Impartial Hearing Decision

CASE NUMBER: 258220 – NYC: 611152

FINDINGS OF FACT AND DECISION

Case Number: 258220

Student’s Name: [REDACTED]

School District: N.Y.C. Dept. of Ed.

Impartial Hearing Officer: Cynthia M. Lindblom, Esq.

Date of Filing: September 7, 2023

Hearing Requested by: [REDACTED]

Date of Hearing: October 23, 2023

Record Close Date: December 1, 2023

Date of Decision: December 1, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 23, 2023

For the Parent and Student:

[REDACTED], Parent’s Attorney, [REDACTED]

For the Department of Education:

[REDACTED], Consultant Impartial Hearing Representative

[REDACTED], Agency Attorney - In Absentia

PROCEDURAL HISTORY

On September 7, 2023, Parent,^[1] through counsel, filed a Due Process Complaint (“DPC”) (Ex. A). 2 In the DPC, Parent alleged, among other things, that the DOE failed to provide Student with special education services on an equitable basis for the 2023-2024 school year by failing to provide Student with Speech-Language Therapy (“SLT”), Occupational Therapy (“OT”), and an Other Health Para that were mandated under Student’s Committee on Preschool Special Education (“CPSE”) Individualized Education Program (“IEP”),October 27, 2022 (Ex. A at 2).

As relief, Parent requested an order finding that the DOE failed to provide Student with special education services on an equitable basis for the 2023-2024 10-month^[3] school year, and directing the DOE to fund the following: SLT, 2:1, Yiddish, 2 sessions per week, 30 minutes per session; OT, 2:1, English,^[2] sessions per week, 30 minutes per session; and Other Health Para, 1:1, English, 5 sessions per week, 360 minutes per session (Ex. A at 2-4; Tr. 18-19, 29). ^[4]

Parent also requested pendency (Ex. A at 2; Tr. 20-25). ^[5]

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

A settlement conference with the representatives of the parties was held on October 16, 2023.^[6] I note that the District did not appear at the Settlement Conference.

On October 23, 2023, the parties appeared for a virtual Due Process Hearing (“DPH”). DOE did not offer any exhibits (Tr. 30) and Parent’s attorney offered six exhibits, all of which were admitted into the record without objection (Tr. at 26-29). During the District’s opening statement, the District raised the affirmative defense of failure to provide timely notice by June 1st of 2023 for equitable services, pursuant to Education Law 3602-(c) (Tr. 31, 35). In support of their argument, the District mentioned their brief review of the Parent affidavit as well as the “SESIS events for the student” (Tr. 31). In response, Parent’s attorney argued that the June 1st defense was waived as untimely (Tr. 32), that any reference to SESIS logs is inappropriate as there are no SESIS logs in evidence (Tr. 34), and that the IDEA confers an entitlement to services for this student (Tr. 35-36, 39-41).

After full consideration, I determined that the affirmative defense was untimely and in violation of my previously issued Order, dated September 22, 2023 (IHO Exhibit I; Tr. 36-37). In that Order, I informed the parties that, “any known or knowable affirmative defenses must be articulated via email within 10 calendar days of the date of this Order” (IHO Exhibit I at 4). In addition, the Order states that, “any affirmative defense not articulated within the timelines of this provision shall be considered waived and deemed evidentiarily irrelevant at a hearing on the merits” (IHO Exhibit I at 4). Here, the date by which the District needed to raise any affirmative defenses was October 2, 2023. Having received no notice from the District, this defense is deemed waived and will not be considered in my analysis (Tr. 36-37). ^[7]

Before the proceedings could continue further, the District informed the parties that they had to excuse themselves to appear in another matter (Tr. 41).^[8] When asked if there would be another attorney appearing, the District responded, “I do not know” (Tr. 41). The District was then informed that the hearing would proceed in their absence (Tr. 41-42).

