progress in the general education curriculum, and must provide appropriate special education and services. [68] Appropriateness means that the IEP accurately reflects the results of evaluations to identify the Student's needs,[69] and that its recommended program provides for the utilization of sufficient special education services.[70] An appropriate program will be “‘likely to produce progress, not regression,’ and . . . [will] afford[] the student with an opportunity greater than mere ‘trivial advancement’” [71]; that is, the IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.”[72] Finally, the school district must demonstrate that its IEP was properly implemented. [73]
Except for circumstances that are not present in the instant matter, the DOE shall have the burden of proof at a Due Process Hearing, including the burden to demonstrate that it provided a student with a FAPE in the development and implementation of its IEPs.[74] If the Department violates a student’s right to a FAPE, IHOs have at their disposal “various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies,”[75] with the only limitation being that the remedy “be appropriate in light of the purpose of the Act,”[76] and that damage awards are not available under the IDEA. [77] Case No. [REDACTED]
Compensatory Education and Services
Compensatory education or services are equitable remedies tailored to meet the unique circumstances of each case.[78] They must be designed to “make up” for past denials of FAPE and place the student in the position they would have been had the district complied with its obligations under the IDEA.[79] “[T]he inquiry must be fact-specific, and [in order] to accomplish the IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.”[80] The compensation may take the form of supplemental special education or in related services, with the goal of fashioning appropriate relief for a denial of a FAPE.[81] The compensation can also be crafted by either a “quantitative” approach (provided equal to the period of the FAPE deprivation),[82] or a “qualitative” approach (provided as needed to address the student’s educational deficits resulting from the FAPE deprivation).[83] Courts have noted, however, that a “flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student’s] educational problems successfully.” [84]
In New York, when there is a lack of FAPE and the parent or guardian seeks a compensation award, the burden lies with the school district to “describ[e] its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that [they] would have been but for the denial of FAPE.”[85] Even where the DOE fails to offer its Case No. [REDACTED]
“position regarding the appropriate compensatory education remedy . . . an outright default judgment awarding compensatory education . . . and all of the relief requested without question . . . is a disfavored outcome[,] even where the district’s conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious[.]” [86]
Notwithstanding the Department’s burden of proof, the Parent should identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the DOE’s failure to provide the Student with a FAPE.[87] The specific award sought must be scrutinized because “services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity[,]”[88] and because “[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education.”[89] Also, a full award may be tempered when a student “did make some advancement over the course of [their] time in . . . school, even though [they] were not presented with what [they] were due under [the] IDEA.” [90]
Analysis
Free Appropriate Public Education
There is no dispute that the May 4, 2023, IEP in evidence describes the program the DOE offered the Student for the 2023-2024 school year, and at least part of the 2022-2023 school year. The Parent has alleged that the Department denied the Student a FAPE for these school years because it offered insufficient services (1:1 SLT 2x45/week in the IEP,[91] versus 1:1 SLT Case No. [REDACTED]
2x60/week requested in the DPC 92); and because it has not implemented the IEP’s SLT services at all, for which the Parent requests a bank of hours, an order for continuing services for the current school year, and reimbursement for the related costs of the private evaluation and SLT sessions paid by the Parent.[93] There is, however, a threshold issue in this matter, namely when the DOE would have owed the Student a FAPE. I will address that first.
Calculation of Start Date for a FAPE
As part of its child find obligations, the DOE must identify all students who have or may have disabilities. Here, the evidence does not bear out the exact date that the DOE knew of the Student’s speech delays; the Parent testified, however, that teachers discussed those delays with her at “parent-teacher conferences [held] in October of 2022[.]”[94] The Parent explained that this was when the teachers “suggested that [the Parent] reach out and get [the Student] some services[.]”[95] Neither party demonstrated whether the DOE sought consent for an evaluation, but the Parent testified that “it took some time to actually get a document from [an] administrator which lists all of the available speech providers . . . in order to get an evaluation[.]”[96] The DOE then conducted its speech-language evaluation on March 28, 2023,[97] which means that the Parent must have consented to an evaluation before that date.
