New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 608559 – NYC: 255700

FINDINGS OF FACT AND DECISION

Case Number: 255700

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 7, 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 January 13, 2022, the Committee on Special Education (“CSE”) drafted an Individualized Education Services Program (“IESP”) recommending that Student receive Special Education Teacher Support Services (“SETSS”), Speech-Language Therapy (“SLT”), Occupational Therapy (“OT”) and Counseling (“CO”) (“the January 2022 IESP”) (Ex. A; Ex. F). Parent further alleges that the IESP is inadequate because it “continues to ignore [Student’s] foundational learning challenge,” which includes challenges in reading and writing (Ex. A-2). Parent contends that Student “requires three hours per week with a reading specialist in addition to the program and services recommended for [Student] in the January 13, 2022 IESP” (Ex. A-2). Additionally, Parent asserts that the District failed to provide Student a FAPE on an equitable basis by not providing Student with the SETSS and related services it had recommended pursuant to the January 2022 IESP (Ex. A; Ex. F).

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, seven hours per week;^[2] individual SLT to be provided two times per week for 30 minutes; individual OT to be provided two times per week for 30 minutes; and individual CO to be provided one time per week for 30 minutes, as well as Reading Specialist services to be provided three hours per week (Ex. A; Ex. F-9). Parent further seeks an Order directing the DOE to evaluate Student for Dyslexia (Tr. 16-18). Finally, Parent requested pendency.

PROCEDURAL HISTORY

On September 12, 2023, I was appointed Impartial Hearing Officer (“IHO”) for this case.

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. ^[3]

On October 25, 2023, Parent’s Attorney and a representative from the District appeared before me for a Status Conference. ^[4]

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). ^[5] At the DPH, District Representative did not proffer any exhibits or witness testimony (Tr. 12). Parent’s Attorney proffered Exhibits A through O, which included affidavits by the provider currently administering SETSS to Student (“Direct SETSS Provider”) (Ex. L), Parent (Ex. M) and the provider administering reading services to Student (“Reading Specialist”) (Ex. N) (Tr. 13-16). District Representative had no objection to any of the exhibits, and I admitted all into evidence (Tr. 16, 18). Neither Party presented an opening statement (Tr. 18-19).^[6] Parent’s Attorney explained that Parent did not agree with an IESP drafted by the District, but agreed with the program ordered pursuant to the FOFD entered as Exhibit B (“the February 2022 FOFD”) (Tr. 19). When asked if the District had implemented either IESP, District Representative stated that the most recent IESP was dated December 5, 2022 and although it “is the District’s intention to move forward with that,” District Representative did not know “[w]here they are in that process” (Tr. 20). Neither Party submitted the December 5, 2022 IESP (Tr. 20). However, District Representative agreed that Student is entitled to the SETSS, SLT, OT, CO and Reading Specialist services as ordered pursuant to the prior, unappealed FOFD (Tr. 20-21). Parent’s Attorney clarified that they were not seeking enhanced rates for the related services of SLT, OT or CO, but rather an order directing a continuation of those services and directing the District to provide those services or to fund them at a “fair market rate” (Tr. 22). District Representative presented a closing statement followed by Parent’s Attorney (Tr. 23). I reserved decision on the Parties’ request to extend the compliance date (Tr. 23-25).

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 all witnesses credible.

Overview Student and Parent reside in New York City and Student is attending the fifth grade at Private School for the 2023-2024 school year (Ex. L-4; Ex M-1; Ex. N-2; Ex. A). Private School is located within the geographic boundaries of the DOE (Ex. M-1; Ex. A).

