New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 608295 – NYC: 255446

FINDINGS OF FACT AND DECISION

Case Number: 255446

Student’s Name: REDACTED

Home District: REDACTED

Service District: REDACTED

Impartial Hearing Officer: Ginger James

Date of Filing: September 6, 2023

Hearing Requested by: Parent

Date of Hearing: November 2, 2023

Record Close Date: December 15, 2023

Date of Decision: December 20, 2023

Time Sensitive: No

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 2, 2023

REDACTED, Esq., Parent’s Attorney — Student

REDACTED, District Representative — DOE

BACKGROUND AND POSITIONS OF THE PARTIES

Parent,^[1] through counsel, filed a Due Process Complaint (“DPC”) on September 6, 2023 (Ex. A).

In the DPC, Parent alleges 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 failing to offer Student an appropriate program (Ex. A). Parent alleges that on February 17, 2022, the Committee on Special Education (“CSE”) drafted an Individualized Education Services Program (“IESP”) recommending that Student receive Speech-Language Therapy (“SLT”), and Counseling (“CO”) (“the February 2022 IESP”) (Ex. A; Ex. D). Parent alleges that the IESP is inadequate because the CSE failed to recommend Special Education Teacher Support Services (“SETSS”), which it had recommended pursuant to a prior IESP and that it removed those services without re-evaluating Student (Ex. A-3).^[2] Additionally, Parent asserts that the District failed to provide Student a FAPE on an equitable basis by not providing Student with any of the services it had recommended pursuant to the February 2022 IESP (Ex. A-4; Ex. D).

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, to be provided in a group, five hours per week;^[3] individual SLT to be provided two times per week for 30 minutes; group SLT to be provided one time per week for 30 minutes; individual CO to be provided two times per week for 30 minutes; and group CO to be provided one time per week for 30 minutes (Ex. A-5; Ex. C-9; Ex. D-9). Parent also requested pendency.

PROCEDURAL HISTORY

On September 11, 2023, I was appointed Impartial Hearing Officer (“IHO”) for this case.

On September 19, 2023, the District filed a Due Process Response (Ex. B).

On September 28, 2023, I issued an Order directing Parent’s Attorney and the District to appear on October 11, 2023 for a Settlement Conference, to appear on October 25, 2023 for a Status Conference, and to appear on November 2, 2023 for a Due Process Hearing (“DPH”) (IHO Ex. I). My Order also included rules regarding how the DPH would be conducted (IHO Ex. I).

On October 11, 2023, Parent’s Attorney and a representative from the District met with an Office of Administrative Trials and Hearings (“OATH”) IHO for a Settlement Conference. ^[4]

On October 25, 2023, Parent’s Attorney and a representative from the District appeared before me for a Status Conference. ^[5]

On October 25, 2023, I issued an Order which served to memorialize what transpired at the October 25, 2023 Status Conference and which included updated information regarding how the DPH would be conducted (IHO Ex. II).

On November 2, 2023, Parent’s Attorney and District Representative (“the Parties”) appeared before me for the DPH. At the outset, I conducted a Pendency Hearing (Tr. 5-7).^[6] At the DPH, District Representative did not proffer any exhibits or witness testimony (Tr. 7-8). Parent’s Attorney proffered Exhibits A through J, which included affidavits by Parent (Ex. F) and Supervisor at Provider Agency (“Supervisor”) (Ex. G) (Tr. 8-10). District Representative had no objection to any of the exhibits, and I admitted all into evidence (Tr. 10). Neither Party presented an opening statement (Tr. 10).^[7] Parent’s Attorney explained that although Parent agrees with the related services recommendations listed on the February 2022 IESP, Parent disagrees with the removal of SETSS (Tr. 11). Accordingly, Parent seeks funding for the related services recommended on the February 2022 IESP and for five hours of SETSS that the CSE had recommended pursuant to an IESP drafted on March 24, 2021 IESP (“the March 2021 IESP”) (Tr. 11). The District maintained that the February 2022 IESP is the operative IESP for Student for the 2023-2024 school year (Tr. 12). Regarding the provision of services, District Representative did not know if the District had provided any services to Student (Tr. 12) whereas Parent’s Attorney believed that the District had been providing CO (Tr. 12). Parent seeks an Order directing the District to continue providing CO, and if they do not do so, Parent seeks funding for CO through Related Services Authorizations (“RSAs”) or at a “reasonable market rate” (Tr. 13). District Representative presented a closing statement (Tr. 14) followed by Parent’s Attorney (Tr. 14-18). I reserved decision on the Parties’ request to extend the compliance date (Tr. 18-20).

