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CASE NUMBER: 609748- NYC: 256861
FINDINGS OF FACT AND DECISION
| Case Number | 256861 |
|---|---|
| Student’s Name | REDACTED |
| Home District | REDACTED |
| Service District | REDACTED |
| Impartial Hearing Officer | Ginger James |
| Date of Filing | September 7, 2023 |
| Hearing Requested by | Parent |
| Date of Hearing | November 9, 2023 |
| Record Close Date | November 21, 2023 |
| Date of Decision | November 21, 2023 |
| Time Sensitive | No |
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 9, 2023
For the Student:
REDACTED, Parent’s Representative
For the New York City Department of Education:
REDACTED, District Representative
BACKGROUND AND POSITIONS OF THE PARTIES
Parent,[1] through counsel, filed a Due Process Complaint (“DPC”) on September 7, 2023 (Ex. A).
In the DPC, Parent alleges, among other things, that the Department of Education (“DOE” or “District”) failed to provide Student a free appropriate public education (“FAPE”) on an equitable basis for the 10-month, 2023-2024 school year by not providing Student with Special Education Teacher Support Services (“SETSS”), Occupational Therapy (“OT”), Speech Language Therapy (“SLT”), Physical Therapy (“PT”) and Counseling (“CO”) that the Committee on Special Education (“CSE”) had recommended pursuant to Student’s Individualized Education Services Program (“IESP”) dated December 17, 2021 (“the December 2021 IESP”) (Ex. A; Ex. D). Additionally, Parent is entitled to receive Parent Counseling and Training (“PCAT”) pursuant to the December 2021 IESP (Ex. D-8).
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 REDACTED in a group, ten periods per week; individual OT to be provided in English, one time per week for 30 minutes; SLT to be provided in a group in REDACTED, one time per week for 30 minutes; individual SLT to be provided in REDACTED one time per week for 30 minutes; individual PT to be provided in English, two times per week for 30 minutes; CO to be provided in a group in REDACTED, one time per week for 30 minutes; individual CO to be provided in REDACTED, one time per week for 30 minutes; and PCAT to be provided to Parent one time per week for 60 minutes (Ex. A; Ex. D-7-8). Parent also requested pendency.
PROCEDURAL HISTORY
On September 13, 2023, I was appointed Impartial Hearing Officer (“IHO”) for this case.
Between September 27, 2023 and September 29, 2023, through a series of emails, a representative from the law firm representing Parent and I scheduled the following appearances: October 12, 2023 for a Settlement Conference; October 24, 2023 for a Status Conference; and November 9, 2023 and November 14, 2023 for a Due Process Hearing (“DPH”) (IHO Ex. I). No one from the District responded to those emails (IHO Ex. I).
On October 12, 2023, Parent’s Representative met with an OATH IHO for a Settlement Conference.[2] No one from the District appeared.
On October 24, 2023, Parent’s Representative appeared before me for a Status Conference. No one from the District appeared.
On October 24, 2023, I issued an Order which served to memorialize what transpired at the October 24, 2023 Status Conference and which included information regarding how the DPH would be conducted (IHO Ex. II).
On October 25, 2023, the District filed a Notice of Appearance (“NOA”) for District Representative (IHO Ex. III).
On November 9, 2023, Parent’s Representative and District Representative (“the Parties”) appeared before me for the DPH. At the outset, I conducted a Pendency Hearing (Tr. 6-9).[3] At the DPH, District Representative did not proffer any exhibits (Tr. 9-10). Parent’s Representative proffered Exhibits A through I, which included an affidavit by Parent (Ex. H) and an affidavit by Educational Director of Provider Agency (“Director”) (Ex. I) (Tr. 10-11). District Representative had no objection to any of the exhibits, and I admitted all into evidence (Tr. 11-12). District Representative did not proffer any witness testimony (Tr. 10). The Parties agreed that the operative IESP for this matter was developed on December 17, 2021 (Ex. D), and the services described therein reflect the equitable services to which Student is entitled for the 2023-2024 school year (Tr. 12-13). The Parties further agreed that the DOE did not implement the recommendations contained in the operative IESP (Tr. 13). Additionally, because Provider Agency has been administering the 10 hours of SETSS and the one 30-minute session of OT to Student as set forth on the operative IESP, the Parties agreed that the DOE will directly fund those services by funding a certified or licensed provider of Parent’s choosing at a “reasonable market rate” not to exceed the rate previously paid to the same provider by the DOE’s own Implementation Unit within the last six months upon presentation of a valid contract between Parent and provider and an affidavit attesting that the services billed for were provided (Tr. 13-14). Regarding the services listed on the operative IESP that the District has not provided and for which Parent has been unable to find a provider, the Parties agreed that I would allow the District REDACTED calendar days from the date of this decision to begin providing those services (Tr. 14-16). The Parties agreed that, if at the end of the 45 days the DOE has not begun providing those services, the DOE shall fund a certified or licensed provider of Parent’s choosing at a “reasonable market rate” that the DOE has paid to similar providers within the last six months (Tr. 14-16).