Background

On September 3, 2020, Student was evaluated to understand the basis for Student’s reading difficulties (Ex. M-1; Ex. I). The evaluator determined that Student had “significant difficulties with phonological awareness, alphabet recognition and formation, writing fluency and automaticity, phonics, grade level sight words, decoding, reading comprehension, grade-level spelling and deductive reasoning” (Ex M-1; Ex. I-2-6). Student also exhibited behavioral challenges, such as becoming easily frustrated and having difficulty initiating and completing tasks perceived as challenging (Ex. M-1; Ex. I-1, 5, 6). The evaluator determined that Student “requires explicit instruction” and recommended that Student receive instruction from a certified instructor in the Orton-Gillingham approach (Ex. M-1; Ex. I-7). Parent provided that evaluation to the District (Ex. M-1-2).

On November 16, 2020, the CSE convened to develop an IESP for Student for the remainder of the 2020-2021 school year (“the November 2020 IESP”) (Ex. M-1-2; Ex. C-1, 15). 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; individual OT to be provided two times per week for 30 minutes; individual Physical Therapy (“PT”) to be provided two times per week for 30 minutes; and individual CO to be provided one time per week for 30 minutes (Ex. M-2; Ex. C-1, 12). On August 5, 2021, Parent, through counsel, sent the District a letter requesting that the CSE reconvene to consider additional documents related to Student’s reading challenges and to modify Student’s IESP by increasing the number of SETSS periods and adding Reading Specialist services (Ex. M-2-3; Ex. D). The District did not respond to that request (Ex. M).

On November 9, 2021, the CSE convened to develop an IESP for Student for the 2021-2022 school year (“the November 2021 IESP”) (Ex. M-3). When Parent asked about additional services, the District informed Parent that they could not add services because Student needed to be re-evaluated (Ex. M-3). The CSE continued to classify Student as a Student with Speech or Language Impairment and recommended the same program as the November 2020 IESP, except that they discontinued PT (Ex. M-2; see generally Ex. B).

On December 20, 2021, the District re-evaluated Student (Ex. M-3; Ex. J). The evaluator who conducted the Psychoeducational Evaluation determined that Student struggled with tasks involving reading and writing, especially in Word Reading, Reading Comprehension and Sentence Composition (Ex. M-3; Ex. J-2, 3, 4). The evaluator also noted behavioral challenges, which resulted in the evaluator discontinuing tasks Student verbalized as being too difficult (Ex. M-3-4; Ex. J-1, 3, 4). The District did not specifically evaluate Student for Dyslexia, despite Parent’s requests (Ex. M-3, 4; Ex. E-2). ^[7]

On January 13, 2022, the CSE convened to discuss the re-evaluation and to develop a new IESP for Student (“the January 2022 IESP”) (Ex. M-4; Ex. F-1, 12). The DOE increased Student’s SETSS to seven periods per week and maintained the frequency and duration of the SLT, OT and CO (Ex. M-4; Ex. F-9). The DOE did not recommend Reading Specialist services (Ex. M-4).

Meanwhile, on October 4, 2021, Parent, through counsel, filed a DPC for the 2021-2022 school year (Ex. M-3). On February 13, 2022, an IHO issued a FOFD ordering the District to provide or fund: SETSS, to be provided in a group, seven hours per week; individual SLT to be provided two times per week for 30 minutes; individual OT to be provided two times per week for 30 minutes; and individual CO to be provided one time per week for 30 minutes (Ex. M-4; Ex. A-2; Ex. B-10). The IHO also ordered the District to provide or fund three hours per week of Reading Specialist services (Ex. M-4; Ex. A-2; Ex. B-10). Finally, the IHO ordered the District to “forthwith evaluate the Student specifically for dyslexia” (Ex. M-4; Ex. A-2; Ex. B-1). The IHO ordered that if the District failed to do so within 30 days of the date of the Order, the “District shall fund the cost of an evaluation by a provider of Parent’s choosing” with the provider to be compensated at “market rate” (Ex. B-10). The CSE was ordered to re-convene “[u]pon completion of the evaluation” to discuss potential modifications to the IESP (Ex. B-10). The District has not evaluated Student for Dyslexia (Ex. M-4). ^[8]

The 2023-2024 School Year On May 30, 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. M-5; Ex. O). However, the CSE failed to create a “timely and appropriate special education program for [Student] for the 2023-2024 school year” (Ex. M-5). The District also failed to identify available providers to administer services to Student for the 2023-2024 school year (Ex. M-5).