Once the DOE has knowledge of a student suspected of having a disability, that student must be referred to the chairperson of the CSE.[98] “The school district must initiate a referral and promptly request parental consent to evaluate the student to determine if the student needs special education services[,]”[99] and it must issue to the parent a prior written notice that includes the description of the proposed evaluation.[100] The school district has 10 school days to request that the parent consent to an evaluation of the Student.[101] After this, “an initial individual
92 See Ex. A-3. Case No. [REDACTED] evaluation shall be completed within 60 days”[102] and “the [DOE] shall arrange for appropriate special education and services” . . . “[w]ithin 60 school days of the receipt of consent to evaluate for a student not previously identified as having a disability[.]”[103] The NYS State Review Office (SRO) has provided guidance for situations, like here, where “the parent formally consented at some point because . . . the district commenced an evaluation” but the exact date of consent was not provided at the hearing; the SRO held that in such a scenario, the date the district owes a FAPE to the student can be calculated as ten school days from the date the school district had notice of a suspect disability (in the SRO’s case, the date the parent initially registered their child for special education), plus 60 school days to evaluate and develop an IEP, or a total of 70 school days from when the Student was first identified to the district as a student with a disability. [104]
Because the Parent here did not identify the exact date in October she discussed the Student’s delays with his teachers, I will give the DOE the benefit of the time and begin the clock on the last possible school date this conversation could have taken place, which is Monday, October 31, 2022.[105] The tenth school day thereafter was November 16, 2022.[106] The 60th calendar date thereafter (for the DOE to conduct an evaluation) was January 15, 2023, and the 60th school day after November 16, 2022 (to recommend a program), was February 28, 2023. [107] Applying the above standard, I conclude that the failure to conduct a timely evaluation, as well as to develop an IEP and recommend a program by February 28, 2023, each constituted a denial of a FAPE. [108]
A FAPE and the IEP Program
In addition to when a FAPE was owed to the Student, the DPC raises the issue of whether the IEP offered the Student a FAPE, because it recommended 45 minutes of SLT twice per week, instead of 60 minutes twice per week, as the Parent requests.[109] Consistent with the Case No. [REDACTED]
Department’s burden, I must determine whether the 2x45/week recommended program in the IEP accurately reflected the results of the March 28, 2023, evaluation,[110] and whether the program provided for the utilization of sufficient special education services. [111]
In determining that the Student required SLT, the IEP team reviewed the Department’s March 28, 2023, speech-language evaluation.[112] The DOE SLP Evaluator found that, although the Student had average receptive and expressive language scores, he “demonstrat[ed] significant delays in his articulation skills and speech intelligibility.”[113] When attempting to speak with others, “his speech [wa]s very difficult to understand” and he would repeat himself “over and over again” because he would become “persistent in wanting to be understood.”[114] Because of this, he would “[t]ypically . . . not engage in conversations with friends” and “play[ed] with them in other ways.”[115] In fact, depending on the context, the Student’s speech intelligibility at age 3.75 was rated between 10% and 25%, while a Student between the ages of 3 and 4 years should have speech intelligibility between 75% and 100%.[116] The DOE SLP Evaluator did not make any specific recommendation of services, leaving “[e]ligibility for services [to] be discussed and determined at the IEP meeting.” [117]
Despite the findings in the DOE SLP evaluation, the IEP does not include what part or parts of it were relied upon in determining why 2x45/week became the ultimate recommendation of services. The Present Levels of Performance section describes the findings of the March 28, 2023, DOE SLT evaluation, a classroom observation, a social history observation, a behavioral assessment, and a development assessment; and the Management Needs section does not even mention his communication delays other than to note that resources should include Case No. [REDACTED]
“verbal/gestural/visual prompts and cues[.]”[118] The only mention of how the Student might benefit from a program of SLT is the Measurable Annual Goals section, where it states a the goals that “[g]iven fading support, [the Student] will produce age-appropriate phonemes . . . with 80% accuracy over 5 consecutive sessions[,]” with respect to: phonemes in isolation; in single words; in short phrases; in processing single words; and in processes two-word phrases. [119] Neither the IEP nor the DOE’s other exhibits, however, provide an explanation as to how 45 minutes twice per week was consistent with the DOE SLP Evaluator’s findings, or the Measurable Annual Goals. It was incumbent upon the Department to provide such a nexus, and the one witness it produced was not qualified to opine on the amount of SLT the Student required. On this record, therefore, I find that the DOE did not prove, by a preponderance of the evidence, that the IEP’s recommendations accurately reflected the findings in the DOE’s evaluation. This is a further basis to conclude the DOE failed to provide the Student with a FAPE. As for whether the IEP’s recommended program utilized sufficient special education services, I will address that in the next section of this decision.
