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FINDINGS OF FACT AND DECISION
Case Number: 257455
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed.,
Impartial Hearing Officer: Kevin T. McGrath, Esq.
Date of Filing: 09/07/2023
Hearing Requested by: REDACTED (Parent)
Dates of Hearing: 11/13/2023
Record Close Date: 11/16/2023
Date of Decision: 11/16/2023
1 Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution. Findings of Facts and Decision i
Names and Titles of Persons Who Appeared on November 13, 2023
For the Student:
REDACTED, Esq., Law Office of REDACTED
REDACTED, Program Director - witness
REDACTED, Parent - witness (via affidavit)
For the Department of Education:
REDACTED, Consultant Impartial Hearing Representative
BACKGROUND
On September 7, 2023, Parent filed a Due Process Complaint (DPC) alleging that the Department of Education (DOE) failed to implement an individualized education service plan (IESP) for the 2023-2024 school year. Parent seeks an order directing the DOE to implement the IESP or allow Parent to select providers at a higher rate for services than previously offered by the DOE.
Based upon the record, I find: 1) that the DOE failed to implement the IESP, denying Student a free appropriate public education (FAPE) for the 2023-2024 school year; and 2) that the relief Parent seeks is appropriate.
PROCEDURAL HISTORY
I was appointed the Impartial Hearing Officer (IHO) on September 15, 2023. The DOE did not hold a resolution meeting or serve a due process response. A Prehearing Conference was held on October 10, 2023.
A merits hearing was held on November 13, 2023. During the due process hearing, the DOE
[2] offered one document, which was accepted into evidence without any objection. The DOE did not seek to introduce witness testimony. Parent’s Representative presented nine (9) exhibits, which were admitted into evidence, partially over the objection of the DOE.[3] Parent provided testimony, via an affidavit, and the DOE declined to cross-examine Parent. In addition, Program Coordinator appeared at the hearing, providing both affidavit and live testimony, and the witness was cross-examined. The parties then presented closing statements. No orders of extension were issued.
FINDINGS OF FACT AND DECISION
After thoroughly reviewing the record, I make the following findings of fact and determinations.
During an impartial hearing, the burden of proof for producing evidence and persuasion is on [4] the school district, except for circumstances not applicable here.
The IDEA provides that children with disabilities are entitled to a FAPE. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in [6] conformity with a comprehensive written Individualized Education Program (IEP). Under State law, 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 [7] made. In response, the district must review the request and "develop an [IESP] for the student based
[8] on the student's individual needs in the same manner and with the same contents as an [IEP]".
[9] Further, the location district is responsible for implementing the IESP services. 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 [10] or nonpublic schools located within the school district.”
In the instant matter, Student and Parent resided in New York City, and Student attended a [11] private school in New York City during the 2023-2024 school year. The DOE agreed that Student [12] is entitled to services pursuant to the IESP, dated February 22, 2023. The IESP provides Student with Special Education Teacher Support Services (SETSS) (five periods per week); Speech-Language Therapy (two 30-minute sessions per week in an individual setting); Occupational Therapy (two 30-minute sessions per week in an individual setting); and Physical therapy (two 30-minutes sessions per week in an individual setting). Parent did not contest the IESP’s recommended [13] program. Parent submitted a “Ten-day notice” to the DOE detailing their inability to supply a [14] service provider and Parent’s intent to obtain the services stated in the IESP independently. It is undisputed that the DOE failed to implement the services outlined in the IESP or that a SETSS provider was not assigned for Student.
Parent has located a provider to implement the SETSS services contained in the IESP at an [15] enhanced rate. Parent contracted with SETSS Provider for these services for the 2023-2024 school [16] year, beginning in September 2023. SETSS Instructor, an NYS-certified teacher for students with [17] disabilities, was hired by SETSS Provider to provide SETSS instruction to Student. The services [18] are provided at Student’s private school, and Student shows academic progress for this school year. The DOE does not contest or demonstrate that they could implement the SETSS services. The DOE [19] did not challenge the rate charged by SETSS Provider.