Parent sought services from SETSS 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 rate” (Ex. A-4; Ex. M-5).

The Provision of Services On August 31, 2023, Parent signed a contract with Provider Agency through which Provider Agency agreed to administer seven hours of SETSS to Student at a rate of $200 per hour during the 2023-2024 school year (Ex. M-5; Ex. G). The contract states that Provider Agency is aware that Parent will seek payment from the DOE for SETSS, including by commencing an impartial hearing (Ex. D-1). The contract provides that Parent “remains responsible in full for the contracted

SETSS under the terms of this agreement,” regardless of the outcome of the hearing (Ex. G-1).

Student’s special education services are administered by Direct SETSS Provider (Ex. M-5; Ex. L-2). Direct SETSS Provider is a licensed and certified special education teacher in the State of New York, but for students from birth through Grade 2 (Ex. L-1; Ex. K-1) and is an experienced SETSS provider for elementary students (Ex. L-1). Direct SETSS Provider has worked with Student for approximately two years (Ex. L-2; Ex. M-5). When Direct SETSS Provider began working with Student, they determined that although Student had the cognitive ability to learn on grade level, they were “far below” grade level in all academic subjects (Ex. -2). Student exhibited and continues to exhibit “severe reading delays” (Ex. L-2).

Student also presented with behavioral challenges, manifesting as the inability to adequately sustain attention and focus, the demonstration of a poor sense of self-esteem and “a propensity to become oppositional, to get easily overwhelmed and frustrated and to shut down for the entire duration of a session” (Ex. L-2). Per Direct SETSS Provider, while some of these behavioral challenges may be related to Student’s academic delays, “they had and have to be addressed as a prerequisite to [Student] being able to make meaningful progress” (Ex. L-2). Direct SETSS Provider administers services inside the classroom “as much as practicable . . but if [Student] is getting too distracted or unfocused, [they] will work outside the classroom” (Ex. L-4). The goal is for Student to “make appropriate academic progress on [their] own inside the classroom” (Ex. L-4). Direct SETSS Provider breaks down instructions and materials into small chunks, uses scaffolding and chaining, employs a token reward system, and builds into the curriculum “[u]nique reinforcers that cater to [Student’s] interest” (Ex. L-3). Student is also given extra time to complete tasks, uses “the five W’s” and benefits from graphic organizers (Ex. L-3-4).

On September 5, 2023, Parent signed a contract with Reading Specialist through which Reading Specialist agreed to administer three hours of Reading Services to Student at a rate of $200 per hour during the 2023-2024 school year (Ex. M-5; Ex. N-1; Ex. H). The contract states that Reading Specialist is aware that Parent will seek payment from the DOE for Reading Specialist Services, including by commencing an impartial hearing (Ex. H-1). The contract provides that Parent “remains responsible in full for the contracted Reading Specialist Services provided under the terms of this agreement,” regardless of the outcome of the hearing (Ex. H-1).

In addition to the approximately seven hours of SETSS (Ex. L-3), Reading Specialist administers approximately three hours per week of specialized reading and writing instruction (Ex. L-3; Ex. N-1). Direct SETSS Provider, Reading Specialist and Student’s teachers work together to “put together a curriculum that is tailored to [Student’s] needs” (Ex. L-3; Ex. N-2).

Reading Specialist is a licensed and certified special education teacher in the State of New York for students from Grades 1 through 6 (Ex. N-1; Ex. K-2). Reading Specialist is a certified Wilson Dyslexia Practitioner and has completed 100 hours of training in the Orton-Gillingham method (Ex. N-1). Reading Specialist has worked with Student for approximately two years (Ex. M-5). Reading Specialist cannot make a “formal diagnosis” of Dyslexia because they are not a psychologist or medical doctor (Ex. N-1), but based on their training and experience, they have concluded that Student exhibits “all the hallmarks of Dyslexia” (N-1-2). Student has “significant difficulties” comprehending and processing what they are reading, organizing their thoughts, and being able to write full and complete sentences (Ex. L-3). Student’s reading challenges affect their ability to make progress in English Language Arts (“ELA”), History, Science and Math (Ex. L-4).