The decision to conduct the hearing with the District in absentia was based upon several factors. First, on September 22, 2023, an email was sent to the parties by the undersigned to inform them about the dates for the Settlement Conference and Due Process Hearings for approximately 28 cases, including Case #258220 (IHO Exhibit I at 1-2).^[9] These cases were part of an “omnibus” group, that being hundreds of Due Process Complaints filed at the beginning of the 2023 – 2024 school year (hereinafter, “omnibus cases”), which were subsequently grouped together in an effort to promote judicial economy. The email was “So Ordered” and provided the parties with firm expectations and deadlines regarding adjournments, motion practice, disclosures, extensions and other relevant information all designed to adjudicate the omnibus cases in a fair and efficient manner (See, IHO Exhibit I; Tr. 6); See also, Application of a Student with a Disability, Appeal No. 22-162.

While I am sympathetic to the challenges associated with the omnibus cases, the District is considered one entity, and therefore responsible for coordinating these matters administratively. A subsequent email was sent to the parties, by the undersigned, dated September 28, 2023, encouraging the District to assign the omnibus cases to one or two attorneys (IHO Exhibit III at 1). There was no response by the District until October 20, 2023, when an email was sent by Agency Attorney informing the parties of their assignment to these omnibus cases (IHO Exhibit II at 2). Given their recent assignment, Agency Attorney asked for an adjournment, which was denied (IHO Exhibit II at 1-2).

Thereafter, another email was sent to the parties, by the undersigned, providing them with the Participant Web Link for the DPH as well as the general schedule of when the cases would be heard (IHO Exhibit IV at 1-2). The parties were also put on notice that, failure to appear, would result in the hearing proceeding forward in their absence (IHO Exhibit IV at 1). The instant case was scheduled for a hearing on October 23, 2023, at 11:00am, with the understanding that the times listed were approximations and subject to change as needed (IHO Exhibit IV at 1).

Although the District initially appeared on October 23, 2023, at 11:00am, it was solely for the purpose of stating their objection to proceeding forward and asking for an adjournment (Tr. 4-5, 10-11, 15). Once the District left the proceedings, without a substitute, Parent’s Attorney made an application to move forward, as their disclosures had been provided and their witnesses were available (Tr. 8-9, 11-12, 42). The application was granted (Tr. 42-43). Prior to the District’s departure, they conceded that the IEP, dated October 27, 2022, was the operative IEP for the 2023 – 2024 school year (Tr. 30-31). Continuing forward, Parent’s Attorney offered six exhibits, all of which were admitted into evidence (Tr. 26-29, 56, 62). Parent’s Attorney then made an Opening Statement and presented the testimony of Parent and Owner.^[10] Parent then rested and asked the undersigned to incorporate their opening statements into their closing statement (Tr. 67-68) where they asked for “reasonable market rate funding for or the health paraprofessional” (Tr. 45). ^[11]

FINDINGS OF FACT

After a full review of the record, I make the following findings of fact and determinations. Unless otherwise noted, none of the facts are contested in this matter.

Student has been identified as a Student with a Disability and is classified as a Preschool Student with a Disability (Ex. A at 1). Student struggles in many areas and requires extra assistance (Ex. F at 1) and further requires a Health Paraprofessional for severe allergies (Ex. E at 1-2).

On October 27, 2022, the Committee on Special Education (“CSE”) convened to consider Student’s eligibility for special education and related services (Ex. A at 2). The CSE developed an IESP recommending the following: SLT, 2:1, Yiddish, 2x30 minutes per week; OT, 2:1, English, 2x30 minutes per week; and Other Health Para, 1:1, English, 5x360 minutes per week (Ex. A at 2). The CSE did not convene in advance of the 2023-2024 school year, and the District has failed to implement their own recommendations, to provide or to fund the related services and Health Paraprofessional for Student, during the 2023-2024 school year (Ex. A at 2). ^[12]

On Monday, August 21, 2023, at 1:34 p.m., Parent, through Parent’s Attorney, sent the District a Ten-Day Notice (“TDN”) dated August 21, 2023 (See, Ex. C). Pursuant to the TDN, Parent “consent[ed] to all services recommended on this [the October 27, 2022] IESP being implemented by the DOE” (Ex. C at 2).^[13] Parent further relayed that they were unable to locate providers at the District’s “standard rate,” and therefore, Parent would implement the IESP on their own and seek reimbursement or direct payment from the District (Ex. C at 2). Parent asked the District to respond if the District had any alternative options (Ex. C at 2). The District failed to respond (Ex. F at 2).