On November 13, 2023, I issued an Order on Pendency (IHO Ex. III).

On November 21, 2023, I granted the Parties’ request to extend the compliance date.

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 both witnesses credible. Overview Student and Parent reside in New York City and Student is attending Private School for the 2023-2024 school year (Ex. A; Ex. J). Private School is located within the geographic boundaries of the DOE (Ex. A).

The March 2021 IESP

On March 24, 2021, the CSE convened to develop an IESP for Student (Ex. F-1; Ex. C-1, 11). Parent and Student’s Special Education Itinerant Teacher (“SEIT”) attended (Ex. C-12). The CSE relied upon evaluative data solely from teacher interviews, parent input, classroom observations, and “informal assessments of skill performance” (Ex. C). It was determined that Student had a difficult time functioning in the classroom due to cognitive delays and was “functioning significantly below grade level” (Ex. C-1, 2). Student had “extreme difficulty understanding grade-level concepts, which affect[ed] [Student’s] ability to engage in pre-reading and pre-math tasks” (Ex. C-4). Student could not: identify numbers 10 through 20; count past five; or recall the letters and sounds of the alphabet (Ex. C-1, 2). Student had difficulty: completing classroom tasks; sequencing and retelling stories; answering “wh” questions; identifying the functions of objects; replicating block towers; and demonstrating problem solving skills (Ex. C-1). Student benefitted from “constant prompting and reinforcement” (Ex. C-1, 2).

Student also possessed “significant receptive and expressive language delays” as well as “mild speech and pragmatic language delays” (Ex. C-2). Student demonstrated delays when answering “wh” questions, labeling, retelling information, following directions, requesting, categorizing, sequencing, and inferencing (Ex. C-2). Student did not use complete sentences and possessed a limited vocabulary (Ex. C-2.)

Student’s social/emotional skills were “extremely deficient” (Ex. C-2). Student was “generally quiet,” did not engage with others and “often appear[ed] anxious nervous and unfocused” (Ex. C-2, 3). Student was “very sensitive,” especially when corrected (Ex. C-3). The CSE classified Student as a Student with Speech or Language Impairment and recommended: SETSS, to be provided in a group, five periods per week; individual SLT to be provided two times per week for 30 minutes; group SLT to be provided one time per week for 30 minutes; individual OT to be provided two times per week for 30 minutes; individual CO to be provided one time per week for 30 minutes and group CO to be provided one time per week for 30 minutes (Ex. F-1; Ex. C-1, 9). Parent agreed with that program (Ex. F-1).

The February 2022 IESP

On February 17, 2022, the CSE convened to develop an IESP for Student (Ex. F-1; Ex. D-1, 12; Ex. A-3). Parent, District Representative, a general education teacher and a classroom teacher attended (Ex. D-12). None of Student’s special education teachers or providers attended the meeting (Ex. F-2; Ex. D-12; Ex. A-3). The CSE did not document any evaluations relied upon in the creation of the IESP (Ex. F-2; Ex. D), but did rely upon input from Parent and Student’s thencurrent classroom teacher, speech-language (“S/L”) therapist, counselor and SETSS provider (Ex. D-2, 3, 4).

The classroom teacher reported that Student had progressed during the school year and was performing “in the average range compared to the rest of the class” (Ex. D-2). Student learned the alphabet and could count by rote (Ex. D-2). Student was learning to blend sounds for pre-reading and to write letters and numbers (Ex. D-2). Student’s math skills were “within the average range” and Student was working on adding and subtracting numbers (Ex. D-2). Student worked at a slower pace than classmates, and the SETSS provider noted that Student would read “very slowly and carefully” (Ex. D-2). Further, comprehension seemed “a bit below par” as evidenced by Student’s failure to recall details of a story (Ex. D-2). Parent noted that Student did not “struggle with doing [their] homework” (Ex. D-2).

Student continued to exhibit receptive and expressive language delays (Ex. D-2). The S/L therapist noted that Student’s slow and deliberate manner carried over into speech and communication (Ex. D-2). Student was “generally quiet” and did not engage with others (Ex. D-2). Student displayed an age-appropriate vocabulary base and could sequence a set of picture cards, but Student demonstrated difficulty describing objects based on attributes, function and category and utilized little descriptive and transitional language (Ex. D-2). Student could follow simple multi-level step commands, but not those more complex (Ex. D-2). Student was working on phonological skills, sound/symbol identification, rhyming, syllable counting, and decoding (Ex. D-2).

