New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 610921- NYC: 257989

FINDINGS OF FACT AND DECISION

Case Number: 257989

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 29, 2023

Record Close Date: December 21, 2023

Date of Decision: December 26, 2023

Time Sensitive: No

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 29, 2023

REDACTED, Esq., Parent’s Attorney — Student

REDACTED, Educational Supervisor at Provider Agency — 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 not providing Student with Special Education Teacher Support Services (“SETSS”) and Speech-Language Therapy (”SLT”) that the Committee on Special Education (“CSE”) had recommended pursuant to Student’s Individualized Education Services Program (“IESP”) dated May 4, 2021 (“the May 2021 IESP”) (Ex. A; Ex. B).

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 services, to be provided in a group, five hours per week;^[2] individual SLT to be provided one time per week for 30 minutes and group SLT to be provided one time per week for 30 minutes, with SETSS and SLT to be administered in REDACTED (Ex. A; Ex. B-10). Parent also requested pendency. ^[3]

PROCEDURAL HISTORY

On September 18, 2023, I was appointed Impartial Hearing Officer (“IHO”) for this case.

On September 28, 2023, I issued an Order directing the Parties 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, neither Party appeared for the Settlement Conference. ^[4]

On October 25, 2023, Parent’s Attorney and District Representative (“the Parties”) 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 29, 2023, the Parties appeared before me for the DPH.^[6] The Parties agreed that we would proceed using a modified Burlington/Carter analysis (Tr. 6-7).^[7] District Representative did not proffer any exhibits (Tr. 7-8). Parent’s Attorney proffered Exhibits A through D, which included an affidavit by the Educational Director of Provider Agency (“Educational Director”)

(Ex. D) (Tr. 9-11). District Representative had no objection to any of the exhibits, and I admitted all into evidence (Tr. 11). District Representative stated that they would not be raising any argument regarding the provision of June 1st notice (Tr. 12). District Representative waived their opportunity to present an opening statement (Tr. 12). Parent’s Attorney presented an opening statement (Tr. 12-14). District Representative did not proffer any witnesses (Tr. 14). District Representative conceded “Prong One” of the Burlington/Carter standard (Tr. 8-9). Educational Director testified through affidavit (Ex. D) as well as through cross-examination (Tr. 14-37) and additional questioning (Tr. 37-42; 42-43). District Representative presented a closing statement (Tr. 44-45), followed by Parent’s Attorney (Tr. 45-48).

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 the witness credible.

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

On May 4, 2021, the CSE convened to develop an IESP for Student (Ex. B-1, 12). Pursuant to testing, Student’s Full Scale IQ was assessed at the “ Below Average” range (Ex. B-1). Student was assessed at the “Below Average” range in Verbal Comprehension, Similarities, Vocabulary, Visual Spatial Index, Visual Puzzles and Coding (Ex. B-1, 2, 3). Student was assessed in the “Far Below Average” in Fluid Reasoning, Figure Weights and Digital Span (Ex. B-1, 3, 4-5). Student’s reading and math skills were determined to be on a 3rd grade level (Ex. B-2, 3, 4) and their writing skills were determined to be on a 2nd grade level (Ex. B-2, 4). At the time of the CSE meeting, Student was REDACTED years old (Ex. B-2).

Additionally, Student presented with “severe receptive and expressive language delays” and “severe pragmatic deficiencies” (Ex. B-4). Pursuant to a Speech-Language (“S/L”) Evaluation, Student was assessed at “Severely Below Average” in the Word Classes, Understanding Spoken Paragraphs and Pragmatics Profile categories (Ex. B-2, 4). Student had a “very short attention span, especially in class” and was “easily distracted” (Ex. B-5).

The CSE classified Student as a Student with Speech or Language Impairment and recommended: SETSS services, to be provided in a group, five periods per week; individual SLT to be provided one time per week for 30 minutes; and group SLT to be provided one time per week for 30 minutes, with SETSS and SLT to be administered in REDACTED (Ex. A; Ex. B-1, 10). The CSE also recommended various tools and modifications to support student (Ex. B-6) and drafted 10 goals

(Ex. B-7-9).

