New York City Department of Education, Impartial Hearing Decision

CASE NUMBER:611789 NYC: 258820

FINDINGS OF FACT AND DECISION

Case Number: 258820

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

Dates of Hearing: November 2, 2023 and 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 2, 2023

REDACTED, Esq., Parent’s Attorney — Student

REDACTED, Direct Provider — Student

REDACTED, District Representative — DOE

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

REDACTED, Esq., Parent’s Attorney — Student

REDACTED, Administrator 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”), Speech-Language Therapy (”SLT”), Occupational Therapy (“OT”), and Counseling (“CO”) that the Committee on Special Education (“CSE”) had recommended pursuant to Student’s Individualized Education Services Program (“IESP”) dated February 11, 2020 (“the February 2020 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 two times per week for 30 minutes; individual CO to be provided one time per week for 30 minutes; group CO to be provided one time per week for 30 minutes; and individual OT to be provided two times per week for 30 minutes, with SETSS, SLT, and CO to be administered in REDACTED (Ex. A; Ex. B-12). Parent also requested pendency. ^[3]

PROCEDURAL HISTORY

On September 20, 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 2, 2023, the Parties appeared before me for the DPH. The Parties agreed that we would proceed using a modified Burlington/Carter analysis (Tr. #1 6-10).^[6] District Representative stated that “because this is an IESP case, it does not mean that this is a FAPE case,” and explained their understanding of the difference between the entitlement to services pursuant to an Individualized Education Program (“IEP”) versus an IESP (Tr. #1 8-9). When asked for clarification regarding whether Student was entitled to services that the District had recommended pursuant to the IESP in this matter, District Representative stated, “[t]he District takes [the] position that if there is an operative IESP in place, and we were notified of the intent to seek services prior to June 1st, then we will agree that the (audio interference) as reflected in the underlying IESP should be read into the record, and the IHO can make a decision based on that” (Tr. #1 9-10). District Representative proffered Exhibits 1 and 2 (Tr. #1 10-16).^[7] Parent’s Attorney proffered Exhibits A through G, which included affidavits by the person administering SETSS to Student (“Direct Provider”) (Ex. F) and the Administrator of Provider Agency (“Administrator”) (Ex. G) (Tr. #1 16-18). District Representative had no objection to any of the exhibits, and I admitted all into evidence (Tr. #1 18). District Representative did not proffer any witnesses (Tr. #1 18). District Representative waived their opportunity to present an opening statement (Tr. #1 20). Parent’s Attorney presented an opening statement (Tr. #1 20-23). District Representative conceded “Prong One” of the Burlington/Carter standard, specifically confirming that the District did not provide services to the Student, but they “reserve[d] the right to appeal with respect to the specific standard applied” (Tr. #1 18-20). Direct Provider testified through affidavit (Ex. F) as well as through cross-examination (Tr. #1 29-58) and additional questioning (Tr. #1 58-61; 61-62; 62-63). Due to a scheduling conflict, Administrator was unable to testify that day (Tr. #1 65-66). I scheduled the continuation of the hearing for November 28, 2023 with a backup date of November 30, 2023 (Tr. #1 66-67, 70).^[8] I granted the Parties’ request to extend the compliance date (Tr. #1 68-70).

On November 29, 2023, the Parties appeared before me for continuation of the DPH. Administrator testified through affidavit (Ex. G) as well as through cross-examination (Tr. #2 87-98) and additional questioning (Tr. #2 98-100). District Representative presented a closing statement (Tr. #2 102), followed by Parent’s Attorney (Tr. #2 104-107).

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 both witnesses 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. Student is currently in the REDACTED grade (Ex. E-1).