Regarding social development, the counselor noted that Student was “immature in many situations and is overall quiet and meek in [their] demeanor” (Ex. D-3). Although Student could interact with peers and follow routines, Student had difficulty interacting with classmates and engaging in age-appropriate play (Ex. D-3). In addition, Student could be “very sensitive,” “very serious,” and “very conscientious” (Ex. D-3). Student would become “very apprehensive and nervous” when asked to share belongings, was rigid, and was fearful of making a mistake (Ex. D-3). Parent shared that, at home, Student did not talk much and kept to themselves (Ex. D-3).

Parent stated that Student benefitted from counseling (Ex. D-3). Parent agreed with the CSE that Student did not require OT (Ex. D-4; Ex. A-3). Parent was also “in agreement that the academic support is not needed at this time” (Ex. D-2; Ex. A-3). ^[8]

The CSE continued to classify Student as a Student with Speech or Language Impairment and recommended: individual SLT to be provided two times per week for 30 minutes; group SLT to be provided one time per week for 30 minutes; individual CO to be provided two times per week for 30 minutes; and group CO to be provided one time per week for 30 minutes (Ex. F-1-2; Ex. D-9; Ex. A-3). The new recommendations maintained the same rate and duration of SLT, and increased CO by one, 30-minute individual session (compare Ex. C-9 with Ex. D-9). The CSE no longer recommended SETSS or OT (Ex. F-1; Ex. D-9; Ex. A-3).

When Parent explained to Student’s teachers what happened at the meeting, they “were shocked that the DOE had removed” the SETSS and advised Parent to call the District Representative to express that Parent did not consent to the removal of SETSS (Ex. F-2). Parent did not understand that they could “express disagreement” at the meeting (Ex. F-2). On February 17, 2022, the same day as the CSE meeting, Parent informed the District that they did not consent to the removal of SETSS (Ex. F-2; Ex. A-3-4). The District informed Parent that SETSS could be reinstated at a later date if Student performed poorly (Ex. A-4).

The 2023-2024 School Year On May 16, 2023, Parent signed a document provided by the District stating that Parent had placed their child in a non-public school at their own expense and sought special education services for the following school year (Ex. F-3; Ex. J).

The CSE failed to convene prior to the 2023-2024 school year to develop a new IESP for Student (Ex. A-4). The District also failed to provide any services to Student. Parent sought services from providers listed on the DOE’s list of eligible independent providers, but none were able to administer services to Student at the DOE’s “standard rates” (Ex. F-3; Ex. A-4).

The Provision of Services On September 5, 2023, Parent signed a contract with Provider Agency through which Provider Agency agreed to administer five hours of SETSS to Student at a rate of $200 per hour and three, 30-minute sessions of SLT at a rate of $250 per hour during the 2023-2024 school year (Ex. F-3; Ex. G-2; Ex. E). The contract states that Provider Agency is aware that Parent will seek payment from the DOE for SETSS and SLT, including by commencing an impartial hearing (Ex. E-1). The contract provides that Parent “remains responsible in full for the contracted SETSS and Speech-Language Therapy under the terms of this agreement,” regardless of the outcome of the hearing (Ex. E-1). Supervisor testified that Provider Agency’s rates are commensurate with rates charged by other agencies in the geographical area that administer the same services (Ex. G-2).

Student’s special education services are administered by Direct SETSS Providers #1 and #2 (Ex. F-3; Ex. G-2). Direct SETSS Providers #1 and #2 are each licensed in the State of New York and possess Internship Certificates to teach students from birth through Grade 2 (Ex. G-2-3; Ex. H).

SETSS are provided inside or outside of the classroom as needed (Ex. G-2). Student’s SLT is administered by Speech-Language Pathologist (“SLP”) (Ex. F-3; Ex. G-3). SLP is licensed and certified by the State of New York (Ex. G-3; Ex. I).