Since the District had not implemented any services for Student, Parent then contacted Service Provider (Ex. F at 2). Service Provider has been providing Student with 25.5 hours per week of Health Paraprofessional services for the 2023-2024 school year (Ex. F at 2). Student’s Health Paraprofessional services are provided at Mainstream School (Ex. E at 2).

Owner is a Paraprofessional provider since 2017 and is the owner of Service Provider (Ex. E at 1). Owner ensures that the needs of every student are met, and that Service Provider offers professional development training to their providers (Ex. E at 1). According to Owner, Service Provider charges $60.00 per hour for Paraprofessional Services (Ex. E at 1). This rate includes one-on-one services, employment taxes, administrative costs, and overhead costs (Ex. E at 1).

Owner is familiar with Student who receives 25.5 hours per week of services from Paraprofessional for the 2023-2024 school year (Ex. E at 1-2; Tr. 63). According to Owner, Student started receiving these services on September 7th due to their severe allergies, and should continue receiving these services for the duration of the 2023 – 2024 school year (Ex. E at 2; Tr. 63).

On May 28, 2023, Parent signed a “Parent Service Contract” stating that Parent will be “liable to pay Service Provider the full amount for all recommended services mentioned above delivered by Service Provider for the 2023-2024 school year in the event that Parent is unable to secure funding from the DOE or elsewhere” (Ex. D at 2). The contract indicated that the following services were being provided: Health Para, 1:1, 25.5 hours per week (Ex. D at 1). The contract further stated that Service Provider intends to provide the following service for the 2023 – 2024 school year: Paraprofessional at the rate of $60 per hour (ex. D at 2). Parent testified that they are aware of their obligation to pay Service Provider in the event that the DOE does not pay for services provided (Ex. F at 2). Parent seeks direct funding as it would pose an “extreme financial hardship” for Parent to pay for the services up front (Ex. F at 2). Parent believes that, without the extra assistance, Student would not be able to maintain their mainstream placement (Ex. F at 1).

LEGAL STANDARDS AND FRAMEWORK

FAPE

The 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 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 § 3602-c(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 NY State 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).

Here, I find that the District failed to provide Student a FAPE on an equitable basis for the 2023-2024 school year. The District, which bears the burden of proof, failed to put forth any evidence or witnesses or to cross-examine Parent’s witnesses. Accordingly, I find that the District failed to provide Student a FAPE for the 2023-2024 school year.

Additionally, I find that the District failed to provide Student a FAPE by failing to convene and develop an IEP or IESP for Student in advance of the 2023-2024 school year. The CSE last drafted an IESP on October 27, 2022, and failed to convene thereafter for the 2023-2024 school year, thereby failing to provide Student a FAPE.

Having no updated IESP, Parent sought the services recommended in the October 27, 2022, IESP. Parent explained that Student struggles in many areas and requires a lot of extra assistance to maintain their “mainstream placement” (Ex. F at 1). Additionally, Parent credibly testified that, despite their best efforts, they were unable to locate a Paraprofessional provider for Student via the DOE directly, contracted agencies, or RSAs (Ex. F at 1). Parent further requested that “DOE continue to fund the other related services for the rest of the school year, as per the IESP dated October 27, 2022” (Ex. F at 2).

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.

A district cannot be absolved of its statutory obligation to implement services for the student simply by being inactive in implementing the mandated services. The DOE had the obligation to provide services to Student in conformity with the IESP. See Educ. Law§ 3602c(2)(a), (b)(l). 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 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.

REMEDIES

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).