The Provision of Services On August 23, 2023, Parent signed a contract with Provider Agency through which Provider Agency agreed to administer five hours of SETSS in REDACTED to Student at a rate of $205 per hour and two, 30-minute sessions of SLT in REDACTED at a rate of $275 per hour during the 2023-2024 school year (Ex. C; Ex. D). The contract states that Provider Agency is aware that Parent will retain counsel and seek payment from the DOE by filing a due process complaint (Ex. C-2). It further states that Parent “is liable to pay [Provider Agency] the full amount for all recommended services . . . delivered by [Provider Agency] . . . in the event that [Parent] is unable to secure funding from the DOE or elsewhere” (Ex. C-2). Parent’s responsibility to pay the full amount is to be “triggered by the completion of the case pending in connection with the . . . [DPC]”

(Ex. C-2).

Provider Agency charges $205 per hour for SETSS and $275 per hour for SLT (Tr. 20-21). SETSS sessions are one hour in length and SLT is administered in 30-minute sessions (Tr. 21). If a student is absent, the session is marked as absent and the session is not billed (Tr. 21-22). If the student is late, the billing is prorated (Tr. 22).

The direct SETSS provider is paid $95 of the $205 charged (Tr. 22, 24). The remaining $110 is allocated towards: educational needs; supports; programs; data-based research methods used in the sessions, such as the Fountas and Pinnell and ReadBright programs; and overhead costs (Tr. 22-23). Educational Director did not know the cost of the Fountas and Pinnell and ReadBright programs specifically for Student, but knew in general the programs cost “in the thousands” because each book is $50 to $60 and the Agency purchases assessment tools and CDs “that are very costly” (Tr. 38-40). Overhead costs include salaries for secretaries and supervisors (Tr. 24). Approximately 50% of the $110 is allocated towards supervision costs (Tr. 40-42). Supervisors ensure that everything is “properly done” and that students are progressing (Tr. 25. 40). Supervisors meet with providers and hold team meetings and help with assessments and drafting goals (Tr. 25, 40). “A small portion” of the $110 is allocated toward loans taken out by Provider Agency (Tr. 25-29). Per Educational Director, “[T]he parents are obligated to pay, but . . . [Provider Agency doesn’t] receive the payments from the parents, you know, we have to run after it, and that’s something that we need – – we need to pay our people” (Tr. 27-28). Provider Agency would not need the loans “if all the parents made the payments” (Tr. 28). Educational Director could not itemize how much of the $105 is allocated to each cost because they did not have the information “in front of [them]” (Tr. 30-31).

Of the $275 per hour charged for SLT, Educational Director could not answer how much is paid to the direct S/L provider because they did not have that information “in front of [them]” and did not have access to a computer during their testimony (Tr. 31, 32). They estimated that “most of it” went to the direct S/L provider because the Agency “struggles” to get the “right providers” and it is “quite costly” (Tr. 32). There are overhead costs associated with SLT, “but not as much as the academic [overhead costs]” (Tr. 32). Educational Director estimated the overhead costs to be approximately $50 per student (Tr. 32). Overhead costs include salaries for supervisors and secretaries, games and “different types of modalities” (Tr. 32-34). Educational Supervisor believed that Provider Agency “should be” itemizing their overhead costs, but Educational Supervisor did not have that information (Tr. 34-35).

LEGAL STANDARDS AND FRAMEWORK

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).