Parent has not been able to retain providers for speech-language, occupational, and physical therapy at the rate offered by the DOE. The DOE does not demonstrate they located a provider for these three services or that the services in the IESP were implemented. The DOE failed to present evidence of an acceptable market rate for these services.
The DOE’s inability to provide the services detailed in the IESP was improper and unlawful, as it has been held that the DOE may not effectively compel a parent to resort to self-help in obtaining a SETSS provider.[20] Such a “de facto delegation from the district to the parent of the obligation to find a SETSS provider . . . at an acceptable rate is manifestly unreasonable”[21] and a violation of State law.[22] Therefore, as implementation was necessary, 23 I find that the DOE’s failure to assign Student SETSS, speech-language, occupational, or physical therapy providers constituted a denial of FAPE on an equitable basis,[24] and an award is therefore warranted.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY
ORDERED THAT:
1) The New York City Department of Education shall pay SETSS Provider, or any other provider selected by Parent, for the administration of SETSS (to be administered by a NYS certified special education teacher), for five sessions per week, for the 10-month 2023-2024 school year, less any amounts paid under pendency, at a rate of $195 per hour.
a. Payment for the services is to be made within thirty (35) days of a submission to the DOE of any invoices for such services, together with an affidavit attached to each invoice attesting to the provision of the SETSS administered to Student for the period covered by each invoice, up to the end of the 10-month 2022-2023 school year; and
2) The New York City Department of Education shall pay for the provision of speech-language therapy by a provider of Parent’s choosing (who is licensed by NYS to provide said services), twice per week in 30-minute sessions in an individual setting for the 10-month 2023-2024 school year, less any amounts paid under pendency.
a. Payment for the services shall be at a rate equal to any agreed-upon rate and, if there is no agreed-upon rate, then at a rate consistent with rates that the Department has paid for such services with a similarly qualified provider in the last six months.
b. Payment shall be made within thirty-five (35) days of a submission to the DOE of any invoices for such services, together with an affidavit attached to each invoice attesting to the provision of speech-language therapy administered to Student for the period covered by each invoice, up to the end of the 2023-2024 school year.
c. To the extent Student has not received some or all of the speech-language therapy as ordered herein, the DOE will provide such speech-language therapy as a bank of hours (not to exceed a total of 40 hours), equal to what Student did not receive, and such bank shall be available for Student’s use for 18 months of the date of this order, to be used with a provider of Parent’s choice, and paid at a rate consistent with the rate described herein; and
3) The DOE shall pay for the provision of occupational therapy by a provider of Parent’s choosing (who is licensed by NYS to provide said services), in English, twice per week for 30-minute sessions in an individual setting for the 10-month 2023-2024 school year, less any amounts paid under pendency.
a. Payment for the services shall be at a rate equal to any agreed-upon rate and, if there is no agreed-upon rate, then at a rate consistent with rates that the DOE has paid for such services with a similarly qualified provider in the last six months.
23 See 8 NYCRR 200.4(e)(7); see also Application of a Child with a Disability, Appeal No. 08-087. b. Payment shall be made within thirty-five (35) days of a submission to the DOE of any invoices for such services, together with an affidavit attached to each invoice attesting to the provision of occupational therapy administered to Student for the period covered by each invoice, up to the end of the 2023-2024 school year.
c. To the extent Student has not received some or all of the occupational therapy as ordered herein, the DOE will provide such occupational therapy as a bank of hours (not to exceed a total of 40 hours), equal to what Student did not receive, and such bank shall be available for Student’s use for 18 months of the date of this order, to be used with a provider of Parent’s choice, and paid at a rate consistent with the rate described herein; and
4) The DOE shall pay for the provision of physical therapy by a provider of Parent’s choosing (who is licensed by NYS to provide said services), in English, twice per week in 30-minute sessions in an individual setting for the 10-month 2023-2024 school year, less any amounts paid under pendency.