On November 21, 2023, I issued an Order on Pendency (IHO Ex. IV).
Funding for a 10-Month School Year
I find that Student is entitled to funding of SETSS, OT, SLT, PT and CO, and that Parent is entitled to funding of PCAT, during a 10-month school year as recommended by the December 2021 IESP (Ex. D-7-8). 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.[4]
OTHER CONTENTIONS
Parent seeks payment of attorneys’ fees and expenses associated with representation in this matter (Ex. A-4). The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party. Entitlement, if any, to costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008; Application of a Child with a Disability, Appeal No. 06-109. I would be exceeding the scope of my authority by determining that Parent is the prevailing party entitled to attorneys’ fees.
Other than the relief set out in my Order below, and my findings detailed in this section of “Other Contentions,” 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”), 10 periods per week to be administered in REDACTED by a licensed special education teacher of Parent’s choosing, at a “reasonable market rate” not to exceed the rate previously paid to the same provider by the DOE’s own Implementation Unit within the last six months; and it is further
ORDERED THAT the DOE shall pay the provider listed above within 35 days of receipt of upon presentation of a valid contract between Parent and provider and an affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT the DOE shall fund for the 10-month, 36-week 2023-2024 school year individual Occupational Therapy (“OT”), one time per week for 30 minutes to be administered in English by a licensed occupational therapist of Parent’s choosing, at a “reasonable market rate” not to exceed the rate previously paid to the same provider by the DOE’s own Implementation Unit within the last six months; and it is further
ORDERED THAT the DOE shall pay the provider listed above within 35 days of receipt of upon presentation of a valid contract between Parent and provider and an affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT the DOE shall provide to Student for the 10-month, 36-week 2023-2024 school year individual Speech-Language Therapy (“SLT”) to be administered in REDACTED one time per week for 30 minutes. If the DOE has not provided said services to Student within 45 calendar days of the date of this decision, the DOE shall fund for the 10-month, 36-week 2023-2024 school year individual SLT one time per week for 30 minutes to be administered in REDACTED by a licensed speech language pathologist of Parent’s choosing at a “reasonable market rate.” A “reasonable market rate” shall be 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; and it is further
ORDERED THAT the DOE shall pay the provider listed above within 35 days of receipt of upon presentation of a valid contract between Parent and provider and an affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT the DOE shall provide to Student for the 10-month, 36-week 2023-2024 school year group SLT to be administered in REDACTED one time per week for 30 minutes. If the DOE has not provided said services to Student within 45 calendar days of the date of this decision, the DOE shall fund for the 10-month, 36-week 2023-2024 school year group SLT one time per week for 30 minutes to be administered in REDACTED by a licensed speech language pathologist of Parent’s choosing at a “reasonable market rate.” A “reasonable market rate” shall be consistent with rates that have been paid by the Implementation Unit for comparable services for group SLT within six months of the date of this Order; and it is further
ORDERED THAT the DOE shall pay the provider listed above within 35 days of receipt of upon presentation of a valid contract between Parent and provider and an affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT the DOE shall provide to Student for the 10-month, 36-week 2023-2024 school year individual Physical Therapy (“PT”) to be administered in English two times per week for 30 minutes. If the DOE has not provided said services to Student within 45 calendar days of the date of this decision, the DOE shall fund for the 10-month, 36-week 2023-2024 school year individual PT two times per week for 30 minutes to be administered in English by a licensed physical therapist of Parent’s choosing at a “reasonable market rate.” A “reasonable market rate” shall be consistent with rates that have been paid by the Implementation Unit for comparable services for individual PT within six months of the date of this Order; and it is further