On February 11, 2020, the CSE convened to develop an IESP for Student (Ex. B-1, 15). Pursuant to testing conducted in June of 2017, Student’s Full Scale IQ was assessed at the “Average” range (Ex. B-1). Student was assessed at the “Low Average” range in Verbal Comprehension and in the “Average” range in Visual Spatial Skills and Fluid Reasoning (Ex. B-2). At the time of the CSE meeting, Student was in the REDACTED grade (Ex. B-2). Student’s decoding skills were at a mid-1st grade level and Student’s reading comprehension skills were at a 1st grade level (Ex. B3). Student confused sight words and tenses and struggled to answer “wh” questions (Ex. B-3). Student’s writing skills were determined to be at a 1st grade level as evidenced by the: failure to use capitalization and punctuation; inability to write complete sentences; and difficulty organizing their thoughts prior to writing (Ex. B-3). In Math, Student was functioning on a 3rd grade level (Ex. B-3). Student needed to work on subtraction with regrouping and multiplication tables before they could move on to division and fractions (Ex. B-3).

Additionally, Student presented with deficits in fine and gross motor skills, organizational skills, attention, and visual motor/visual perceptual skills (Ex. B-4). Student also possessed receptive and expressive speech-language deficits (Ex. B-2). Socially, Student lacked self-confidence, avoided tasks deemed “challenging,” and needed to work on building relationships with adults (Ex. B-4).

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 two times per week for 30 minutes; individual CO to be provided one time per week for 30 minutes; group CO to be provided one time per week for 30 minutes; and individual OT to be provided two times per week for 30 minutes, with SETSS, SLT, and CO to be administered in REDACTED (Ex. A; Ex. B-1, 12). The CSE also recommended approximately 36 various tools and modifications to support student (Ex. B-5) and drafted 15 goals (Ex. B-6-11).

The 2023-2024 School Year On May 15, 2023, Parent signed a document provided by the District stating that Parent had placed their child in a non-public school at their own expense and sought special education services for the following school year (“June 1st Notice”) (Ex. 2). However, the District failed to identify available providers to administer any services to Student for the 2023-2024 school year (Ex. A-1). Parent was unable to locate a provider to administer services to Student at the DOE’s “standard rate” (Ex. A-2).

The Provision of Services On September 7, 2023, Parent signed a contract with Provider Agency through which Provider Agency agreed to administer five hours of SETSS to Student at a rate of $250 per hour during the 2023-2024 school year (Ex. C; Ex. G; Tr. #2 87). 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). It further states that Parent “is liable to pay [Provider Agency] the full amount for all services delivered by [Provider Agency] . . . in the event that Parent is unable to secure funding from the DOE or elsewhere” (Ex. C). 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).

Student’s special education services are administered in REDACTED by Direct Provider (Ex. E; Ex. F; Tr. #1 60; Tr. #2 100) Direct Provider holds a Master’s Degree in Special Education and holds a Bilingual Education Extension in REDACTED (Ex. D-2; Tr. #1 40).^[9] Direct Provider has been a certified SETSS provider since approximately 2012 (Tr. #2 39-40) and has worked with Student since the beginning of last year (Tr. #1 29-30). As part of their training to become a special education teacher, Direct Provider was trained to administer formal assessments such as “common core curriculum” assessments (Tr. #1 41-43).

Direct Provider administers Student’s services at Student’s home five days per week for one hour each day (Ex. F-2; Tr. #1 41, 51-52, 54, 60; Tr. #2 88). These sessions are provided individually (Tr. #1 50-51). If the session does not last one hour, the billing is adjusted accordingly (Tr. #2 88). Although Direct Provider is required to make up all sessions missed if Student is absent (Tr. #2 88), Direct Provider only schedules make-up sessions “sometimes” (Tr. #1 50). Direct Provider did not know how many sessions they had administered to Student thus far this school year (Tr. #1 45-46). Direct Provider logs information about each session into a computer program (Tr. #1 46-49, 59).

Direct Provider works with Student to “address [the] goals that were highlighted in [Student’s] IESP” related to reading, writing and math (Ex. F-2; Tr. #1 58). Student is working on multiple goals in Math, Reading, Writing, Language, Social/Emotional Functioning and Interpersonal Relationships (Ex. E). The goals contained in the Progress Report were created based on the IESP

(Tr. #1 63).