Direct SETSS Provider and Reading Specialist have each observed the progress Student has made with these services (Ex. L-3; Ex. N-2). Student began at a primer level (Ex. L-4). Student has increased to an end-of-second-grade level in areas such as decoding, encoding and handwriting and to a beginning-of-third-grade level in areas such as comprehension (Ex. L- 3, 4; Ex. N-2). Direct SETSS Provider and Reading Specialist also have observed Student’s “significant functional progress,” including an improved attitude and motivation to succeed, a decrease in the frequency with which Student becomes oppositional and shuts down, and improvement in the ability to be calmed (Ex. L-4; Ex. N-2). Parent is “very satisfied” with the services of each provider and believes Student has made “significant progress” since working with each service provider (Ex. M-5, 6)

Despite the observed progress, Student remains more than two years below grade level in Reading and Writing and one- to two-grade levels below in Math (Ex. L-4-5; Ex. N-2). Student’s frustration affects their self-confidence and motivation (Ex. N-2). Moreover, Student still struggles with distractibility and maintaining focus (Ex. L-4).

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 Parent did not agree with an IESP drafted by the District, but agreed with the program ordered pursuant to the February 2022 FOFD (Tr. 19; Ex. B). That program is the same as the recommendations contained on the January 2022 IESP, but with the addition of three hours of Reading Specialist services (compare Ex. F-9 with Ex. B-10). Notably, District Representative agreed that Student is entitled to the services ordered pursuant to the FOFD (Tr. 20-21).

At the outset, I note that the February 2022 FOFD is not the basis for my decision as to what an appropriate program for Student is for the 2023-2024 school year. Although the FOFD may constitute a proper basis for pendency, it is not the proper basis for my FOFD.

I find that the special education and related services recommended pursuant to the January 2022 IESP along with the three hours of Reading Specialist services is the appropriate program for Student because not only has the District agreed that Student is entitled to these services (Tr. 20-21), but also because 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 January 2022 IESP is appropriate. By contrast, Parent detailed their claims and why they sought the services of Reading Specialist (Ex. A; Ex. D; Ex. E; Ex. I; Ex. J; Ex. L; Ex, M; Ex, N). 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. 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. 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. 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 any services to Student for the 2023-2024 school year (Tr. 20).

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 seven hours of SETSS per week at a rate of $200 per hour and that I award all related services as set forth on the January 2022 IESP (Ex. A-5; Ex. F-9; Tr. 23). 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. 23). 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. 23).

I find that the DOE failed to present any evidence regarding the rate at which SETSS 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 seven hours of SETSS at a rate of $200 per hour.

Similarly, I find that the DOE failed to present any evidence regarding the rate at which the Reading Specialist services 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 three hours of Reading Specialist services at a rate of $200 per hour.

I further find that Student is entitled to SLT, OT and CO as recommended by the CSE on the January 2022 IESP (Ex. A; Ex. F-9). Parent did not provide any information about who would be administering those services or seek a specific rate for funding of those services (Ex. A-5; Tr. 22). I am particularly concerned that Student is classified as a Student with Speech or Language Impairment (Ex. F-1) and is not receiving SLT. I am also very concerned that Student’s behavioral challenges have been observed by numerous individuals over a span of years and that Student’s confidence and self-esteem are being affected by their scholastic struggles (Ex. I-1, 5, 6; Ex. J-1, 3, 4; Ex. L-2, 4; Ex. M-1, 3-4; Ex. N-2), but that Student is not receiving any counseling. I am ordering that the District provide SLT, OT and CO to Student. Further, until such time as the DOE implements those services, I am ordering that the District fund those services through direct payment to providers of Parent’s choosing at “a reasonable market rate” for each service. The “reasonable market rate” is to be consistent with rates that have been paid by the Implementation Unit for comparable SLT, OT and CO within six months of the date of this decision. Further, the providers must be appropriately licensed as set forth in my Order below. ^[9]