Finally, I note that it is undisputed that the DOE never made a SLT provider available to the Student, and therefore it failed to implement the IEP.[120] This is yet another independent basis upon which I find that the DOE did not offer the Student a FAPE for the 2022-2023 and 2023-2024 school years.[121] I turn now to the remedy.
Compensatory Services
Having determined there was a lack of a FAPE, I must decide what level of service the Student is due, both for services due from when the DOE owed him a recommended program to the date the hearing concluded, as well as for services due to the Student for the remainder of the current 2023-2024 school year. Upon my review of the entirety of the record, I will exercise my equitable authority in imposing what I consider to be the appropriate amount of weekly services, and I will adopt the quantitative analysis in calculating the overall award for lost services. I will also address the rate being sought for SLT services and the Parent’s reimbursement claims. Case No. [REDACTED]
Appropriate Weekly SLT Services and Total Hours in the Award
When considering a compensatory award, I must be mindful that even though I have considerable “discretion to fashion a remedy [I] deem[] appropriate, [I] cannot unilaterally supply the facts necessary to reach such a decision[,]”[122] which is why the Parent should identify the specific remedy they are seeking. Unfortunately, the Parent’s attempt at proffering a remedy was of limited utility because her evidence is inconsistent. In the DPC, the Parent requested that I “order the District to fund two hours per week of speech-language therapy by an independent provider of the Parent’s choosing[.]”[123] Yet nothing in Parent’s case-in-chief supports this. Neither of Parent’s witnesses offered their opinion or conclusion as to what the correct weekly amount of services should be, let alone how their opinions or conclusions were consistent with the evaluations in evidence. In fact, the only evidence the Parent submitted that addressed the amount of services per week was in the recommendation of the Private SLP Provider, who stated, on December 9, 2022, that the Student should receive “1-2 sessions per week (depending on home practice and progress) for 30-45 minutes each” session. [124]
The evidence from both parties falls short of compelling. The Department did not sufficiently justify its recommendation of 90 minutes per week; and while the Parent requested 120 minutes per week, the Parent proffered only the Private SLP Provider’s opinion, which ranged from 30 to 90 minutes per week. Under circumstances like this, where the record does not fully meet the preponderance standard from any perspective (even assuming it applied to Parent in a compensatory award case), I must, consistent with my equitable authority and obligation to ensure than the award is consistent with the purposes of the IDEA, choose a remedy that I find fairest under the circumstances. Here, this is 90 minutes, as 2x45/week in a 1:1 setting is the only amount found in both parties’ evidence, and the IEP called for SLT to be provided in a 1:1 setting.[125] The record is devoid of any corroboration to justify more. Case No. [REDACTED]
The next question is the period over which such weekly services are owed. I have already determined that February 28, 2023, was the first date the DOE owed the Student a program. This will be the starting point of the bank of hours owed the Student. Applying a onefor-one quantitative approach, this translates to 16 weeks of services due the Student for the 2022-2023 school year (through June 27, 2023),[126] and six weeks of services due the Student for the 2023-2024 school year (from September 7, 2023, the first day of school, to October 23, 2023, the last day of the merits hearing).[127] The Student’s bank of hours, therefore, shall consist of 22 weeks at 1.5 hours (90 minutes), or 33 hours. Given that the DOE acknowledged the Student should receive the services as recommended in the IEP for the rest of the 2023-2024 school year, and since I am imposing the IEP’s program for the school years in question, I shall also award either direct funding (upon invoices), or Related Services Authorizations (RSA), at the Parent’s choosing for the same amount of SLT beginning October 24, 2023, through the end of the ten-month 2023-2024 school year.
Rate
Most of the evidence and arguments presented by the parties went towards whether the provider who administers SLT to the Student should be paid an enhanced rate or a rate closer to what the DOE pays as its standard rate or settlement rate.