Per a Progress Report dated October 26, 2023, Student is “below grade level in reading, literacy, Math, [and] writing” (Ex. E-1; Tr. #1 59). Prior to generating the Report, Direct Provider administered “[q]uarterly,” “common core assessments” to Student (Ex. E; Tr. #1 44-45). Student scored 40% in the Reading and the Writing assessments and 45% in the Math assessment (Ex. E2, 3). Direct Provider documented that Student “has difficulty reading and decoding words” (Ex. E-2) and struggles with grammar, comprehension and fluency (Tr. #1 61). Student reads slowly and does not possess grade level vocabulary skills (Tr. #1 62). Student benefits from modifications such as “[k]inesthetic, [v]isual materials and [g]raphic organizers” (Ex. E-2). In Math, Student has a “hard time learning new math concepts without modifications” (Ex. E-2). Student struggles with division involving “higher numbers” (Tr. #1 62). Modifications include repetition, scaffolding, use of visual materials and positive reinforcement (Ex. E-2). Although Student’s writing skills are “improving,” Student “is facing challenges to keep up to par with [their] peers” (Ex. E-3). In the category of “Language,” Student “is a great learner with ELL disability [and] is struggling to cope with English language” (Ex. E-3). Student also exhibits social/emotional difficulties (Ex. E-1, 4). Student “can frequently shut down when [they] don’t agree to the environment [sic],” and they have “a very hard time communicating with [their] peers and adults”

(Ex. E-4).

Direct Provider has seen “tremendous” progress since working with Student (Ex. F-2; Tr. #1 49-50, 61). For example, Student’s attention span during Reading has increased “significantly” (Ex. E-2) and Student has shown progress “with listening and trying to communicate effectively” (Ex. E-4). Direct Provider was “not sure” if Private School had provided data about Student’s progress (Tr. #1 56-58).

Although Provider Agency charges $250 per hour for SETSS, Direct Provider earns $100 per hour (Tr. #1 35-36; Tr. #2 89, 95). The remaining $150 is allocated to costs such as rent, overhead, software and paying a recruiter to find providers (Tr. #2 91-94, 95-96, 99, 100). Administrator could not itemize how much of the $150 is allocated to each cost (Tr. #2 95-98). The $150 also funds legal fees (Tr. #2 99, 100). ^[10]

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, acknowledging that the District has not provided services to Student for the 2023-2024 school year (Tr. #1 18-20).

I find that Student is entitled to the services listed on the February 2020 IESP. Parent filed June 1st Notice prior to the commencement of this school year (Ex. 2). I further find that the CSE failed to convene, thereby rendering the February 2020 IESP the operative IESP in this matter. The District agrees. When asked for clarification regarding whether Student was entitled to services that the District had recommended pursuant to the February 2020 IESP, District Representative stated, “if there is an operative IESP in place, and we were notified of the intent to seek services prior to June 1st, then we will agree that the (audio interference) as reflected in the underlying IESP should be read into the record, and the IHO can make a decision based on that” (Tr. #1 9-10).

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 February 2020 IESP, I find that Parent was left with no option but to secure all services for Student. I further find that the services Parent selected are appropriate.

Among the considerations in determining whether a private placement selected by a parent is appropriate is whether the placement is likely to produce progress, not regression. See Gagliardo

v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir 2017), quoting Walczak, 142 F.3d at 130. Moreover, No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specifically designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364-365 (2d. Cir 2006). A similar analysis lends itself to a case like this, where a parent selects services for their child after the District fails to implement the current IEP or IESP.

Initially, I note that the District has not raised any allegation that the services are inappropriate (Tr. #2 102).

Further, the appropriateness of the SETSS being administered to Student is “not seriously in dispute in this matter as it is the same type of service recommended on the . . . IESP” See Application of a Student with a Disability, Appeal No. 21-138. The CSE recommended that Student receive five periods of SETSS per week (Ex. B-12). Provider Agency is administering five hours of SETSS per week (Ex. C; Ex. F-2; Ex. G; Tr. #1 41, 51-52, 54, 60; Tr. #2 88). Although in 2020 the CSE recommended that SETSS be provided in a group and Direct Provider administers Student’s services at Student’s home (Ex. F-2; Tr. #1 41, 51-52, 54, 60; Tr. #2 88), based on the totality of the circumstances, I do not find the services inappropriate.