Compensatory Education

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 [2d Cir. 2008]. Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate”, and “hearing officers may award ‘educational services . . . to be provided prospectively to compensate for a past deficient program.’” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005). “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.” See Id. at 522. Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.” See Id. at 518.

There are generally two approaches to fashioning a compensatory education award: 1) the “quantitative” approach followed in the Third Circuit, see, e.g., M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 [3d Cir. 1996] [holding that a student denied a FAPE is entitled to compensatory education equal to the period of deprivation], and 2) the “qualitative” approach relied on by the 6th and D.C. Circuits, see, e.g., Reid, 401 F.3d at 518, 524 [requiring a flexible, fact-specific approach in which the award relies “on individual assessments” and is “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place”].

The Second Circuit has not taken a preferred approach, opting instead as a general practice to “leave the mechanics of structuring the compensatory education award to the district court’s sound discretion”, so long as “the relief is [] appropriate in light of the purpose of the Act” Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 [2d Cir. 2016]; see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 [E.D.N.Y 2008] [noting that “the Second Circuit has not articulated a test for determining how [compensatory education] services are calculated”, and awarding compensatory relief equal to the amount of time the student was deprived of services]. In calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP], or encompass analogous educational services appropriate to the Student’s current needs”; however, the ultimate award “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Doe. v. East Lyme, 790 F.3d at 457.

Under New York law, the DOE has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA. Education Law § 4404(1)(c). However, the Parent also has a responsibility to identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the DOE’s failure to provide the Student with a FAPE for the years at issue. See JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (E.D. Pa. 2021), [noting that “[w]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”]; Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 (D.D.C. 2017) [holding that a hearing officer “must solicit the evidence necessary to determine the student’s specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits”] [internal quotes and citation omitted].

Health Paraprofessional

Here, Parent has identified the specific remedy Parent is seeking and has provided documentary evidence and testimony in support of Parent’s request. Student’s IESP, dated October 27, 2022, recommended a Health Paraprofessional for five individual sessions per week, 360 minutes per session, in English (Ex. A at 2). Parent testified that they were unable to locate a paraprofessional provider via the DOE directly, contracted agencies or RSAs (Ex. F at 1). As a result, Parent contacted Service Provider and signed a contract (Ex. F at 2).

Owner credibly testified that Service Provider charges $60.00 per hour for paraprofessional services (Ex. E at 1). This rate includes one-on-one services, employment taxes, administrative costs, and overhead costs (Ex. E at 1). Given the different itemized costs that are attributed to the fee, I find the rate of $60.00 per hour to be reasonable. In addition, I find that Parent is contractually obligated to pay for the paraprofessional services and is aware of their financial obligation, should DOE not have to pay Service Provider for the services provided.

The DOE did not present any evidence or testimony to challenge or rebut the lack of paraprofessional services to Student. Thus, in keeping with Parent’s request, I find that the District should fund the Health Paraprofessional services that were not provided during the ten-month 2023 – 2024 school year, that being five sessions per week, 360 minutes per session, at a rate of $60.00 per hour, for a total of $72,000. 14 These hours are sufficient to compensate Student for the District’s failure to implement the IESP.

Related Services

In addition, I find that Student is entitled to 40 hours of both SLT services and OT services to compensate for the denial of FAPE during the 2023-2024 school year. Student’s IESP, dated October 27, 2022, recommended related services of SLT and OT (Ex. A at 2). According to the DPC, Parent has been unable to locate related service providers for the 2023-2024 school year and the District has failed to implement their own recommendations (Ex. A at 2). The related service of SLT consisted of two individual sessions per week, 30 minutes per session, in Yiddish (Ex. A at 2). The related service of OT consisted of two individual sessions per week, 30 minutes per session, in English (Ex. A at 2).

