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CASE NUMBER: 606548 - NYC: 253771
FINDINGS OF FACT AND DECISION
| Field | Value |
|---|---|
| Case Number | 253771 |
| Student's Name | REDACTED |
| Home District | REDACTED |
| Service District | REDACTED |
| Impartial Hearing Officer | Ginger James |
| Date of Filing | September 1, 2023 |
| Hearing Requested by | Parent |
| Date of Hearing | November 13, 2023 |
| Record Close Date | November 30, 2023 |
| Date of Decision | December 4, 2023 |
| Time Sensitive | No |
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 13, 2023
For the Student:
REDACTED, Esq., Parent's Attorney
For the New York City Department of Education:
REDACTED, District Representative
BACKGROUND AND POSITIONS OF THE PARTIES
Parent,[1] through counsel, filed a Due Process Complaint ("DPC") on September 1, 2023 (Ex. A).
In the DPC, Parent alleges, among other things, that the Department of Education ("DOE" or "District") failed to provide Student a free appropriate public education ("FAPE") on an equitable basis for the 10-month, 2023-2024 school year by not providing Student with Special Education Teacher Support Services ("SETSS") and Occupational Therapy ("OT") that the Committee on Special Education ("CSE") had recommended pursuant to Student's Individualized Education Services Program ("IESP") dated March 30, 2020 ("the March 2020 IESP") (Ex. A; Ex. B).
As relief, Parent seeks an Order finding that the DOE failed to provide Student special education and related services on an equitable basis for the 10-month, 2023-2024 school year and directing that the DOE fund: SETSS services, to be provided in a group, five periods per week and individual OT to be provided two times per week for 30 minutes (Ex. A; Ex. B-6). Parent also requested pendency.
PROCEDURAL HISTORY
On September 5, 2023, I was appointed Impartial Hearing Officer ("IHO") for this case.
On September 11, 2023, I issued an Order directing Parent's Attorney and representatives from the District to appear on October 2, 2023 for a Settlement Conference, to appear on October 10, 2023 for a Status Conference, and to appear on October 17, 2023 and October 19, 2023 for a Due Process Hearing ("DPH") (IHO Ex. I).[2] My Order also included rules regarding how the DPH would be conducted (IHO Ex. I).
On October 2, 2023, Parent's Attorney met with a New York City Office of Administrative Trials and Hearings ("OATH") IHO for a Settlement Conference.[3] No one from the District appeared.
On October 10, 2023, Parent's Attorney and District Representative ("the Parties") appeared before me for a Status Conference.
On October 10, 2023, I issued an Order that memorialized what transpired at the Status Conference and included updated information regarding how the DPH would be conducted (IHO Ex. II). Pursuant to Parent's Attorney's request, I rescheduled the October hearing dates for November 13, 2023 and November 15, 2023 (IHO Ex. II).
On November 13, 2023, the Parties appeared before me for the DPH. At the outset, I conducted a Pendency Hearing (Tr. 4-6).[4] At the DPH, District Representative did not proffer any exhibits (Tr. 6). Parent's Attorney proffered Exhibits A through G, which included an affidavit by Case Manager at Provider Agency (Tr. 6-7). District Representative had no objection to any of the exhibits, and I admitted all into evidence (Tr. 7). The Parties agreed that the operative IESP for this matter was developed on March 30, 2020 (Ex. B), and that the services described therein reflect the equitable services to which Student is entitled for the 2023-2024 school year (Tr. 7-8). The Parties further agreed that the DOE did not implement the recommendations contained in the operative IESP (Tr. 8). Additionally, the Parties agreed that the DOE will directly fund the services set forth in the operative IESP by funding a certified or licensed provider of Parent's choosing at a "reasonable market rate" not to exceed the rate previously paid to the same provider by the DOE's own Implementation Unit within the last six months upon presentation of a valid contract between Parent and provider and an affidavit attesting that the services billed for were provided (Tr. 8-9).
On November 15, 2023, by email, I granted the Parties' request to extend the compliance date (IHO Ex. III)
On November 15, 2023, I issued an Order on Pendency (IHO Ex. IV).
Funding for a 10-Month School Year
I find that Student is entitled to funding of SETSS and OT during a 10-month school year as recommended by the March 2020 IESP (Ex. B-6). I further find that a 10-month school year comprises 36 weeks, a reflection of the 180 instructional days divided by five days per week.[5]
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 10-month, 36-week 2023-2024 school year, group Special Education Teacher Support Services ("SETSS"), five periods per week to be administered by a licensed special education teacher of Parent's choosing, at a "reasonable market rate" not to exceed the rate previously paid to the same provider by the DOE's own Implementation Unit within the last six months; and it is further
ORDERED THAT the DOE shall pay the provider listed above within 35 days of receipt of upon presentation of a valid contract between Parent and provider and an affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT the DOE shall fund for the 10-month, 36-week 2023-2024 school year individual Occupational Therapy ("OT"), two times per week for 30 minutes, to be administered by a licensed occupational therapist of Parent's choosing, at a "reasonable market rate" not to exceed the rate previously paid to the same provider by the DOE's own Implementation Unit within the last six months; and it is further
ORDERED THAT the DOE shall pay the provider listed above within 35 days of receipt of upon presentation of a valid contract between Parent and provider and an 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.
December 4, 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 Attorney |
| REDACTED | District Representative |
| REDACTED | Home District |
| REDACTED | Service District |
| REDACTED | Case Manager at Provider Agency |
| REDACTED | Provider Agency |
APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
| Exhibit | Title of Document | Date | Number of Pages |
|---|---|---|---|
| A | Impartial Hearing Request | 08/31/2023 | 5 |
| B | Individualized Education Services Program | 03/30/2020 | 9 |
| C | Affidavit of REDACTED | 10/26/2023 | 1 |
| D | Parent Agreement | 09/01/2023 | 1 |
| E | Progress Report | 04/18/2023 | 2 |
| F | Providers' Certifications | Various | 3 |
| G | Notice of Intent | 05/08/2023 | 1 |
DOE EXHIBITS
NONE
IHO EXHIBITS
| Exhibit | Title of Document | Date | Number of Pages |
|---|---|---|---|
| I | Order Regarding Scheduling of Appearances and Expectations for the Hearing (Redacted) | 09/11/2023 | 6 |
| II | Memorialization of Status Conference and Order Regarding Rescheduling of Appearances and Expectations for the Hearing (Redacted) | 10/10/2023 | 4 |
| III | Emails Regarding Extension (Redacted) | 11/13/2023, 11/14/2023 and 11/15/2023 | 5 |
| IV | Order on Pendency | 11/15/2023 | 2 |
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] Pursuant to Parent's Attorney's request, I changed the October 17, 2023 appearance to October 20, 2023 (IHO Ex. I).
[3] 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.
[4] References to the transcript from the Due Process Hearing conducted on November 13, 2023 are denoted "Tr."
[5] See https://www.schools.nyc.gov/about-us/news/2023-2024-school-year-calendar (last visited December 4, 2023). See also generally Application of a Child with a Disability, Appeal No. 23-033, FN 10.