Parent submitted a Progress Report and Direct Provider testified. Student’s needs were documented in the areas of Math, Reading, Writing, Language, Social/Emotional Functioning and Interpersonal Relationships (Ex. E; Tr. #1 44-45, 59, 61, 62). Further, Student is working on multiple goals in each of these areas (Ex. E). These goals were created based on the February 2020 IESP (Tr. #1 58, 63), but I find that they also reflect Student’s current educational needs (Ex. E). I find that Direct Provider is using various tools and modifications to help Student (Ex. E-2). Finally, Student has progressed with the SETSS (Ex. E-2, 4; Ex. F-2; Tr. #1 49-50, 61). 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 $250 per hour or at “a reasonable market rate” consistent with what the District’s Implementation Unit has paid this Provider Agency over the past six months (Tr. #2 107). District Representative asserts that “the rates being sought are presumptively unreasonable” because Direct Provider only receives $100 of the $250 rate charged and because the costs of the other items being funded are not “educational services” (Tr. #2 102). District Representative asked that I examine the rate charged “critically” and reduce it “in light of the fact that some of the costs have nothing to do with what the student is actually entitled to: costs for educational services” (Tr. 102). Upon seeking clarification as to why the District would not consent to a “reasonable market rate,” District Representative explained that the DOE’s Implementation Unit has access to different information than that generated at the DPH and asked that I “take notice of that testimony in coming to a decision with respect to what is a reasonable market rate” (Tr. #2 103-104). For the reasons described below, I am ordering that Provider Agency be paid at a “reasonable market rate” for SETSS. The “reasonable market rate” shall be consistent with rates that have been paid by the Implementation Unit to this Provider Agency for comparable SETSS within six months of the date of this Order and is not to exceed $200 per hour.

Initially, I find that the District failed to meet their burden to set forth a rate at which SETSS should be funded and a reason for that rate. The District merely states that Provider Agency’s rate is “presumptively unreasonable” and asks that I reduce it.

I find that Parent is liable to Provider Agency for the full cost of services. On September 7, 2023, Parent signed a contract with Provider Agency through which Provider Agency agreed to administer five hours of SETSS to Student at a rate of $250 per hour during the 2023-2024 school year (Ex. C; Ex. G; Tr. #2 87). The contract specifically states that Parent “is liable to pay [Provider Agency] the full amount for all services delivered by [Provider Agency] . . . in the event that Parent is unable to secure funding from the DOE or elsewhere” (Ex. C).

I find that a reduction in the rate being charged is not warranted based on Provider’s qualifications. Student’s special education services are administered in REDACTED by Direct Provider (Ex. E; Ex. F; Tr. #1 60; Tr. #2 100). Direct Provider holds a Master’s Degree in Special Education and has been a certified SETSS provider for approximately 11 years (Ex. D-2; Tr. #1 39-40). Additionally, Direct Provider holds a Bilingual Education Extension in REDACTED (Ex. D-2; Tr. #1 40).

I find that a 10% reduction of the rate charged is appropriate based on the explanation of Provider Agency’s costs. Through their affidavit testimony, Administrator only testified that Student requires five hours of SETSS, that the rate is $250 per hour, and that Provider Agency agreed to provide those services for this school year (Ex. G). Administrator failed to provide any justification for their rate (Ex. G). On cross-examination, Administrator testified that Provider Agency charges $250 per hour for SETSS and that Direct Provider earns $100 per hour (Tr. #2 89, 95). The remaining $150 is allocated to costs such as funding a recruiter to find providers, rent, overhead, software and legal fees (Tr. #2 91-94, 95-96, 99, 100). Administrator could not itemize how much of the $150 is allocated to each cost (Tr. #2 95-98). More than that, Administrator did know if the remainder of the rate funds other costs (Tr. #2 99). Based on Administrator’s testimony, it is unclear exactly what the rate funds, and I find that a 10% reduction is warranted.

