Impartial Hearing Decision

CASE NUMBER: 613981 - NYC: 260926

FINDINGS OF FACT AND DECISION

Student’s Name1: REDACTED (“Student”)

Date of Birth: REDACTED

School District: # REDACTED

Hearing Requested by: REDACTED (“Parents”)

Request Date/Date Complaint Filed: 09/12/2023

Date(s) of Hearing: 11/03/2023, & 11/16/2023

Actual Record Closed Date: 11/30/2023

Date of Decision: 11/30/2023

Date of Distribution if Different than Decision Date: N/A Hearing Officer: Harry A. Christodoulou

1 Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution. Capitalized words not explicitly defined right after the word(s) in brackets are defined in the table in Appendix A – Redaction Identification Page on page 13.

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 03, 2023

For the Student:

REDACTED (hereinafter referred to as “Parents’ representative”)

For the Department of Education:

REDACTED (hereinafter referred to as “District’s representative”)

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 16, 2023

For the Student:

Parents’ representative

REDACTED (hereinafter referred to as “Parent”)

REDACTED (hereinafter referred to as “Parents’ Witness”)

For the Department of Education:

District’s representative

INTRODUCTION AND PROCEDURAL HISTORY

Student is a REDACTED-year-old classified as a student with a Preschool Student with a Disability under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute.

On September 12, 2023, Parents filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA regarding the 2023-2024 school year (“SY”) (Ex. P-A). I was appointed on September 28, 2023 to determine the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1), concerning Student’s special education program.

It is asserted in the DPC that Parents tried to find a regular rate NYC DOE occupational therapist to implement Student’s Individualized Education Program (“IEP”), but were only able to find an occupational therapist (“OT”) to implement the services by a provider who accepts market rate for the services. Parents are seeking an order for market rate for the OT to implement Student’s IEP.

Implicit in these assertions is the premise that the DOE failed implement the services it recommended in Student’s IEP, and in so doing failed to provide a Free Appropriate Public Education (“FAPE”) to Student for the SY at issue. A pendency hearing and the IH took place on November 3, 2023 (T. P7-P13) and November 16, 2023 (T. P19-P60), respectively. Pendency was not contested an order on pendency was issued on November 3, 2023 (Ex. IHO-III).

PARTIES’ POSITIONS AND CASES PRESENTED

District’s representative confirmed at the IH that the DOE was not putting on a case in the sense that the DOE was not calling any witnesses but was submitting four documents for admission to the record and resting on the documents2 (T. P21, & P25). The DOE waived an opening statement and rested its case (T. P27).

One document was a duplicate of a document in Parents’ disclosure and was withdrawn (T. P21) (Ex. DOE-1).

District’s representative asserted in closing, inter alia: that the testimony was that this provider was “sort of the only provider available” and “I think it's a provider that has to work with the school, so I would say that sort of has an impact on the rate”; that a rate of $125.00 would perhaps be more appropriate as an equitable matter, because Parent “was saying that basically she didn't really have much of a choice when it comes to the provider because the other providers weren't really willing to work with the school”; that in terms of appropriateness, there are no formal assessments done, “so it would be tough to measure any sort of meaningful progress”; that there has not been evidence of the need for direct funding versus reimbursement in terms of Parents’ ability to pay; and since the provider testified that there are no make-up sessions, it calls into question whether the services are being received as they should be (T. P55-P57).

Parents’ representative asserted in an opening statement (T. P28-P29), inter alia: there were no providers sent by the DOE and the DOE did not implement the Student’s IEP, Parents found an OT provider to implement the services, but the provider only takes market rate, Parents are seeking an order for market rate, so that the provider can work with Student. Parents, through the Parents’ representative, submitted five additional^[3] documents in support of the Parents’ case at the IH (which are listed below), after confirming with the District’s representative that there were no objections from the DOE to those documents being admitted into evidence (T. P22, P28, & P55). Parents’ representative confirmed that Parents rested their case (T. P55) and made a closing statement (T. P57-P59).

ISSUES IN DISPUTE

The DOE asserts that a FAPE was made available to Student. Accordingly, whether Student was provided a FAPE must be determined, and if not, whether Parents are entitled to an award in their favor (i.e., the appropriate remedy).

JURISDICTION

A decision in this matter is being rendered pursuant to the IDEA4 and its implementing regulations,^[5] and the New York State Education Law6 and its implementing regulations.^[7]

4 20 U.S.C. § 1400 et seq.

6 Educ. Law Art. 89 § 4404 et seq.

LEGAL FRAMEWORK

A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits8.

The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE9. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"10.

The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim.^[11]

The hearing officer “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”^[12]

FINDINGS OF FACT AND DECISION

Denial of a FAPE:

The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”^[13]

The DOE submitted documentary evidence, and rested on the documents. The DOE determined that Student was eligible for Preschool Special Education Services (Ex. DOE-4-1). The DOE developed an IEP pursuant to a CSE 8 Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].

9 20 U.S.C. § 1415[f][3][E][i].

10 Rowley, 458 U.S. at 203. meeting held on March 9, 2023, which has an implementation projected start date of September 2023 and an annual projected review date of March 9, 2024 (Ex. P-D-4).

Prior written notice was provided to Parents (Ex. DOE-2) and related services of occupational therapy and physical therapy were recommended in the Final Notice of Recommendation sent to Parents (Ex. DOE-4-2), which is consistent with the IEP (Ex. P-D-10). Parent signed the Final Notice of Recommendation form consenting to the provision of 10-month preschool services as recommended (Ex. P-E-1).