Burden of Proof

Under the IDEA and the NYS Education Law, school districts have the burden of proof that a FAPE has been provided to the student, except that where tuition reimbursement is sought, the parent has the burden of proof with respect to the appropriateness of the parent’s chosen educational placement. 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). As explained more fully below, SETSS cases have been treated as a hybrid between unilateral placement theory cases, see e.g., Application of a Student with a Disability, Appeal No. 21-101, and pure compensatory education cases. See, e.g., Foster v. Bd. of Educ. Of the City of Chicago, 611 Fed. App.’x 874, 878-79 (7th Cir. 2015) (compensatory education includes reimbursement for out-of-pocket educational expenses). Accordingly, I first must determine whether the Department met its burden to demonstrate that its offered program was reasonably calculated and implemented to provide this Student with educational benefits.

FAPE on an Equitable Basis District Representative conceded “Prong One” of the Burlington/Carter standard (Tr. 8-9).

I find that Student is entitled to the services listed on the May 2021 IESP. I further find that the District failed to provide the services recommended by the CSE (Tr. 46).

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.

The DOE had the obligation to provide services to Student in conformity with the IESP. See Educ. Law§ 3602-c(2)(a), (b)(l). By not doing so, the DOE failed to provide Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district. More than that, it has been held that the Department may not effectively compel a parent to resort to self-help in obtaining a SETSS provider. See e.g., Application of a Student with a Disability, Appeal No. 21-101. 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” (id.,) and a violation of State law. 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”) (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.

Accordingly, I find that the District denied Student a FAPE on an equitable basis for the 2023-2024 school year.

Appropriateness of Parentally Selected Services At the outset, as I have determined that the District failed to implement the services it recommended on the May 2021 IESP, I find that Parent was left with no option but to secure all services for Student.

Regarding the appropriateness of the services Parent selected, District Representative has not raised any allegation that the services are inappropriate. Further, the appropriateness of the SETSS and SLT being administered to Student is “not seriously in dispute in this matter as [they are] the same type[s] of service[s] recommended on the . . . IESP” See Application of a Student with a Disability, Appeal No. 21-138. Pursuant to the May 2021 IESP, the CSE recommended that Student receive five periods of SETSS per week, one individual 30-minute session of SLT per week and one group 30-minute session of SLT per week (Ex. B-10). Provider Agency is administering five hours of SETSS and two, 30-minute sessions of SLT per week (Ex. C; Ex. D).

Accordingly, I find the parentally selected services appropriate.

REMEDIES

Overview 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. 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).

Moreover, the State Review Office (SRO) has held that when, like here, the parent has not already paid the SETSS provider, and seeks direct funding rather than reimbursement, the “matter is in a subset of more complicated cases in which the financial injury to the parent and the appropriate remedy are less clear.” Application of a Student with a Disability, Appeal No. 20-115 citing E.M.

v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014) (holding that equitable considerations allow for direct payment for tuition where the parents were legally obligated to make payments but had not done so due to a lack of financial resources). Because Parent had to find a provider on their own and because “caselaw supports reimbursement and direct remedies in a unilateral placement case,” the SRO has determined that the question of whether a SETSS provider should be paid directly is somewhat similar to the Burlington/Carter framework, which “forecloses any complete disavowal of the parent’s burden of production and persuasion related to the private, unilateral services obtained by the parent.” Application of a Student with a Disability, Appeal No. 20-115 (finding, inter alia, the analysis "unworkable to the extent that the SETSS services can be construed as a state-approved option”).