SETSS and SLT are needed to address Student’s deficits and challenges. Cognitively, Student exhibits a processing delay which causes Student to work at a slower pace than peers (Ex. G-1-2). Student has a difficult time initiating and completing tasks (Ex. G-1). Student is slow to answer questions and follow directions (Ex. G-2). Student has a difficult time acquiring grade-level concepts, and their ability to comprehend and recall what they have read is delayed (Ex. G-2). Student also possesses social/emotional delays and receptive, expressive and pragmatic language delays (Ex. G-1). Student has a difficult time interacting with peers and with initiating conversation or making requests for assistance (Ex. G-1). Student continues to be “very quiet,” reserved, and sensitive, and to become frustrated, anxious, nervous and unfocused (Ex. G-1). Student requires repetition to process auditory tasks and prompting to provide a response (Ex. G-2) and benefits from prompting, modeling and reinforcement (Ex. G-1).

Parent is satisfied with the services Provider Agency is administering (Ex. F-3). Supervisor and Parent believe that Student has made “meaningful and appropriate progress because [Student] has been receiving SETSS” (Ex. G-2; Ex. F-2). However, Student “remains academically and functionally delayed” (Ex. G-2; Ex. F-2). Student “requires SETSS in order to function in the classroom and to prevent [Student] from becoming further delayed” (Ex. G-2).

Parent seeks direct funding for the SETSS and SLT because Parent “cannot afford to advance the cost” of the services (Ex. F-3).

LEGAL STANDARDS AND FRAMEWORK

Burden of Proof

Except in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing. 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).

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 Individualized Education Program (“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 New York 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 § 3602c(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). 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.

ANALYSIS

Appropriate Program Here, Parent’s Attorney explained that although Parent agreed with the related services recommendations contained in the February 2022 IESP, Parent did not agree with the CSE’s decision not to recommend SETSS (Tr. 11, 14, 17-18). Parent seeks the five hours of SETSS as recommended by the March 2021 IESP (Tr. 14-15). Parent’s Attorney asserts that the DOE failed to provide Student a FAPE on an equitable basis for the 2023-2024 school year by not including any of Student’s special education teachers at the February 2022 IESP meeting and by failing to re-evaluate Student prior to removing the SETSS (Tr. 16; Ex. A-3, 4). Parent’s Attorney further asserts that the CSE failed to reconvene in advance of the 2023-2024 school year, and therefore, failed to develop a new IESP for Student (Tr. 14; Ex. A-4). Finally, the District failed to implement the February 2022 IESP (Tr. 16-17).

The District maintained that the February 2022 IESP is the operative IESP for Student for the 2023-2024 school year (Tr. 12).

I find that the District has failed to meet its burden to prove that the program it offered is appropriate. District Representative presented no evidence or witnesses and asserted no claims that the February 2022 IESP is appropriate. By contrast, Parent detailed their claims and why they believe Student requires SETSS (Ex. A; Ex. C; Ex. D; Ex. E; Ex. F; Ex. G). Those claims went wholly unaddressed by the District. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F., 137 S. Ct. at 1002. Here, by electing not to present a case, the District offered absolutely no explanation, let alone a cogent and responsive explanation, for the CSE’s program recommendations.^[9] Further, 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.

Additionally, a review of the record herein establishes that the weight of the evidence supports the conclusion that the District failed to offer Student an educational program reasonably calculated to offer a FAPE on an equitable basis for the 2023-2024 school year.

Addressing Parent’s specific claims, at the outset, I find that the CSE’s failure to reconvene in advance of the 2023-2024 school year resulted in the denial of a FAPE on an equitable basis for the current school year. The February 2022 IESP reflects an annual review date of February 17, 2023 (Ex. D-1). That review did not happen. Moreover, on May 16, 2023, Parent specifically requested that the District provide special education services for the following school year (Ex. F-3; Ex. J). Although it appears that the District intended to continue providing the related services on the February 2022 IESP, as evidenced by their provision of CO this school year, the District was not absolved of its obligation to create an updated IESP for Student. Turning to the February 2022 IESP, I find that the District’s failure to include any of Student’s special education teachers or providers at the February 2022 CSE meeting constituted a procedural violation. To be legally constituted, an IEP meeting must be attended by “not less than one of the student’s special education teachers, or, if appropriate, not less than one special education provider of the student.” 8 NYCRR § 200.3 (c)(2)(iii). The CSE’s reliance upon input from a SETSS provider is not a substitute for their presence at a meeting. Although I cannot state whether the presence of a special education teacher or provider would have changed the CSE’s ultimate recommendation, it is clear that the District’s failure was detrimental to Student given that the teachers immediately told Parent to call the District because Student still required SETSS. Further, if a special education teacher or provider was present, they might have explained to Parent that they could disagree with the decision to remove SETSS and/or consulted with Parent during the meeting about whether they wished to consent to the removal of SETSS.