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

For the above reasons, I am ordering that the District fund SETSS at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit to Provider Agency for comparable SETSS within six months of the date of this Order, but at a rate not to exceed $200 per hour. Funding for Related Services As explained, thus far, the District has failed to provide Student with any services the CSE recommended that Student receive. Further, although not Parent’s responsibility, Parent has been unable to locate providers to administer SLT, OT and CO to Student. Parent’s Attorney is amenable to an Order that would direct the District to fund SLT, OT and CO through Related Services Authorizations (“RSAs”), at the rate charged by the particular provider, or at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services within six months of the date of my Order (Tr. #2 107-108). I decline to order the rate charged by a particular provider in the absence of knowing the actual rate. Accordingly, I am ordering the District to fund SLT, OT and CO either through RSAs or at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services within six months of the date of my Order, with the funding method at Parent’s choosing.

Direct Funding for SETSS and Related Services Parent seeks direct funding to Provider Agency for the SETSS being administered during the 2023-2024 school year (Ex. A-2). As explained above, Parent is legally obligated to pay Provider Agency $250 per hour (Ex. C; Ex. G; Tr. #2 87). 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. I also find that Parent is entitled to direct funding should they contract with a provider for SLT, OT and/or CO.

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 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 SETSS 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 each provider and an affidavit attesting that the services billed for were provided.

Funding for a 10-Month School Year I find that Student is entitled to funding of SETSS, SLT, OT and CO during a 10-month school year as recommended by the February 2020 IESP (Ex. B-12). 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. ^[11]

RE-EVALUATION AND RECONVENING OF THE CSE

Although Parent has not requested a re-evaluation or a reconvening of the CSE, Parent has requested that I order “[s]uch other and further relief deemed appropriate” (Ex. A-2). Pursuant to my equitable authority, I am ordering that, if the District has not conducted a triennial evaluation, it is to conduct one unless Parent waives such evaluation. I am also ordering the CSE to reconvene.

A district is not required to conduct a re-evaluation more than once per year unless the parent and district agree otherwise. However, a district is required to evaluate a student every three years unless the parent and the district otherwise agree. See 8 NYCRR § 200.4(b)(4); 34 CFR § 300.303(b)(1)-(2).

The IESP at issue in this case was drafted over three years ago on February 11, 2020 (Ex. B). At the time, Student was in the REDACTED grade (Ex. B-2). Student is now in their REDACTED year of REDACTED (Ex. E-1). Moreover, testing relied upon at that meeting, such as the Psychoeducational Evaluation, had been conducted in 2017 (Ex. B-2). Further, Student has not received any of the recommended related services of SLT, OT or CO (Ex. B-12). It is unknown what impact, if any, the absence of those services have had on Student’s education. Therefore, I am directing that, if the District has not conducted a re-evaluation of Student, they are to reach out to Parent within 35 days of this Decision to obtain Parent’s consent for a re-evaluation. If Parent consents, I further direct the District to schedule appropriate testing within 35 days of obtaining Parent’s consent.

Finally, I am ordering the CSE to reconvene to determine Student’s continued eligibility for special education and/or related services, and if eligible, to develop an IESP or IEP in accordance with the IDEA and State law. The CSE is to reconvene either within 35 days of receiving the results of the re-evaluation or within 35 days of Parent’s and the District’s agreement not to re-evaluate.

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 $200 per hour; and it is further

ORDERED THAT the DOE shall pay the provider listed above within 35 days of receipt of a valid contract between Parent and provider and an affidavit attesting that the services billed for were provided; and it is further

ORDERED THAT the DOE shall fund for the 10-month, 36-week 2023-2024 school year individual Speech-Language Therapy (“SLT”), two times per week for 30 minutes to be administered in REDACTED by a licensed speech language pathologist of Parent’s choosing. Funding may be either through Related Services Authorizations (“RSAs”) or at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services for individual SLT in REDACTED within six months of the date of this Order. The funding through RSA or direct payment is at Parent’s choosing; 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 Occupational Therapy (“OT”), two times per week for 30 minutes to be administered by a licensed occupational therapist of Parent’s choosing. Funding may be either through RSAs or at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services for individual OT within six months of the date of this Order. The funding through RSA or direct payment is at Parent’s choosing; 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 Counseling (“CO”), one time per week for 30 minutes to be administered in REDACTED by an appropriately licensed provider of Parent’s choosing. Funding may be either through RSAs or at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services for individual CO in REDACTED within six months of the date of this Order. The funding through RSA or direct payment is at Parent’s choosing; 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 Counseling (“CO”), one time per week for 30 minutes to be administered in REDACTED by an appropriately licensed provider of Parent’s choosing. Funding may be either through RSAs or at a “reasonable market rate” consistent with rates that have been paid by the Implementation Unit for comparable services for group CO in REDACTED within six months of the date of this Order. The funding through RSA or direct payment is at Parent’s choosing; and it is further