In determining whether a provider agency’s rates are reasonable and appropriate under the circumstances, various factors have been found relevant, including: the provider’s explanation of the rate, including its costs and the qualifications of its instructors (Application of a Student with a Disability, Appeal No. 20-140 [while “[g]enerally, teachers at a unilateral placement need not be State-certified . . . there must be objective evidence of special education instruction or supports that are specially designed by . . . providers . . . who have reasonable qualifications that are specifically related to the student’s deficits”]); the value that specialized certification, such as a bilingual extension, adds to instruction (Application of a Student with a Disability, Appeal No. 21-183 [approving compensatory SETSS by a bilingual reading specialist at a rate not to exceed $200 per hour]); and the parent’s efforts to locate a DOE-approved SETSS provider from a list provided by the District to the parent (Application of a Student with a Disability, Appeal No. 21-096). Additionally, one must look to whether the parent directly paid the provider or is contractually obligated to pay the provider in the event the District is not ordered to fund SETSS at the requested rate. See e.g. Application of a Student with a Disability, Appeal No. 21-068 (holding that “it is not appropriate equitable relief . . . to require the district to either reimburse the parent for the costs of SETSS or to directly fund SETSS” where “there is inadequate proof that the parent has expended any funds to pay for SETSS . . . or is legally obligated to do so”). Ultimately, in light of these factors, I must determine whether the requested rate is unreasonable. See e.g., Application of a Student with a Disability, Appeal No. 21-138 (determining that “there is no basis for a finding that the rate of $175 was unreasonable”).

Finally, I will consider when the Parent notified the District of the enhanced rate claim as this establishes the first date upon which the District would have had an opportunity to modify its offered rate for SETSS in light of the Parent’s claims. See id. (finding further that despite the per se reasonableness of the rate, a reduction in rate that had been imposed by the IHO was justified where the parent did not provide a ten-day notice (TDN), per 20 U.S.C. § 1412[a][10][C][iii] and 34 C.F.R. § 300.148[d][1]).

Equitable Considerations, Including Rate Requested and TDN Parent’s Attorney requested that I order funding for SETSS at the contracted rate of $205 per hour and SLT at the contracted rate of $275 per hour or at “a reasonable market rate” for each service (Tr. 47-48). District Representative asserted that the rates being sought are unreasonable” because “the student is entitled to costs for educational services and for specifically defined related services” (Tr. 44). Per District Representative, “All other costs are presumptively unreasonable”

(Tr. 44). Specifically, District Representative contended that Educational Director could not “itemize how much of the overhead charges actually goes to educational services,” “could only speak to a ballpark rate for how much of the supervisory services go to educational services,” and that supervisory costs are not educational or related services (Tr. 44-45). For the reasons described below, I am ordering that Provider Agency be paid at a “reasonable market rate” for SETSS and SLT. The “reasonable market rate” shall be consistent with rates that have been paid by the Implementation Unit to this Provider Agency for comparable SETSS and SLT within six months of the date of this Order and is not to exceed $164 per hour and $220 per hour, respectively.

Initially, I find that the District has failed to meet their burden to set forth a rate at which SETSS or SLT should be funded and a reason for those rates. The District merely stated that Provider Agency’s rates are “presumptively unreasonable” and asked that I reduce them.

I find that Parent is liable to Provider Agency for the full cost of services. On August 23, 2023, Parent signed a contract with Provider Agency through which Provider Agency agreed to administer five hours of SETSS in REDACTED to Student at a rate of $205 per hour and two, 30minute sessions of SLT in REDACTED at a rate of $275 per hour during the 2023-2024 school year (Ex. C; Ex. D). The contract states that Parent “is liable to pay [Provider Agency] the full amount for all recommended services . . . delivered by [Provider Agency] . . . in the event that [Parent] is unable to secure funding from the DOE or elsewhere” (Ex. C-2).

I find that a 5% reduction of the rates being charged is warranted for both the SETSS and SLT based on Provider’s qualifications. Parent has put forth no information about the qualifications for either the direct SETSS provider or the direct SLT provider, and therefore, there is no justification for the enhanced rates being charged on this basis.

I also find that a 5% reduction of each of the rates charged is appropriate based on the explanation of Provider Agency’s costs. Through their affidavit testimony, Educational Director only testified that: Student requires five hours of SETSS and two, 30-minute sessions of SLT; that the rates are $205 and $275 per hour, respectively; and that Provider Agency agreed to provide those services for this school year (Ex. D). Educational Director failed to provide any justification for the rates (Ex. D). On cross-examination, Educational Director testified that although Provider Agency charges $205 per hour for SETSS, the direct SETSS Provider earns $95 per hour (Tr. 22, 24). Educational Director did not know how much of the $275 per hour charged for SLT is paid to the direct SLT provider (Tr. 31, 32). Based on Educational Director’s testimony that “most of it” went to the direct S/L provider (Tr. 32), I find that the direct SLT provider earns no less than $95 per hour.