The Department produced the DOE CSE Case Resolution Manager, who testified that “market rate” for SLT is between $100.00 per hour and $140.00 per hour, based upon her “hav[ing] worked alongside . . . speech and language pathologists who work . . . in private practice”; she also testified that she has personal friends who were SLPs.[128] She was aware that some providers seek $250.00 per hour from the DOE but she did not consider this market rate. [129]
The Private SLP Agency Director (Director), on the other hand, testified that $100.00 to $140.00 per hour “is much, much, much lower than what market rate is right now.”[130] She Case No. [REDACTED] explained that the Department will sometimes decide to offer less than market, just as much as certain highly qualified providers (such as professors) will charge as much as $700.00 per hour – but neither of these are the current market rate for the New York City metropolitan area.[131] She noted that rates of $140.00 per hour can be agreed upon between the Department and Parents (who are generally unaware of market conditions or market rate) during settlement talks,[132] or between the Department and a private provider under certain circumstances, such as when a student attends a public school that does not have a SLP and the DOE has exhausted its list of providers for which it issues RSAs.[133] The standard market rate for qualified, certified SLPs in New York City between 2015 and 2022 was $250.00 per hour, but since January of 2023, it has been $300.00 per hour.[134] The Agency determined this newer rate after assessing market conditions with other qualified SLP providers, and the Agency’s rate is consistent with what others in this community of providers are charging. [135]
As noted earlier in this decision, I do not credit the Case Manager’s opinion testimony, but I do credit the Director’s. While the Case Manager was familiar with rates achieved during settlement talks, she is not a SLP, and she acknowledged that two of the three sources of her knowledge came from non-DOE sources (SLP friends and the internet). The Director, on the other hand, is a certified SLP who runs one of the agencies that regularly bills for SLT services; is familiar with the costs of doing such business; and testified credibly as to what her peers in the New York City service provider community have charged since 2015. This testimony was more persuasive than that offered by the Department. I note as well that the SRO has upheld a rate of $300.00 per hour for SLT on appeal,[136] which is consistent with the Parent’s evidence. I therefore find $300.00 to be a reasonable maximum market rate.
Determining a maximum potential rate does not, however, end the inquiry. There are factors that should be considered when deciding the rate that should be imposed in a particular Case No. [REDACTED] case, including a provider’s explanation of its costs and overhead,[137] the qualifications of its instructors,[138] and whether the provider’s “services are specially designed to meet the student’s unique needs.[139] Here, the Parent has not announced which provider she would work with for the Student’s bank of hours and for services still due for the rest of the 2023-2024 school year. If she hired the Private SLP Agency, she would be getting one or more SLT therapists who have at least a master’s degree, and who are paid between 55% and 80% of the rate the Agency bills the DOE.[140] I note, though, that the Director did not state whether all the Agency’s SLT providers are New York State certified SLT providers, which I find would support imposing the maximum potential rate. The Director explained the Agency’s overhead, which includes “administrative costs, operational costs, education and training expenses, [and] supplies[,]” as well as “the time required to prepare for . . . sessions, ongoing analysis . . . for each session, . . . [and] collaborat[ion] with other team members on a regular basis[,]” such as “contacting the school providers” and any special education teachers working with the student. [141]
On the above evidence, I find that the Agency has established it has concrete overhead costs that justify consideration in its rate, and that it is likely to provide one or more appropriately qualified SLT providers for the Student. Moreover, the Student is in need of providers who are qualified and work in the collaborative model the Director described, in order to ensure that services are targeted to the Student’s significant issues with articulation and intelligibility. The Agency’s approach can and provide him a meaningful opportunity to elevate his 10% to 25% intelligibility towards 75% or higher. I therefore conclude, on this record, that the Agency, or any provider the Parent chooses that utilizes the same model under similar overhead, should be paid at a reasonable rate of no more than $300.00 per hour, so long as the individual providers who work with the Student can demonstrate they have current New York State licenses or certification in the provision of SLT services; and if they do not, the rate paid shall be no more than $250.00 per hour. Case No. [REDACTED]
Reimbursement for Evaluation and Services
Finally, the Parent seeks reimbursement for the evaluation and SLT services she obtained during the 2022-2023 school year from the Private SLP Provider. Despite the lack of clarity as to when the Parent provided consent to evaluate the Student it was clear that the DOE had 60 calendar days after the first ten school days,[142] or January 15, 2023, to evaluate the Student. The Parent did not wait for that period to end before getting the December 9, 2022 evaluation. I will not penalize the Department when it still had time; therefore, reimbursement for the Private SLP Provider’s evaluation is denied.