Compounding the issue, the CSE failed to rely on any evaluations before removing the SETSS. The classroom teacher reported that Student had progressed during the school year and was performing “in the average range compared to the rest of the class” (Ex. D-2). However, the SETSS provider noted that Student would read “very slowly and carefully” and that their comprehension seemed “a bit below par” as evidenced by Student’s failure to recall details of a story (Ex. D-2). There is simply no testing or other objective evidence to explain how the CSE made its determination to remove SETSS. For all of these reasons, I find that the CSE’s failure to recommend SETSS on the February 2022 IESP resulted in a denial of a FAPE on an equitable basis for the 2023-2024 school year. As explained further below, in addition to ordering the continued provision of or funding for the related services contained on the February 2022 IESP, I am ordering the District to fund five hours of SETSS per week until evaluations are conducted and/or the CSE develops an updated IEP or IESP for Student.

Failure to Implement

I also find that the District failed to offer Student a FAPE on an equitable basis for the 2023-2024 school year because, thus far, the District has failed to implement the SLT recommendation (Tr. 12). Although the District has been providing CO (Tr. 12), the failure to provide SLT is not de minimis, particularly given that the District has recommended only two services and given Student’s documented expressive, receptive and pragmatic speech delays.

The DOE had the obligation to provide services to Student. In failing to do so, 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.

REMEDIES

Compensatory 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. 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, 790 F.3d at 454).

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. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time, and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. See P. v. Newington, 546 F.3d at 123. Compensatory education can serve as a “replacement of educational services the child should have received in the first place,” and any award “should aim to place disabled children in the same position they would have occupied but for the school district’s violations of IDEA[.]” Reid v. Dist. of Columbia, 401 F.3d 516, 518 (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”).

Compensatory education awards 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. See Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-79 (7th Cir. 2015). Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers. See 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).

In this case, the DOE did not carry its burden. As noted above, New York State law places the burden of production and persuasion in this type of case entirely on the DOE. See N.Y. Educ. Law § 4404(1)(c). The DOE is, therefore, required to address its burdens by describing 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 Student in the position that Student would have been but for the denial of a FAPE. The District did not present any evidence during the DPH to set forth its position regarding the appropriate compensatory remedy (Tr. 12).

Parent has asked that I fund five hours of SETSS per week at the rate of $200 per hour and SLT at a rate of $250 per hour (Ex. F-3; Tr. 16-17; Ex. A-4). In their closing statement, District Representative objected to the application of “any rates attached to the contract as reasonable, enhanced or as market rate,” and asked that my Order “allow the District to determine the market rate” (Tr. 14). In their closing statement, Parent’s Attorney asserted that the DOE bore the burden of proof regarding rates and that the District failed to submit evidence or testimony in support of their burden to prove that the rate Parent seeks is excessive (Tr. 17).

I find that the DOE failed to present any evidence regarding the rate at which SETSS or SLT being provided to Student should be funded. The DOE failed to provide any evidence as to what they believe the “appropriate rate” to be. Accordingly, I am ordering that the DOE fund five hours of SETSS at a rate of $200 per hour and SLT at a rate of $250 per hour.

Regarding CO, the District is currently providing those services (Tr. 12). I am ordering the District to continue to provide CO to Student. Should the District fail to administer those services, the District is to fund those services through RSAs or through direct payment to providers of Parent’s choosing at “a reasonable market rate” for CO. The “reasonable market rate” is to be consistent with rates that have been paid by the Implementation Unit for comparable CO within six months of the date of this Decision. Further, the provider must be appropriately licensed as set forth in my Order below. ^[10]

Direct Funding for SETSS and Related Services

Parent has requested direct funding for services (Ex. F-3; Tr. 18), and asserts that pursuant to Cohen v. N.Y. City Dep't of Educ., Parent is not required to establish financial hardship to receive such funding (Tr. 18). I find that Parent is entitled to the requested relief.

As explained above, Parent is legally obligated to pay Provider Agency $200 per hour for SETSS and $250 per hour for SLT (Ex. F-3; Ex. E-1). The contract provides that Parent “remains responsible in full for the contracted SETSS and Speech-Language Therapy under the terms of this agreement,” regardless of the outcome of the hearing (Ex. E-1). Moreover, Parent testified that they require direct funding because they are unable to pay for the services (Ex. F-2).