ORDERED THAT the DOE shall pay the provider listed above within 35 days of receipt of upon presentation of a valid contract between Parent and provider and an affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT the DOE shall provide to Student for the 10-month, 36-week 2023-2024 school year individual Counseling (“CO”) to be administered in REDACTED one time per week for 30 minutes. If the DOE has not provided said services to Student within 45 calendar days of the date of this decision, the DOE shall fund for the 10-month, 36-week 2023-2024 school year individual CO one time per week for 30 minutes to be administered in REDACTED by a licensed provider of Parent’s choosing at a “reasonable market rate.” A “reasonable market rate” shall be 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; and it is further
ORDERED THAT the DOE shall pay the provider listed above within 35 days of receipt of upon presentation of a valid contract between Parent and provider and an affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT the DOE shall provide to Student for the 10-month, 36-week 2023-2024 school year group CO to be administered in REDACTED one time per week for 30 minutes. If the DOE has not provided said services to Student within 45 calendar days of the date of this decision, the DOE shall fund for the 10-month, 36-week 2023-2024 school year group CO one time per week for 30 minutes to be administered in REDACTED by a licensed provider of Parent’s choosing at a “reasonable market rate.” A “reasonable market rate” shall be 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; and it is further
ORDERED THAT the DOE shall pay the provider listed above within 35 days of receipt of upon presentation of a valid contract between Parent and provider and an affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT the DOE shall provide to Parent for the 10-month, 36-week 2023-2024 school year Parent Counseling and Training (“PCAT”) one time per week for 60 minutes. If the DOE has not provided said services to Parent within 45 calendar days of the date of this decision, the DOE shall fund for the 10-month, 36-week 2023-2024 school year PCAT one time per week for 60 minutes to be administered by a licensed provider of Parent’s choosing at a “reasonable market rate.” A “reasonable market rate” shall be consistent with rates that have been paid by the Implementation Unit for comparable services for PCAT within six months of the date of this Order; and it is further
ORDERED THAT the DOE shall pay the provider listed above within 35 days of receipt of upon presentation of a valid contract between Parent and provider and an affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT if Parent requests assistance finding a provider to administer the above services at any time, the DOE must locate three providers who are ready, willing, and able to begin administering the services to Student according to the terms of this Order. If Parent presents a good faith basis for rejecting the three providers, the DOE must locate two additional providers from which Parent may choose. The DOE shall not be required to identify more than five providers in any given six-month period. Nothing stated here prevents Parent from locating and utilizing a provider of their own choosing.
November 21, 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 Representative |
| REDACTED | District Representative |
| REDACTED | Home District |
| REDACTED | Service District |
| REDACTED | Provider Agency |
| REDACTED | Educational Director of Provider Agency |
APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
| Exhibit | Title of Document | Date | Number of Pages |
|---|---|---|---|
| A | Due Process Complaint | 09/07/2023 | 7 |
| B | Findings of Fact and Decision (“FOFD”) Case Number REDACTED | 06/30/2022 | 16 |
| C | Ten Day Notice (“TDN”) | 08/24/2023 | 2 |
| D | Individualized Education Services Program (“IESP”) | 12/17/2021 | 11 |
| E | Parent’s Notice of Residence to Department of Education (“DOE”) | 05/30/2023 | 2 |
| F | Contract | 08/16/2023 | 2 |
| G | Provider Credentials | 11/06/2023 | 3 |
| H | Affidavit of Parent | 11/06/2023 | 3 |
| I | Affidavit of REDACTED | 11/03/2023 | 4 |
DOE EXHIBITS
NONE
IHO EXHIBITS
| Exhibit | Title of Document | Date | Number of Pages |
|---|---|---|---|
| I | Emails Regarding Scheduling Appearances (Redacted) | 09/27/2023 and 09/29/2023 | 5 |
| II | Memorialization of Status Conference and Order Regarding Rescheduling of Appearances and Expectations for the Hearing (Redacted) | 10/24/2023 | 4 |
| III | District Notice of Appearance | 10/25/2023 | 1 |
| IV | Order on Pendency | 11/21/2023 | 3 |
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] 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.
[3] References to the transcript from the Due Process Hearing conducted on November 9, 2023 are denoted “Tr.”
[4] See https://www.schools.nyc.gov/about-us/news/2023-2024-school-year-calendar (last visited November 11, 2023). See also generally Application of a Child with a Disability, Appeal No. 23-033, FN 10.