With respect to the private SLT paid for by the Parent, there were six sessions administered between March 7, 2023, and May 21, 2023. I have already held that the Department was responsible for developing and implementing a program of services for the Student by February 28, 2023. All six private SLT sessions were provided after that date; as the services were given during the period the DOE was obligated to offer SLT but did not, I find that the DOE was responsible for payment of those services, and thus it must reimburse the Parent. I also find that the Parent is due the entirety of the amount she paid. There is no evidence regarding the Private SLP Provider’s overhead, or how its methods addressed the Student’s specific challenges. Nevertheless, the Private SLP Provider’s documentation lists her as a certified SLP, and the $90.00 she charged per session (between 30 and 45 minutes each), translates to between $120.00 and $180.00 per hour, which is well below what I have credited is market rate, and also somewhat below and not too much above the $140.00 per hour the DOE argued should be considered market rate. In consideration of these factors, in light of the fact that the Parent, left to her own devices, still took care to find a provider who charged what she found to be an affordable rate, I find the Private SLP Provider’s rate reasonable under the circumstances, and I order that the Parent be reimbursed for the entire $540.00 she paid to the Private SLT Provider for six private sessions of SLT.
Remaining Contentions Case No. [REDACTED]
To the extent any further contentions have been made by the parties that are not addressed in this decision, I have found them to be unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any claims or relief not specifically discussed in this decision are dismissed with prejudice, or denied, respectively.
DECISION AND ORDER
Upon the foregoing, it is hereby, Ordered, that the New York City Department of Education shall fund, to the Private SLP Agency, or another provider of the Parent’s choice (so long as that provider offers services in the same or substantially similar manner as the Private SLP Agency’s services described in this decision), compensatory services in the form of a bank of up to 33 hours of Speech-Language Therapy, including services to be provided any time, including weekdays (or after school, at the Parent’s choice), weekends, holidays, or during school vacations or school breaks; at a reasonable rate not to exceed $250.00 per hour upon the submission of a reasonably acceptable invoice accompanied by an affidavit describing the provision of services and hours provided over a specific period in the invoice; provided that if the affidavit describes the administration of services to the Student by individual SLT providers who held current New York State certification or licensure in SLT at the time services were provided to the Student, and copies of such credentials are attached to the affidavit accompanying the invoice, the DOE shall pay the rate charged for such hours administered by such providers, up to $300.00 per hour; with all payments made to the Private SLP Agency or other provider chosen by the Parent within 35 days of the submission to the DOE of the invoice and accompanying affidavit, and payment will not be required for any hours of service from this bank provided after the one-year anniversary of the date of this order; and it is further, Ordered, that the New York City Department of Education shall directly provide a qualified SLT provider to the Student, pursuant to the May 4, 2023, IEP, for services beginning October 24, 2023, through the end of the ten-month 2023-2024 school year; and if the Department does not so implement the IEP, and the Parent has not identified a provider, the Department shall Case No. [REDACTED] issue a RSA for SLT services pursuant to the IEP, for the period of October 24, 2023, through the end of the ten-month 2023-2024 school year; and if the Parent has identified a provider (that offers services in the same or substantially similar manner as the Private SLP Agency’s services described in this decision), the Department shall either reimburse the Parent, upon proof of payment, for services provided in accordance with the IEP for the period of October 24, 2023, through the end of the 2023-2024 school year, or it shall directly fund such services for such period; the rate paid shall be a reasonable rate not to exceed $250.00 per hour upon the submission of a reasonably acceptable invoice accompanied by an affidavit describing the provision of services and hours provided over a specific period; provided that if the affidavit describes the administration of services to the Student by individual SLT providers who hold current New York State certification or licensure in SLT at the time services are provided to the Student, and copies of such credentials are attached to the affidavit accompanying the invoice, the DOE shall pay a reasonable rate charged for such hours administered by such providers, up to $300.00 per hour; with all payments to be made to the Private SLP Agency or other provider chosen by the Parent within 35 days of the submission to the DOE of the invoice and accompanying affidavit; and it is further, Ordered, that the New York City Department of Education shall, within 35 days, reimburse the Parent for private SLT services she paid during the 2022-2023 school year, in the amount of $540.00.