Direct Funding for SETSS, Reading Special Services and Other Related Services

Parent’s Attorney did not specifically request reimbursement to Parent or direct funding for services. Based on the contracts before me that each indicate that the providers will wait for payment until the conclusion of the impartial hearing process (Ex. G; Ex. H) and in the absence of any receipts documenting that Parent has paid for services for the 2023-2024 school year, I find that Parent seeks direct funding. I also find that pursuant to Cohen v. New York City Department of Education, Parent need not establish financial hardship to obtain such funding. I find that Parent is entitled to direct funding.

As explained above, Parent is legally obligated to pay Provider Agency $200 per hour for SETSS (Ex. G) and $200 per hour for Reading Specialist services (Ex. H). Each contract specifically provides that Parent “remains responsible in full” for the contracted services (Ex. G-1; Ex. H-1).

I also find that Parent is entitled to direct funding should they contract with a provider for SLT, OT and/or CO services.

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 SETSS and Reading Specialist services contracts are in evidence (Ex. G; Ex H), 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, SLT, OT, CO and Reading Specialist services during a 10-month school year as recommended by the January 2022 IESP and the testimony and exhibits submitted at this DPH (Ex. C; Ex. D; Ex. E; Ex. F-9; Ex. I; Ex. J; Ex. L; Ex, M; Ex. N). 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. ^[10]

REQUEST FOR AN EVALUATION TO SCREEN FOR DYSLEXIA

Parent also has requested that I order the District to screen Student for Dyslexia. I am granting that request.

At the DPH, Parent’s Attorney noted that the IHO who issued the February 2022 FOFD had ordered the District to evaluate Student for Dyslexia but that the District had not done so (Tr. 16). Parent’s Attorney acknowledged that they had not specifically requested an IEE in their current DPC (Tr. 16-17). However, as part of their proposed resolution, Parent’s Attorney requested that I order “[s]uch other and further relief as is appropriate” (Tr. 17; Ex. A-5).

Notably, although Parent’s Attorney highlighted that the prior IHO ordered the District to “forthwith evaluate the Student specifically for dyslexia” (Ex. M-4; Ex. A-2; Ex. B-1), Parent’s Attorney did not explain that the IHO ordered that if the District failed to do so within 30 days of the date of the Order, the “District shall fund the cost of an evaluation by a provider of Parent’s choosing” with the provider to be compensated at “market rate” (Ex. B-10). Further, the CSE was ordered to re-convene “[u]pon completion of the evaluation” to discuss potential modifications to the IESP (Ex. B-10).

I am mindful that it is not Parent’s burden to arrange for the evaluation. I also understand that it is beyond my legal authority to enforce another IHO’s order. Based on the record before me, I, independently, find that Student is entitled to an evaluation specifically to rule out or to confirm a diagnosis of Dyslexia. Accordingly, I am ordering, unless they have done so already, the District to conduct an evaluation to determine whether Student is living with Dyslexia. Further, I am ordering that, if the District fails to arrange for the evaluation within 35 days of the date of this FOFD, Parent may obtain such an evaluation which is to be funded by the District at a “reasonable market rate.” Finally, I am ordering the CSE to re-convene within 35 days of receipt of the Dyslexia evaluation report to consider that report and to develop a current IEP or IESP for Student.