a. Payment for the services shall be at a rate equal to any agreed-upon rate and, if there is no agreed-upon rate, then at a rate consistent with rates that the DOE has paid for such services with a similarly qualified provider in the last six months.
b. Payment shall be made within thirty-five (35) days of a submission to the DOE of any invoices for such services, together with an affidavit attached to each invoice attesting to the provision of physical therapy administered to Student for the period covered by each invoice, up to the end of the 2023-2024 school year.
c. To the extent Student has not received some or all of the physical therapy as ordered herein, the DOE will provide such physical therapy as a bank of hours (not to exceed a total of 40 hours), equal to what Student did not receive, and such bank shall be available for Student’s use for 18 months of the date of this order, to be used with a provider of Parent’s choice, and paid at a rate consistent with the rate described herein.
SO ORDERED.
Kevin T. McGrath Dated: November 16, 2023 Kevin T. McGrath, Esq. (signed electronically) Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the Parents 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
APPENDIX A – REDACTION IDENTIFICATION PAGE
Redacted Information Term Used In FOFD
REDACTED Student
REDACTED Date of Birth
REDACTED Student’s I.D. Number (OSIS)
REDACTED Parent
REDACTED DOE Representative
REDACTED Parents Representative
REDACTED SETSS Provider
REDACTED Program Coordinator
REDACTED SETSS Instructor
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
DISTRICT EXHIBITS
1. DOE IESP 02/22/2023 10 pages District
PARENTS EXHIBITS
A. DPC 09/07/2023 6 pages
B. IEPS 04/06/2021 10 pages
C. TDN 08/21/2023 2 pages
D. Affidavit of Parent 11/07/2023 2 pages
E. Affidavit of REDACTED 11/06/2023 3 pages
F. Contract 06/06/2023 1 page
G. Credentials Undated 1 page
H. Progress Report 11/09/2023 4 pages
I. Notice of Residence 05/30/2023 2 pages
IHO EXHIBITS
Footnotes
[2] See Appendix B.
[3] See Appendix B. Six documents were admitted into evidence without any objection. Over the DOE’s objection, exhibits B, H, and I were accepted into evidence. See the Tr. 5-12 for the basis for admission of the exhibits.
[4] Educ. Law § 4404(1)(c); see R.E. v. New York City Dept. of Educ., 694 F.3d 167, 184-85 (2d Cir 2012); C.F. v. New York City Dept of Educ., 746 F.3d 68, 76 (2d Cir. 2014).
[5] 20 U.S.C. § 1400 (d)(1)(A).
[6] 20 U.S.C. § 1401(9).
[7] Educ. Law § 3602-c (2).
[8] Educ. Law § 3602-c (2)(b)(l).
[9] Educ. Law § 3602-c (2)(a).
[10] Educ. Law § 3602-c (2)(b)(1).
[11] Ex. D at ¶2.
[12] Tr. 19.
[13] Ex D at ¶2-5.
[14] Ex. C.
[15] Ex. D at ¶6-8.
[16] Ex. E at ¶11.
[17] Ex. E at ¶12.
[18] Ex. E at ¶17.
[19] See generally Transcript of November 13, 2023 hearing.
[20] See, e.g., Application of a Student with a Disability, Appeal No. 21-068.
[21] Id.
[22] See Application of a Student with a Disability, Appeal No. 20-115 (“core instruction provided by a school district must be performed either by teachers who are employees of the district or pursuant to a contract for special education services that a district is specifically authorized by law to enter into,” id.) (internal citation omitted, emphasis added); see also Application of a Student with a Disability, Appeal No. 20-087; and Application of a Student with a Disability, Appeal No. 20-140. In other words, if the DOE is not directly performing core instruction, it should not then be passing the obligation to contract out that instruction onto Parent.
[24] See Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
[279] and model forms are available at http://www.sro.nysed.gov.