So Ordered.
Dated: December 17, 2023
Richard J. Zeitler, Jr. (signed electronically) Impartial Hearing Office Case No. [REDACTED]
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. Case No. [REDACTED]
DISTRICT EVIDENCE
1. IEP 05/04/2023 12 pages DOE
2. Parent Signed [REDACTED] Notice of Recommendation 05/05/2023 1 page DOE
3. NYCDOE Speech Language Evaluation 03/28/2023 3 pages DOE
4. Affidavit of [REDACTED] 10/18/2023 3 pages DOE
PARENT EVIDENCE
A. Impartial Hearing Request 08/14/2023 3 pages
B. IEP 05/04/2023 12 pages
D. C Parent Emails with District (Various) 6 Private Speech Evaluation 12/09/2022 4 pages
E. DOE Speech Evaluation 03/28/2023 3 pages
F. Speech Invoices (Various) 2 pages
H. G Rate Sheets (no date) 1 Due Process Response 08/18/2023 3 pages
I. Affidavit of [REDACTED] (no date) 3 pages
IHO EVIDENCE
I. Pre-Hearing Conference Summary and Order 10/10/2023 3 pages IHO
II. Order of Extension 10/31/2023 1 page IHO
Footnotes
[1] An observer from Parent’s firm joined on this day, without objection from the DOE.
[2] See 20 U.S.C. § 1415(f), and New York State Education Law §§ 4404(1) and 3602-c (2)(b)(1); see Ex. A.
[3] See Ex. A-2.
[4] See IHO Ex. I.
[5] See IHO Ex. II.
[6] See Exs. 1 to 4, and Exs. A to I.
[7] Both witnesses appeared for live testimony, but the Parent’s direct testimony was presented via affidavit. See Ex. I.
[8] See Ex. A-1.
[9] See id. at A-2.
[10] See id.
[11] Ex. B-2.
[12] See id.
[13] See id.
[14] See id.
[15] See id. at B-3.
[16] Id. at B-2.
[17] Id. at B-4 and B-8 to B-9.
[18] See Ex. 3.
[24] Id. ¶ 10.
[25] Id.
[26] Id. ¶ 12.
[27] See Tr. at pp. 72 to 73.
[28] See id. at pp. 76 to 77.
[29] See id. at pp. 78 to 79.
[30] See id. at pg. 85.
[31] Id. at pg. 87..
[32] See id. at pp. 91 to 92.
[33] See Ex. A.
[34] See Ex. B.
[35] See Ex. C.
[36] See Ex. D.
[37] See Ex. E.
[38] See Ex. F.
[39] See Ex. G.
[40] See Ex. H.
[41] See Ex. I.
[42] Tr. at pp. 103 to 104.
[43] Id. at pg. 122.
[44] See id.
[45] See id. at pp. 105 to 106.
[46] See id. at pg. 108.
[47] Id. at pg. 109.
[48] See id. at pp. 109 to 110, and pp. 129 to 130.
[49] See id. at pg. 113.
[50] See id. at pp. 115 to 116.
[51] See id. at pp. 117 to 118.
[52] Id. at pp. 119 to 120.
[53] See id. at pp. 120 to 121.
[54] See id. at pg. 128.
[55] Ex. I ¶ 3; see also Tr. at pp. 141 to 142.
[56] Id. at pg. 135.
[57] Id. at pg. 138.
[58] Id. at pg. 138 to 139.
[59] Id. at pg. 136.
[60] See id. at pp. 136 to 137.
[61] Id. at pg. 138 to 139.
[62] See Tr. at pg. 154.
[63] See id. at pp. 154 to 155.
[64] See id. at pg. 137; see also Ex. F.
[65] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[66] See 34 C.F.R. § 300.13.
[67] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[68] See generally, 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2).
[69] See 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008), establishing annual goals related to needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR § 200.4[d][2][iii]).