I also find that Parent is entitled to direct funding should the District fail to provide CO and Parent finds it necessary to contract with a provider for CO.

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 U.S. Dist. LEXIS 43032 (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.

Although the contract is in evidence (Ex. E), I am ordering the District to fund special education and related services as detailed in my Order below, which requires Parent to present a valid contract between Parent and provider and an affidavit attesting that the services billed for were provided. Funding for a 10-Month School Year

I find that Student is entitled to funding of SETSS and SLT during a 10-month school year as recommended by the March 2021 and February 2022 IESPs (Ex. C-9; Ex. D-9) and the testimony in this matter (Ex. F; Ex. G). 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. ^[11]

EVALUATIONS AND RECONVENING OF THE CSE

Although Parent has not requested any evaluations, Parent has requested that I order “[s]uch other and further relief as is appropriate” (Ex. A-5). I have found that the District removed Student’s SETSS improperly, in part, because there were no evaluations to support their decision. I also have found that the District improperly failed to draft an updated IESP in advance of the 2023-2024 school year. Therefore, I am directing that if the District has not conducted a re-evaluation of Student that they are to reach out to Parent within 35 days of this Decision to obtain Parent’s consent for a re-evaluation. If Parent consents, I further direct the District to schedule appropriate testing within 35 days of obtaining Parent’s consent.

Finally, I am ordering the CSE to reconvene to determine Student’s continued eligibility for special education and/or related services, and if eligible, to develop an IESP or IEP in accordance with the IDEA and State law. The CSE is to reconvene either within 35 days of receiving the results of the re-evaluation, or if Parent declines to consent, within 35 days of receipt of their declination.

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 group Special Education Teacher Support Services (“SETSS”), five hours per week to be administered by a licensed special education teacher of Parent’s choosing. Provider Agency’s services are to be funded at $200 per hour. If Parent secures a different provider, funding shall be at a “reasonable market rate” not to exceed the rate previously paid to that same provider by the DOE’s own Implementation Unit within the last six months with the rate not to exceed $200 per hour. Funding shall be retroactive to the start of the 10-month, 36-week 2023-2024 school year and shall continue until a new Individualized Education Program (“IEP”) or Individualized Education Services Program (“IESP”) is developed in accordance with this Order further below; and it is further

ORDERED THAT the DOE shall pay the provider listed above within 35 days of receipt 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 provide for the 10-month, 36-week 2023-2024 school year individual Speech Language Therapy (“SLT”), two times per week for 30 minutes, to be administered by a licensed speech-language pathologist of Parent’s choosing. Provider Agency’s services are to be funded at $250 per hour. If Parent secures a different provider, funding shall be at a “reasonable market rate” not to exceed the rate previously paid to that same provider by the DOE’s own Implementation Unit within the last six months with the rate not to exceed $250 per hour; and it is further

ORDERED THAT the DOE shall pay the provider listed above within 35 days of receipt 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 provide for the 10-month, 36-week 2023-2024 school year group SLT, one time per week for 30 minutes, to be administered by a licensed speech-language pathologist of Parent’s choosing. Provider Agency’s services are to be funded at $250 per hour. If Parent secures a different provider, funding shall be at a “reasonable market rate” not to exceed the rate previously paid to that same provider by the DOE’s own Implementation Unit within the last six months with the rate not to exceed $250 per hour; and it is further

ORDERED THAT the DOE shall pay the provider listed above within 35 days of receipt 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 provide for the 10-month, 36-week 2023-2024 school year individual Counseling (“CO”), two times per week for 30 minutes. If the DOE fails to provide individual CO, the DOE shall directly fund said CO through Related Services Authorizations (“RSAs”) or at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services for individual CO within six months of the date of this Order. The funding through RSA or direct payment is at Parent’s choosing, but the provider must be appropriately licensed; and it is further

ORDERED THAT the DOE shall pay the provider listed above within 35 days of receipt 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 provide for the 10-month, 36-week 2023-2024 school year group CO one time per week for 30 minutes. If the DOE fails to provide group CO, the DOE shall directly fund said CO through RSAs or at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services for group CO within six months of the date of this Order. The funding through RSA or direct payment is at Parent’s choosing, but the provider must be appropriately licensed; and it is further

ORDERED THAT the DOE shall pay the provider listed above within 35 days of receipt 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; and it is further

