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FINDINGS OF FACT AND DECISION
Case Number: 255388
Student’s Name: REDACTED
District of Private
School Location: REDACTED
Impartial Hearing Officer: Hannah Schwager, Esq.
Date of Filing: September 6, 2023
Hearing Requested by: Parent
Dates of Hearing: November 16, 2023
Record Close Date: November 22, 2023
Date of Decision: November 22, 2023
Names and Titles of Persons Who Appeared November 16, 2023
For the Student:
Parent Representative
For the Parents:
Program Coordinator, Provider Agency
For the Department of Education:
Attorney Interne Department of Education
BACKGROUND
The Parent, through representative, filed a Due Process Complaint (DPC) on September 6, 2023, pursuant to the Individuals with Disabilities Education Act (IDEA) 1 and Section 4404(1) of the New York State Education Law. Parent alleges that the New York City Department of Education (DOE or District) failed to offer the Student a free and appropriate public education (FAPE) for the 2023-2024 school year. Specifically, Parent claims that the DOE failed to implement the services recommended in the Student’s Individualized Education Services Program (IESP), which had an implementation date of December 19, 2022.
Parent is seeking an order directing the DOE to directly fund the following services, provided to the Student by the Provider Agency, at an enhanced rate:
• Special Education Teacher Support Services (SETSS): three (3) 60-minute sessions per week, delivered in Yiddish
• Speech-Language Therapy (SLT): administered individually, one (1) 30-minute session per week, delivered in Yiddish
• SLT: administered in a group, one (1) 30-minute session per week, delivered in Yiddish
As more fully discussed below, I find that the DOE failed to provide the Student a FAPE for the 2023-2024 school year and that the relief Parent seeks is appropriate.
PROCEDURAL HISTORY
I was appointed as the impartial hearing officer (IHO) on September 8, 2023. On October 11, 2023, both parties appeared virtually for a pre-hearing conference, after which a Pre-Hearing Conference Summary and Order was provided to the parties. Following the conference, I denied consolidation of this case with a previously filed case for this Student. A status conference was held on November [1], 2023, and the impartial hearing was held virtually on November 16, 2023.
The DOE did not provide any exhibits at hearing, nor did the DOE present any witness testimony. The Parent offered eight proposed exhibits into the record. DOE objected to the admission of the Parent’s proposed Exhibit I, as it had not been part of the Parent’s disclosure five days prior to the hearing date.[2] I sustained the objection, and the exhibit was excluded from the record.[3] The DOE also objected to Parent’s proposed Exhibit C being entered into the record, arguing that the pendency agreement was not relevant to this proceeding. I overruled that objection and entered the exhibit as IHO Exhibit I, as the copy Parent provided in disclosure was incorrect. [4] Parent’s exhibits included a brief affidavit from the Parent, and an affidavit from the Program Coordinator at the Provider Agency. 5 DOE cross-examined both affiants. Both parties delivered opening and closing statements. Although only portions of the evidence are referenced in this decision, all the testimony and documents were reviewed in full.
FINDINGS OF FACT
At the hearing, the following was not in dispute: The Student and Parent reside in New York City and the Student attends Private School during the 2023-2024 school year. The Private School is located within the geographic boundaries of the DOE. The Student has been classified by the Committee on Special Education (CSE) as a Student with a Speech or Language impairment.[6] At a meeting on December [5], 2022, the CSE developed an IESP that recommended the following services to be implemented on December 19, 2022 7:
• SETSS, three periods per week, administered in Yiddish
• Individual SLT, one thirty-minute session per week, administered in Yiddish
• Group SLT, one thirty-minute session per week, administered in Yiddish
There is no dispute as to the appropriateness of this IESP. Furthermore, there is no dispute that the implementation date of this IESP is December 2022, and the recommendations would extend to December 2023, when the annual review is projected to be scheduled.[8] Finally, DOE did not dispute that the recommended services were not implemented before the start of the 2023-2024 school year. [9]
LEGAL FRAMEWORK AND ANALYSIS
I. Burden
Except for in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing. [10]
II. FAPE
The IDEA provides that children with disabilities are entitled to a FAPE.[11] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (IEP). [12] Under State law, parents who have privately enrolled their child in a nonpublic school may seek
P. Ex. B-15 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.[13] In response, the district 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]."[14] 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.”[15] Further, the location district is responsible for implementing the IESP services. [16]
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.”[17] 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.”[18] Additionally, §3602-c of the New York Education Law 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.
A district cannot be absolved of its statutory obligation to implement services for the student simply by being inactive in implementing the mandated services. The DOE had the obligation to provide services to the Student in conformity with the IESP.[19] In failing to do so, the DOE failed to provide the Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district. In the instant matter, it is undisputed that the student is entitled to services pursuant to the December 2022 IESP. The DOE concedes that the services were not implemented, and therefore, it is undisputed that the DOE failed to implement the services set forth in the IESP for the 2023-2024 school year, and thereby denied the Student a FAPE.