Overall, I find that Educational Director testified to costs incurred (Tr. 22-43). Based on that testimony, I generally do not find the rates charged unreasonable. However, I do not believe the District should be responsible for paying for the “small portion” of the $110 that is allocated toward loans taken out by Provider Agency (Tr. 25-29). As Educational Director explained, Provider Agency decided to take out loans solely because parents do not honor their obligation to pay Provider Agency (Tr. 27-28). Although it was the District’s failure to provide services to Student that forced this Parent to find services for Student, it is not the District’s fault that Provider Agency has to incur loans because parents do not pay for the services being provided.

Finally, I find that Parent failed to proffer evidence that it provided the District a TDN of their intent to seek SETSS and SLT. Accordingly, I am reducing the contract rate by 10%.

For the above reasons, I am ordering that the District fund SETSS and SLT each at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit to Provider Agency for comparable SETSS and SLT within six months of the date of this Order, but at rates not to exceed $164 and $220 per hour, respectively.

Direct Funding for SETSS and Related Services Parent seeks direct funding to Provider Agency for the SETSS and SLT being administered during the 2023-2024 school year (Ex. A-2; Tr. 14, 47-48). As explained above, Parent is legally obligated to pay Provider Agency $205 per hour for SETSS and $275 per hour for SLT (Ex. C; Ex. D). Further, Parent remains liable to pay the full amount of the services if Parent is unable to secure funding from the DOE or elsewhere (Ex. C). I find that Parent is entitled to the requested form of payment.

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 SETSS and SLT being administered 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. C), 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 May 2021 IESP (Ex. B-10). 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. ^[8]

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”), five hours 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 at a rate not to exceed $164 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 individual Speech-Language Therapy (“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” not to exceed the rate previously paid to the same provider by the DOE’s own Implementation Unit within the last six months and at a rate not to exceed $220 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 group Speech-Language Therapy (“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” not to exceed the rate previously paid to the same provider by the DOE’s own Implementation Unit within the last six months and at a rate not to exceed $220 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 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.

December 26, 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 Home District

REDACTED Service District

REDACTED Private School

REDACTED Educational Supervisor at Provider Agency

REDACTED Provider Agency

APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Impartial Hearing Request 09/07/2023 (5 pages)

B. Individualized Education Services Program (IESP) 05/04/2021 (13 pages)

C. Service Contract 08/23/2023 (2 pages)

D. Affidavit of REDACTED^[9] 10/26/2023 (1 page)

DOE EXHIBITS

None

IHO EXHIBITS

I. 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 (4 pages)

III. Emails Regarding Rescheduling Hearing Various Between 11/13/2023 and 11/20/2023 (10 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 five periods of SETSS per week (Ex. B-10). I deem one period to equal one hour.

[3] The Parties resolved pendency prior to the Due Process Hearing.

[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] At the time of the Status Conference, a different representative had been assigned to this matter and appeared on behalf of the District. District Representative appeared as an “observing District Representative.”

[6] On November 20, 2023, by email, I rescheduled the DPH for November 29, 2023 (IHO Ex. III-1-5). I also granted Parent’s Attorney’s request to extend the compliance date (IHO Ex. III-1).

[7] References to the transcript from the DPH conducted on November 29, 2023 are denoted “Tr.”

[8] See https://www.schools.nyc.gov/about-us/news/2023-2024-school-year-calendar (last visited December 22, 2023). See also generally Application of a Child with a Disability, Appeal No. 23-033, FN 10.

[9] Exhibit D was mistakenly marked as Exhibit E. Parent’s Attorney clarified at the DPH that the document should have been marked as Exhibit D (Tr. 10).