ORDERED THAT the DOE shall pay the provider listed above within 35 days of receipt of a valid contract between Parent and provider and an affidavit attesting that the services billed for were provided; and it is further

ORDERED THAT if Parent requests assistance finding a provider to administer the above services at any time, the DOE must locate three providers who are ready, willing, and able to begin administering the services to Student according to the terms of this Order. If Parent presents a good faith basis for rejecting the three providers, the DOE must locate two additional providers from which Parent may choose. The DOE shall not be required to identify more than five providers in any given six-month period. Nothing stated here prevents Parent from locating and utilizing a provider of their own choosing; and it is further

ORDERED that, unless the DOE has conducted a re-evaluation of Student since the filing of the Due Process Complaint (“DPC”), the DOE shall seek Parent’s consent for a re-evaluation within 35 days of this Order; and it is further

ORDERED that, if Parent consents to the re-evaluation, the DOE must schedule an appropriate evaluation within 35 days of receiving Parent’s consent to evaluate; and it is further

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

ORDERED that, the CSE shall reconvene within 35 days of receipt of the final report to consider Student’s continued eligibility for special education and/or related services, and if eligible, to develop an IESP or IEP in accordance with the IDEA and State law; and it is further

ORDERED that, if the District and Parent agree not to conduct a re-evaluation, the CSE shall reconvene within 35 days of that agreement to consider Student’s continued eligibility for special education and/or related services, and if eligible, to develop an IESP or IEP in accordance with the IDEA and State law.

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 Direct Provider

REDACTED Administrator, Provider Agency

REDACTED Provider Agency

APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Impartial Hearing Request 09/072023 (5 pages)

B. Individualized Education Services Program (IESP) 02/11/2020 (15 pages)

C. Service Contract 08/23/2023 (1 page)

D. Provider Certificate Undated (2 pages)

E. Progress Report 10/26/2023 (5 pages)

F. Affidavit of REDACTED 10/26/2023 (2 pages)

G. Affidavit of REDACTED 10/25/2023 (1 page)

DOE EXHIBITS

1. Individualized Education Services Program (IESP) 02/11/2020 (17 pages; DOE)

2. Letter of Intent to Parentally Place Student 05/15/2023 (1 page; DOE)

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-12). 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] References to the transcript from the DPH conducted on November 2, 2023 and November 29, 2023 are denoted “Tr. #1” and “Tr. #2,” respectively.

[7] District Representative originally sent the exhibits by email in a format that Parent’s Attorney could not open (Tr. #1 10-11). District Representative re-sent the individual documents during the DPH, but was unable to add Bates numbering to the exhibits (Tr. # 1 11-12). District Representative agreed to add the Bates numbering and a cover sheet and to resend the documents (Tr. # 15-16). District Representative had not done so by the second date of the DPH, and stated they would do so by November 30, 2023 (Tr. #2 79- 80, 109). District Representative failed to send the exhibits. I have added Bates numbering to the exhibits, marking them as “District Exhibit 1” and “District Exhibit 2,” respectively.

[8] On November 20, 2023, by email, I rescheduled the continuation for November 29, 2023 (IHO Ex. III-1- 5).

[9] In their affidavit, Direct Provider mistakenly testified about from where they received their Master’s Degree and was not clear about what certifications they hold in New York State (“NYS”) (Ex. F-1). In addition, Direct Provider did not submit their NYS registration or certification information, and instead provided information that they passed various examinations, including “Students with Disabilities” and “Elementary Assessment of Teaching Skills” (Ex. D-1). Direct Provider clarified the information during live questioning (Tr. #1 40-41).

[10] Administrator testified that they were not in their office and could not access the full list of the costs Provider Agency incurs (Tr. #2 99).

[11] 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.