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”), seven 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; 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 fund for the 10-month, 36-week 2023-2024 school year, Reading Specialist services, three hours per week to be administered by a licensed reading specialist of Parent’s choosing. Reading Specialist’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; 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. Until the DOE provides said services, the DOE shall directly fund said SLT at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services for individual SLT within six months of the date of this Order. Parent may choose the SLT provider, but the provider must be a licensed speech language therapist; 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 Occupational Therapy (“OT”), two times per week for 30 minutes. Until the DOE provides said services, the DOE shall directly fund said OT at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services for individual OT within six months of the date of this Order. Parent may choose the OT provider, but the provider must be a licensed occupational therapist; 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”), one time per week for 30 minutes. Until the DOE provides said services, the DOE shall directly fund said CO 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. Parent may choose the CO provider, but the provider must be properly 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 an evaluation to determine whether Student is living with Dyslexia, the DOE shall schedule a Dyslexia evaluation within 35 days of this Order; 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 if the DOE does not schedule such evaluation within 35 days of the date of this Order, the DOE shall fund an independent, Dyslexia evaluation (“Dyslexia IEE”) of Student by a licensed evaluator of Parent’s choosing at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for a comparable evaluation within six months of the date of this Order; and it is further

ORDERED that the DOE shall issue the payment directly to the Dyslexia IEE evaluator within 35 days of receipt of the IEE report and an invoice; and it is further

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

ORDERED that if so elected by Parent as an alternative payment method, the DOE shall implement this order by issuing all necessary Assessment Authorization (“AA-2”) forms for the Dyslexia IEE within no more than 35 days after the DOE’s receipt of Parent’s request for the Assessment Authorization forms; and it is further

ORDERED that if the IEE is funded through the AA-2 process, the DOE shall provide Parent with copies of the Dyslexia evaluation results within 10 days of the date such report is completed; and it is further

ORDERED that the Committee on Special Education (“CSE”) shall convene within 35 days of receipt of the report of the Dyslexia evaluation to consider that report and Student’s 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 until such time as the CSE convenes, the District must implement services as mandated by this Order.

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

REDACTED Student

REDACTED Parent

REDACTED Parent’s Attorney

REDACTED District Representative

REDACTED Private School

REDACTED Home District

REDACTED Service District

REDACTED Direct SETSS Provider

REDACTED SETSS Provider Agency

REDACTED Reading Specialist

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. Findings of Fact and Decision (“FOFD”) (Case Number: REDACTED) 02/23/2022 (17 pages)

C. Individualized Education Services Program (IESP) 11/16/2020 (15 pages)

D. Letter to DOE Requesting Increase in Services, with Attachments (faxed 08/05/2021) 08/04/2021 (9 pages)

E. Email Requesting Re-Evaluation of Student 11/16/2021 (4 pages)

F. Individualized Education Services Program (IESP) 01/13/2022 (12 pages)

G. 2023-2024 Special Education Teacher Support Services (“SETSS”) Contract 08/31/2023 (2 pages)

H. Contract for Reading Specialist Services 09/05/2023 (2 pages)

I. Orton-Gillingham Screening 09/03/2020 (7 pages)

J. Psychoeducational Evaluation 12/20/2021 (4 pages)

K. Certificate Information for REDACTED and REDACTED 10/26/2023 ^[11] (2 pages)

L. Affidavit of REDACTED 10/23/2023 (5 pages)

M. Affidavit of REDACTED 10/26/2023 (6 pages)

N. Affidavit of REDACTED 10/23/2023 (3 pages)

O. Letter of Intent to Parentally Place Student 05/30/2023 (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 (2 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] The CSE recommended that Student receive seven periods of SETSS per week (Ex. F-9). I deem one period to equal one hour.

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

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

[6] District Representative had not requested the witnesses’ appearances for cross-examination.

[7] The Psychoeducational Evaluation states, “According to parents, [Student] is diagnosed with Dyslexia” (Ex. J-1). Further, the January 2022 IESP states that “[Student] has been diagnosed with Dyslexia via an Orton-Gillingham screening” (Ex. F-3).

[8] Parent, through counsel, filed a DPC for claims related to the 2022-2023 school year, but that matter was resolved without the need for a hearing (Ex. M-4).

[9] 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).

[10] 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.

[11] Although the Cover Sheet reflects a date of December 26, 2023, Parent’s Attorney clarified on the record that the date should have been reflected as October 26, 2023 (Tr. 14).