[70] See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[71] Cerra v. Pawling Cent. Schl. Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130.
[72] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.
[73] See 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[74] See Education Law §§ 4404(1).
[75] See Doe v. East Lyme, 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[76] Doe v. East Lyme Bd. of Educ., 790 F.3d at 454.
[77] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[78] See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
[79] P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008).
[80] Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").
[81] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 (2d Cir. 2014); see also Newington, 546 F.3d at 123.
[82] See M.C. v. Cent. Reg’l Sch Dist., 81 F.3d 389 (3d Cir. 1996).
[83] See Reid, 401 F.3d at 518; see also Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007).
[84] Id.
[85] Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524.
[86] Application of a Child with a Disability, Appeal No. 22-004 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005).
[87] See JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (E.D. Pa. 2021) (“[w]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”); and Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 (D.D.C. 2017) (hearing officers “must solicit the evidence necessary to determine the student’s specific educational deficits resulting from [the] loss of FAPE and the specific compensatory measures needed to best correct those deficits” (internal quotes and citation omitted)).
[88] M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8, supra.
[89] C.W. v. Rose Tree Media Sch. Dist., 395 Fed. App’x 824, 838 (3d Cir. 2010).
[90] Somberg v. Utica Community Schs., 2017 WL 242840, at *4 (E.D. Mich. 2017).
[91] See Ex. 1-8.
[93] See id.
[94] Tr. at pg. 135.
[95] Id.
[96] Id. at pg. 138.
[97] See Ex. 3.
[98] See 8 NYCRR § 200.4(a).
[99] Id.
[100] See id. at § 200.4(a)(6) and 200.5(a)(5).
[101] See id. at § 200.4(a)(2)(iv)(a); see also 34 CFR § 300.300(a).
[102] Id. at § 200.4(b).
[103] Id. at §200.4(e)(1) (emphasis added).
[104] Application of a Student with a Disability, Appeal No. 22-165 (Mar. 1, 2023).
[105] 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 Dec. 10, 2023).
[106] See id.
[107] See id.
[108] Application of a Student with a Disability, Appeal No. 22-165 (Mar. 1, 2023).
[109] Compare Ex. 1-8 to Ex. A-3.
[110] See 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i), and Tarlowe v. Dep't of Educ., supra., at 6.
[111] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v); see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; and Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[112] See Ex. 1-2, and Ex. 3.
[113] Ex. 3-3.
[114] Id. at 3-1 (internal quotations omitted).
[115] Id.
[116] See id. at 3-1 to 3-2.
[117] Id. at 3-3.
[118] See Ex. 1-1 to 1-5.
[119] See id. at 1-6.
[120] See Ex 4 ¶ 9; see also Ex. I ¶¶ 10 to 12
[121] See 8 NYCRR § 200.4(e)(7); and Application of a Child with a Disability, Appeal No. 08-087.
[122] JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (E.D. Pa. 2021).
[123] Ex. A-3 (emphasis added).
[124] Ex. D-4.
[125] See Ex. 1-8.
[126] 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 Dec. 10, 2023). I note that I am defining “week” as one in which there are three school day, which would give sufficient time for the Student to receive both 45-minute sessions.
[127] See NYC DOE 2022-2023 School Year Calendar, found at <https://www.schools.nyc.gov/about-us/news/2023- 2024-school-year-calendar> (last visited Dec. 10, 2023).
[128] Tr. at pp. 76 to 78.
[129] See id.
[130] Tr. at pg. 109.
[131] See id. at pp. 109 to 110.
[132] See id. at pp. 117 to 118.
[133] See id. at pp. 115 to 116.
[134] See id. at pp. 105 to 106.
[135] See id. at pp. 105 to 106, and pg. 108.
[136] See Application of a Student with a Disability, Appeal No. 23-080 (June 9, 2023). The provider in that case was the same Private SLP Agency before me here.
[137] See Application of a Student with a Disability, Appeal No. 20-140.
[138] See id. (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”).
[139] See Application of a Student with a Disability, Appeal No. 23-166, at pg. 9 (Oct. 3, 2023).
[140] See Tr. at pp. 120 to 121, and pg. 128.
[141] Id. at pp. 103 to 104.
[142] See 8 NYCRR § 200.4(b).