ORDERED that, unless the DOE has conducted a re-evaluation of Student since the filing of the Due Process Complaint (“DPC”), the DOE shall seek Parent’s consent for a re-evaluation within 35 days of this Order; and it is further

ORDERED that, if Parent consents to the re-evaluation, the DOE must schedule an appropriate evaluation within 35 days of receiving Parent’s consent to evaluate; and it is further

ORDERED that the District shall provide Parent with copies of the evaluation results within 10 days of the date such report is completed; and it is further

ORDERED that, the CSE shall reconvene within 35 days of receipt of the final report to consider Student’s continued eligibility for special education and/or related services, and if eligible, to develop an IESP or IEP in accordance with the IDEA and State law; and it is further

ORDERED that, if Parent does not consent to the re-evaluation, the CSE shall reconvene within 35 days of receipt Parent’s declination of consent to consider Student’s continued eligibility for special education and/or related services, and if eligible, to develop an IESP or IEP in accordance with the IDEA and State law.

December 20, 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

Yaakov Shkouri Student

Miriam Shkouri Parent

Natan Shmueli, Esq. Parent’s Attorney

Amy Pettway District Representative

Yeshivat Ohel Torah Private School

22 Home District

REDACTED Service District

REDACTED SEIT

REDACTED District Representative

REDACTED Supervisor at Provider Agency

REDACTED SETSS Provider Agency

REDACTED Direct SETSS Provider #1

REDACTED Direct SETSS Provider #2

REDACTED Speech-Language Pathologist

APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Request for Due Process Proceeding and Notice of Appearance 09/06/2023 (8 pages)

B. Due Process Response 09/19/2023 (3 pages)

C. Individualized Education Services Program (IESP) 03/24/2021 (12 pages)

D. Individualized Education Services Program (IESP) 02/17/2022 (12 pages)

E. 2023-2024 Special Education Teacher Support Services (“SETSS”) and Speech-Language Therapy Contract 09/05/2023 (3 pages)

F. Affidavit of REDACTED (Parent) 10/26/2023 (3 pages)

G. Affidavit of REDACTED (Supervisor, REDACTED) 10/26/2023 (3 pages)

H. Certificate Information for SETSS Providers 10/24/2023 (2 pages)

I. Certificate Information for Speech-Language Therapist 02/27/2020 (2 pages)

J. Letter of Intent to Parentally Place Student 05/16/2023 (3 pages)

DOE EXHIBITS

None

IHO EXHIBITS

I. Initial Order Regarding Scheduling of Appearances and Expectations for the Hearing (Redacted) 09/28/2023 (3 pages)

II. Memorialization of Status Conference and Order Regarding Scheduling of Appearances and Expectations for the Hearing (Redacted) 10/25/2023 (3 pages)

III. Order on Pendency 11/20/2023 (3 pages)

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] In their DPC, Parent explains that the CSE also failed to continue to recommend Occupational Therapy (“OT”), but that they consented to the removal of that service (Ex. A-3).

[3] As noted, the CSE previously had recommended that Student receive five periods of SETSS per week (Ex. C-9). I deem one period to equal one hour.

[4] 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.

[5] District Representative appeared as an “Observing Representative.”

[6] References to the transcript from the DPH conducted on November 2, 2023 are denoted “Tr.”

[7] District Representative had not requested the witnesses’ appearances for cross-examination (Tr. 11).

[8] Parent testified that they responded “ok” when the CSE informed Parent that they would be removing SETSS (Ex. F-2).

[9] I further note that the District’s Due Process Response (Ex. B) sheds no light on the issues in this matter. The only information the DOE provided on the form was Student’s name, the fact that a CSE meeting was conducted on February 17, 2022, that Student was classified as a child with speech or language impairment and that the CSE recommended “General education with related services” (Ex. B).

[10] State Review Officers (“SROs”) with the New York State Office of State Review analyze these types of “enhanced rate SETSS” matters using different frameworks. At least one SRO uses a modified Burlington/Carter standard (see e.g. Application of the New York City Department of Education, Appeal No. 23-071), while at least one other SRO uses a compensatory services analysis (see e.g. Application of the New York City Department of Education, Appeal No. 23-065).

[11] See https://www.schools.nyc.gov/about-us/news/2023-2024-school-year-calendar (last visited December 18, 2023). See also generally Application of a Child with a Disability, Appeal No. 23-033, FN 10.