The DOE did not present any evidence or testimony to challenge or rebut the lack of related services to Student. Therefore, Student is entitled to SLT services that were not provided during the ten-month 2023 – 2024 school year, that being two sessions per week, 30 minutes per session, for a total of 40 hours.^[15] In addition, Student is entitled to OT services that were not provided during the ten-month 2023 – 2024 school year, that being two sessions per week, 30

14 This total was calculated as follows: 360 minutes per session was divided by 60 minutes for a total of 6 hours per day. The total of 6 hours per day was then multiplied by 5 days a week for a total of 30 hours per week. The total of 30 hours per week was then multiplied by a 40-week school year for a total of 1,200 hours. The total of 1,200 hours was then multiplied by the rate of $60 per hour for a total of $72,000. minutes per session, for a total of 40 hours.^[16] These hours are sufficient to compensate Student for the District’s failure to implement the IESP.

PENDENCY

Parent’s Attorney requested pendency as part of their claims for relief in the DPC (Ex. A at 2; Tr. 17). A pendency hearing was held immediately prior to the merits hearing (Tr. 17-25). In terms of evidence, Parent’s Attorney asked that I consider the first three exhibits from their disclosures, that being the DPC (Ex. A), the FOFD, dated July 10, 2023 (Ex. B), and the TDN (Ex.

C) (Tr. 18). Both parties agreed that pendency lied in the FOFD, dated July 10, 2023 (Tr. 20, 23-25) which awarded Student the following: 25.5 hours per week of Health Paraprofessional services; SLT, 2:1/Yiddish, Frequency: 2 times per week, Duration: 30 minutes; OT, 2:1, Frequency: 2 times per week, Duration: 30 minutes (Ex. B at 9). ^[17]

Since the parties were in agreement, an Order on Pendency will be issued for the services that were awarded in the FOFD. ^[18]

OTHER CONTENTIONS

I have reviewed Parents’ remaining contentions and find them to be either 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 the Parents’ remaining claims not discussed herein are dismissed with prejudice

ORDERS

IT IS HEREBY:

ORDERED THAT the New York City Department of Education shall directly fund Speech-Language Therapy, two sessions per week, 30 minutes per session, for Student for the 2023-2024, 10-month, school year, for a total of 40 hours, to be administered by a licensed or certified provider of Parents’ choosing; and it is further

ORDERED THAT the New York City Department of Education shall pay the licensed or certified provider of Parents’ choosing outlined above at a rate which DOE has paid the same or similar providers within the last six months as determined by the New York City Department of Education’s Implementation Unit within thirty-five (35) days of the New York City Department of Education’s receipt of a valid contract between Parents and the chosen provider(s), an affidavit attesting that the services billed for were provided and after submission of invoices for services rendered; and it is further

ORDERED THAT the New York City Department of Education shall directly fund Occupational Therapy Services, two sessions per week, 30 minutes per session, for Student for the 2023-2024, 10-month, school year, for a total of 40 hours, to be administered by a licensed or certified provider of Parents’ choosing; and it is further

ORDERED THAT the New York City Department of Education shall pay the licensed or certified provider of Parents’ choosing outlined above at a rate which DOE has paid the same or similar providers within the last six months as determined by the New York City Department of Education’s Implementation Unit within thirty-five (35) days of the New York City Department of Education’s receipt of a valid contract between Parents and the chosen provider(s), an affidavit attesting that the services billed for were provided and after submission of invoices for services rendered; and it is further

ORDERED THAT the New York City Department of Education shall directly fund a Health Paraprofessional, 1:1, five sessions per week, 360 minutes per session, for Student for the 2023-2024, 10-month, school year, for a total of 1,200 hours, to be administered by Service Provider; and it is further

ORDERED THAT the New York City Department of Education shall pay Service Provider at a rate of $60.00 per hour, for a total not to exceed $72,000.00, within thirty-five (35) days of the New York City Department of Education’s receipt of a valid contract between Parents and Service Provider, an affidavit attesting that the services billed for were provided and after submission of invoices for services rendered.

SO ORDERED.

