NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
NYSED # 608006 NYC# 255160
FINDINGS OF FACT AND DECISION
Case Number: 255160
Student’s Name: REDACTED
Date of Birth: REDACTED
District: REDACTED
Hearing Requested By: Parent
Date of Hearing: October 27, 2023; November 14, 2023
Actual Record Closed Date: November 16, 2023
Hearing Officer: Judith Schneider, Esq.
An Impartial Hearing for the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”) was conducted by me remotely via teleconference
Procedural History
The proceeding was initiated at the request of the parent by correspondence dated September 5, 2023. (Ex. A) I was appointed Impartial Hearing Officer on September 8, 2023. A prehearing conference was conducted on October 16, 2023. By Pendency Implementation Form dated October 27, 2023, the district agreed to the parent’s pendency claim (Speech-Language Therapy2x30 minutes/week, no rate specified.)
The initial compliance date in this matter was November 19, 2023. No requests for extension were made. Accordingly, the current compliance date is November 19, 2023. The record closed on November 16, 2023, upon my receipt of the final transcript. (expedited).[1]
Cases Presented
The district appeared for the hearing to address the parent’s pendency claim but did not thereafter appear. The district presented no evidence. The parent submitted documents for admission into evidence and the testimony of the parent. (A list of documents in the record is appended)
Findings and Conclusions
In the Due Process Complaint, the parent asserted that the student was entitled to receive speech-language services pursuant to “IEP”, that the district had not provided them and that the parent had been unable to secure a provider at the district’s RSA rate. The parent sought an “enhanced rate.” No rate was specified.
A hearing to address the parent’s pendency order request, made during the prehearing conference, was conducted on October 27, 2023. The district appeared and stated that the district agreed to provide during the pendency of this matter Speech language Therapy (“SL”)2x30 minutes per week based upon the December 2, 2021 IESP as asserted by the parent. (Ex. A; T15) No rate was specified on the agreement and the rate was not discussed at the October 27, 2022 hearing.
The district did not appear at the November 14, 2023 merits hearing in this matter and has submitted no documents. (T27-28, 32) The documents submitted by the parent, which were provided to the district, did not specify a rate for the requested services. The district had not been informed that the parent was seeking payment at a rate of $225 per hour. (T32) The parent testified that provider services at the rate of $225 per hour after unsuccessful efforts to find a provider at the district’s “RSA rate.” The parent did not detail parental efforts to find a provider and did not provide testimony to support a conclusion that the rate requested here is a fair market rate. (T38) Although that claim was made in the opening statement, evidence with regard to that issue was not submitted although there was an opportunity to do so. (T32.39)
With regard to this matter in which the student has not been unilaterally placed, the DOE has the burden of proof with regard to all matters. SRO 11-053. N.Y. Education Law §4404[1][c]. Further, I note that under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006); Appeal No. 08-052.
I conclude that the district has conceded the student’s entitlement to two 30 minute SL sessions per week in a 2023-2024 school year 10 month program.[2] Further, I conclude that direct district payment, requested by the parent, if warranted in the circumstances here.
However, the parent has not established entitlement to the specific rate of $225 per hour and there is no basis for a conclusion that the district had knowledge of the requested rate and/or conceded it. Accordingly, payment at a “fair market rate” is ordered.
ORDER
The student is entitled for the 2023-2024 SY (10 month program) to direct district payment for two (2) 30 minute Speech Language Therapy sessions per week from an appropriately qualified provider at a fair market rate for those services. The district may require evidence of delivery of the services and of provider qualifications.
Dated: November 25, 2023
_________/s/_____________
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.
EXHIBITS
District
NONE
Parent
| Exhibit | Date | Document | Pages |
|---|---|---|---|
| A | 12/2/2021 | IESP | 9 pgs. |
| B | 9/01/2023 | Therapist Hire Agreement | 1 pg. |
| C | 9/05/23 | Advocate Consent Form | 1 pg. |
| D | 9/5/2023 | DPC | 2 pgs. |
| E | 9/5/2023 | NOA | 1 pg. |
| F | 9/7/2023 | Parent Affidavit | 1 pg. |
| G | 9/7/2023 | Therapist License | 1 pg. |
Impartial Hearing Officer
NONE
Footnotes
[1] Issuance of the decision subsequent the compliance date is regretted but due to circumstances beyond my control.
[2] The parent testified that the December 2, 2021 was the last IESP and that a review has been scheduled. (T38)