III. Relief
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.[20] 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.”[21] Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so.[22] Although an award of damages is not available under the IDEA[23] “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” [24]
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE.[25] Such an award may include payment for out-of-pocket educational expenses incurred by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate remedy.[26] Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers.[27] However, the analysis for these so called “equitable service rate” cases have been treated in New York as a hybrid between unilateral placement theory cases,[28] and pure compensatory education cases. [29] Thus, in a case such as this, where the central issue is whether a third-party special education provider selected by a parent should be remunerated with an enhanced rate over what the Department normally pays, the Parent’s evidence must be reviewed, consistent with my obligation and equitable authority to ensure that the remedy “be appropriate in light of the purpose of the Act.” [30]
Appropriateness of Services
The DOE did not argue that the SETSS provided to the Student by the Provider Agency were inappropriate. I find that the Parent has provided credible testimony and evidence showing that the SETSS provided to the Student by the Provider Agency meet the educational needs of the Student.
The DOE argues that “there is no evidence or testimony provided as to the qualifications of [the Speech-Language Therapist]. This calls into question the adequacy of the speech therapy services provided to [the Student]. Services provided by a provider that is not certified or licensed […] should not be paid for by DOE.” [31]
Although the record does not include qualifications or certifications of the Speech-Language Therapist, I do not find that the record lacks evidence of such certification. DOE cross-examined the Program Coordinator, who testified that she did not know the Speech-Language Therapist’s specific qualifications off-hand.[32] However, the Program Coordinator did testify credibly that the Speech-Language Therapist is certified by New York State [33], and stated that she knew “that these providers have the appropriate licenses. I’m confident in that.”[34] The DOE did not present any evidence or testimony to rebut that of the Program Coordinator. Therefore, although the record does not contain the certification of the Speech-Language Therapist, I credit the testimony of the Program Coordinator in finding that the provider is properly qualified to administer SLT to the Student.
Reasonableness of Rate
In its summation, the DOE argued that $195.00 per hour for SETSS and $250.00 per hour for SLT “are much higher than the DOE standard rate of $125 per hour,” and are therefore unreasonable.[35] The DOE did not submit any additional evidence in support of this argument.
I find that the Program Coordinator testified credibly about why the rates charged for service are appropriate.[36] The rates charged are necessary to cover all the Agency’s operating costs, including paying providers, who are “hired as employees of the Agency and not as independent contractors.”[37] Further, the rate charged is applied towards “paying for materials and supplies for our teacher, paying our rent, and paying support staff,” as well as a proprietary software used by the Provider Agency employees.[38] The Program Coordinator also testified that some of the rate charged goes towards professional development.[39] Moreover, the DOE did not offer any witnesses or testimony to support its argument that the rates charged by the Provider Agency for both the SETSS and the SLT were unreasonable or not reflective of the market rate for such services. Therefore, I find $195.00 per hour for SETSS and $250.00 per hour for SLT to be a reasonable rate to charge for such services.
In sum, I find that the Program Coordinator testified credibly about the basis for the rates charged by the Provider Agency and that there is no basis for a finding that the rates charged by Provider Agency are excessive.
Equities
The Parent submitted into evidence a letter dated August 30, 2023, in which the Parent notified the DOE that the Parent would be privately seeking services for the Student for the 2023-2024 school year.[40] The Parent also submitted notification dated May 22, 2023, alerting the District that the Parent was seeking special education services for the Student for the 2023-2024 school year.[41] I find that the Parent properly notified the DOE that they would be seeking private services for the Student.
DOE argues that, as the record does not include an enrollment contract between the Provider Agency and the Parent, and because the Parent did not provide evidence showing that she would be obligated to pay for the services should she not prevail at hearing, the DOE should not be obligated to fund the services.[42] I do not credit this argument. First, the Parent testified that she engaged with the Provider Agency to provide the Student SETSS and SLT.[43] Parent also testified that she would be unable to pay the Provider Agency for services if she were not to prevail at hearing.[44] Moreover, Parent also testified that, to her knowledge, the Provider Agency was “expecting to get paid,” for the services rendered to the Student for the school year.[45] The DOE did not present any evidence or testimony to rebut Parent’s testimony. I find that the record shows that the Parent has an agreement with the Provider Agency, and that should she not prevail at hearing, the Provider Agency would still require payment for services rendered to the Student. Therefore, I do not credit the DOE’s argument that the lack of an enrollment contract forecloses the DOE’s obligation to pay for the services.
Group v. Individual Therapy
As relief, the Parent is seeking direct funding for both individual and group speech-language therapy.[46] However, the Program Coordinator testified that she doesn’t “think [the Provider Agency] provides group services[.]” Although neither party addressed this at hearing, I feel it important to note as part of my decision, as it informs the type of relief I will be ordering.