Dated: December 1, 2023

/s/ Cynthia M. Lindblom

Cynthia M. Lindblom

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of the 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

[REDACTED] Information Term Used In FOFD [REDACTED] Student [REDACTED] Parent [REDACTED] Parent’s Attorney [REDACTED] District or DOE [REDACTED] Agency Attorney [REDACTED] Service Provider [REDACTED] Owner [REDACTED] Paraprofessional [REDACTED] Mainstream School

EVIDENCE

Parent

Exhibit Date Document Pages A 9/7/2023 DPC 6 B 7/10/2023 FOFD 12 C 8/212023 TDN 2 D 5/28/2023 Contract 2 E N/A Affidavit of Provider 2 F N/A Affidavit of Parent 2

DOE

N/A

IHO

Exhibit Date Document Pages I 9/22/2023 Email – Omnibus Settlement Conferences and 7

Hearing Notice II 10/23/2023 Email from District 3 III 9/28/2023 Email – Follow-Up to Omnibus Settlement 8

Conferences and Hearing Notice IV Email – Omnibus Due Process Hearings – 1

10/23/2023; 11:00am – 4:00pm; IHO Cynthia

Lindblom V 12/6/2023 Order on Pendency 2

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.

[2] References to the exhibits from the Due Process Hearing are denoted “Ex.”

[3] There was no evidence that the Student received extended services over the summer, therefore any services awarded will be based upon a 10 month school year.

[4] References to the transcript from the Due Process Hearing are denoted “Tr.”

[5] The parties agreed to Student’s pendency placement (Tr. 23-25). Therefore, I will be issuing an Order on Pendency with this FOFD.

[6] Settlement conferences are conducted by an OATH IHO not assigned to the case whose purpose is to aid the parties in exploring and facilitating a resolution to the DPC. The content of the conferences is 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 and are not part of the record.

[7] Even if the District were allowed to present this affirmative defense at the hearing, I would find that they did not meet their burden. The District failed to present any evidence in support of their argument, other than a reference to a “very brief review” of the Parent’s affidavit and “SESIS events for the student” (Tr. 31). There was no evidence of SESIS logs before me and/or a witness to explain their significance; therefore, I would have ultimately found that the District did not meet their burden with respect to this affirmative defense.

[8] The District originally assigned this case to Agency Attorney who submitted a Notice of Appearance on October 20, 2023, and promptly asked for an adjournment (IHO Exhibit II at 2). The request was denied (IHO Exhibit II at 1). The attorney who initially appeared at the hearing was there to note the District’s objection on proceeding forward and to request an adjournment (Tr. 4-5, 10-11, 15).

[9] During the start of the proceedings, one case was administratively removed, leaving a total of 27 cases scheduled for hearings (Tr. 5-6).

[10] Parent’s live testimony was solely to affirm the truthfulness and accuracy of the contents of their affidavit (Tr. 54- 56). There was no additional examination by Parent’s Attorney or the undersigned. Owner appeared briefly to affirm the truthfulness and accuracy of the contents of their affidavit (Tr. 61-62) and to answer the undersigned’s inquiries (Tr. 62-65).

[11] Although not specifically stated in their opening, Parent also requested a bank of hours for individual SLT “2x30 minutes per week” and individual OT “2x30 minutes per week” (Tr. 43-45).

[12] I note that, even though the DPC makes a reference to SETSS services, there were no SETSS services recommended in the October 27, 2022, IESP (Ex. A at 2).

[13] I note that the TDN makes a reference to a recommendation of SETSS, however I find there was no such recommendation made for this student (Ex. C at 2).

[15] This total was calculated based upon one hour of services per week for a 40-week school year period.

[16] This total was calculated based upon one hour of services per week for a 40-week school year period.

[17] There appeared to be a discrepancy between the total amount of time awarded under the FOFD for the Health Paraprofessional versus the recommended amount of time listed in the IESP, dated October 27, 2022 (Tr. 20-25). However, I note that for pendency purposes, the District submitted a pendency form which reflected the same amount of time that was listed in the FOFD (Ex. A at 4).

[18] The Order on Pendency will be made IHO Exhibit V.