A review of the Student’s IESP shows that, although there is a recommendation for group speech-language therapy, the IESP does not detail why the group therapy is warranted over the individualized. Nor does the IESP contain annual goals or concerns related to the Student’s social interactions with peers, such that a provider would have to consider having the Student in a group setting to work on such social goals. Moreover, Parent “may be afforded some leeway in locating services for the student, since identifying an appropriate group setting for the student to receive [unilaterally provided services] in the private school may not have been possible and the district could have avoided this problem by implementing the recommendation for direct group [services].”[47] The record shows that the Provider Agency may not be equipped to administer group SLT. However, based upon the foregoing discussion, I find that an order directing funding for two individual SLT sessions per week is appropriate in this case.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
1) The DOE failed to provide the Student with a FAPE for the 2023-2024 school year.
2) The New York City Department of Education shall directly fund and/or reimburse the Provider Agency for the administration of three (3) periods per week of SETSS, at a rate not to exceed $195.00 per hour, for the entirety of the 2023-2024 school year, less any amount paid under pendency in this matter.
a. Such payment shall be made within thirty (30) days of a submission to the DOE of an affidavit from the Provider stating the dates of services and total hours that have been, and are to be, provided pursuant to this Order.
b. The SETSS services shall be provided in Yiddish.
3) The New York City Department of Education shall directly fund and/or reimburse the Provider Agency for the administration of two (2) thirty-minute sessions per week of individual speech-language therapy, at a rate not to exceed $250.00 per hour, for the entirety of the 2023-2024 school year, less any amount paid under pendency in this matter.
a. Such payment shall be made within thirty (30) days of a submission to the DOE of an affidavit from the Provider stating the dates of services and total hours that have been, and are to be, provided pursuant to this Order.
b. The speech-language therapy shall be provided in Yiddish.
Dated: November 22, 2023
Hannah Schwager, Esq.
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
DISTRICT EVIDENCE
None
PARENT EVIDENCE
A. Request for Impartial Hearing 9/6/2023 4 pages
B. Individualized Education Services Program (IESP) 12/5/2022 15 pages
D. 10 Day Notice 8/30/2023 1 page
E. June 1st Reach Out 5/22/2023 1 page
F. Parent Outreach Affidavit 11/9/2023 1 page
G. Affidavit of Agency Witness 11/9/2023 2 pages
H. Teacher Certification of SETSS Provider Undated 1 page
IHO EVIDENCE
I. Pendency Order 10/19/2023 4 pages IHO
Footnotes
[1] 20 U.S.C. §1415(f).
[2] Transcript (Tr.) 24
[3] Tr. 25
[4] Tr. 26. The Parent representative had mistakenly disclosed a copy of the pre-hearing conference summary and order for this matter, instead of a copy of the pendency order. I found that, as the pendency order was already a part of the case record, it would not prejudice the DOE to have the document admitted as an IHO exhibit. See Appendix A for a full list of all exhibits entered into the record at hearing.
[5] Parent Exhibits (P. Ex.) F and G, respectively.
[6] P. Ex. B-1
[8] P. Ex. B-1
[9] Tr. 70
[10] Educ. Law § 4404(1)(c); see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014).
[11] 20 U.S.C. § 1400 (d)(1)(A)
[12] 20 U.S.C. § 1401(9)
[13] Educ. Law § 3602-c (2)
[14] Educ. Law§ 3602-c (2) (b) (l)
[15] Educ. Law § 3602-c (2)(b)(1)
[16] Educ. Law § 3602-c (2)(a)
[17] Educ. Law § 3602-c(2)(a)
[18] Educ. Law § 3602-c(2)(b)(1)
[19] Educ. Law§ 3602-c(2)(a), (b)(l)
[20] 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).
[21] Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015)) (citation omitted).
[22] Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993).
[23] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002).
[24] Doe v. East Lyme, 790 F.3d at 454.
[25] See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
[26] Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-79 (7th Cir. 2015) (citing cases).
[27] Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 (D. Minn. 2022), citing Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2019).
[28] See, e.g., Application of a Student with a Disability, Appeal No. 20-115.
[29] 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-out-pocket educational expenses); see also P.V. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (compensatory education is an appropriate remedy for a denial of FAPE).
[30] East Lyme Bd. of Educ., 790 F.3d at 454 (citation omitted).
[31] Tr. 69
[32] Tr. 61
[33] P. Ex. G ¶14
[34] Tr. 59
[35] Tr. 69
[36] P. Ex. G ¶¶ 8, 9 & 10
[37] P. Ex. G ¶8
[38] P. Ex. G ¶8
[39] P. Ex. G ¶10
[40] P. Ex. D
[41] P. Ex. E
[42] Tr. 69
[43] P. Ex. F ¶5
[44] Tr. 40
[45] Tr. 40-41
[46] P. Ex. A-4
[47] Id.