In limited circumstances a finding in favor of the DOE as to whether a FAPE was made available is appropriate, despite there being no testimony from any witnesses in support of the DOE’s case14. In this case however there are no objections being raised by Parents in the DPC to the recommended program. Parents have asserted that there were no providers sent by the DOE and the DOE did not implement the Student’s IEP. In these circumstances, it would be incumbent on the DOE to lead evidence to establish that it did in fact implement the program that it developed for Student, if that is indeed what occurred.

The DOE asserts that a FAPE was made available to Student but provides no evidence to substantiate that the program was implemented. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"^[15] (my emphasis). Given Parents’ assertions, and without evidence on record that the DOE provided the services it recommended in Student’s IEP, developed to provide Student with a FAPE, I am unable to find that Student did in fact receive a FAPE, and the DOE has therefore failed to discharge its burden to prove otherwise.

I find that no OT was made available by the DOE and Parents were left on her own to find a provider willing to implement the occupational therapy mandate recommended for Student in Student’s IEP.

Appropriate Remedy:

If the services offered by the DOE were inadequate or inappropriate, the services selected by Parents were appropriate, and equitable considerations support Parents’ claim, the DOE will be required to pay for the educational services obtained by Parents for Student.

There is neither a dispute that the services offered by the DOE were inadequate or inappropriate, nor that the services selected by Parents were appropriate. The DOE offered occupational therapy: 2:1; 2x/wk; 30 min.;

See Application of a Student with a Disability, No. 23-090. childcare location selected by parent; beginning 9/2023 (Ex. P-D-10).^[16] Parents are not disputing the services and is seeking an order for those very services, but at an enhanced rate.

The dispute in this case is really about that enhanced rate. For the reasons advanced in District’s representative’s closing statement, the DOE contends the rate should be $125.00.

Parent testified by affidavit (Ex. P-G) as to, inter alia: Student being diagnosed as a preschooler with a disability and the services mandate offered; how she made diligent efforts to secure “a regular rate New York City Depart of Education OT provider for [Student] in accordance with the established guidelines and procedures” of Student’s school; how despite the best efforts of Student’s school and Parent, Parent was unable to obtain “a regular rate New York City Depart of Education OT provider”; how the enhanced rate provider that Parent has found is equipped with the requisite knowledge and experience to provide the services at the market rate of $150.00 per session; and how engaging the enhanced rate provider will ensure that Student receives appropriate support to improve Student’s skills and achieve some of Student’s educational goals, as well as provide Student with access to the agreed upon services required to support Student’s education development effectively.

In cross-examination, Parent testified (T. P31-P37), inter alia, as to: how she tried getting providers but that no one was taking Student; how no other provider would work in the school that Student attends; how only this provider works in the school; how if Parent wants the services in Student’s school, this provider is the only choice Parent has; how Parent wants someone to see Student in the school; how the rate of $150.00 is for a 30-minute session; how Parent has not been making payments but that services have been provided from the beginning of the SY; how the Provider has been providing the services on the school’s premises; and how Parent would say that Student has been making progress with occupational therapy.

Parents’ Witness testified by affidavit (Ex. P-) as to, inter alia:

How she is an independent OT presently working with students who attend the Attending School as well as at her home; how her students include Student; how she is a licensed OT with many years of experience, holds a master’s degree and advanced certificates in occupational therapy17; how she provides all her own materials for her students and individualizes her work to meet the needs of each of her students; how she

17 Parent’s Witness clarified in re-examination that these include courses in core strengthening, individual processing and therapeutic listening, handling, assessment, and auditory defensiveness (T. P53). ensures that her students’ needs are met and that their goals are worked on with integrity; and how her students progress significantly each year.

How in addition to materials purchased for student usage, there is professional development, paid for by independent providers such as herself; how she utilizes these workshops and conferences to achieve success with her student’s needs; due to the scarcity of professionals with these skills and training, it is reasonable to request an enhanced market rate for her services; how the DOE has not given any independent providers raises in more than 10 years and the cost of living has gone up significantly; how providing these materials is no longer possible with the DOE’s independent provider rate of pay; and how she therefore works as an enhanced provider asking for market rate pay.

In cross-examination, Parents’ Witness testified (T. P46-P52), inter alia, as to:

How she has been providing services to Student since the end of September 2023; how, when asked how she was connected to Parent, that she works in the school and that it is possible that the principal or some other parents gave Parent her number; how she works independently, and not for an agency; how she is servicing thirteen children this SY, all services being provided independently by her; how if a student is absent from a scheduled session she does not bill for it; how she does not bill for an entire session is a student is late, dividing it up by how long the student was in the session; how she is familiar with the rate of other OTs, who charge the same as her, and there being others who charge even more; how she plans on providing services for thirty-six weeks until June 30, 2023; how Parent has not paid for any services so far; how she has been a certified OT for eight years and has a license to provide the service; and how she holds a bachelor’s degree in science and master’s degree in occupational therapy.

How she only completes informal assessments of student’s skills, just screening them to see where they are up to and that did so in the beginning of September for Student; how Student was assessed with delays in sensory processing and in fine motor skills, with a weak core and weak upper extremities; how Student has had sixteen sessions and has definitely made progress; how, when asked how she measures progress, she has notes that she keeps every session, seeing where Student is holding, what Student could and could not do, and also speaks to teachers and parents to see if there is any improvement; how sessions occur in the school and how she has a rough schedule, but sometimes it does not work with the class schedule; how she is at the school from 10 a.m. to 2 p.m. but is not employed at the school; and how the school just gives her a room to work in, which she does not pay for.

I do not find that any of the reasons raised by the DOE warrant a reduction of the rate to be awarded.

The record establishes that Parents’ Witness was “the only provider available” to work at the Attending School. It might have been a different story if the school was not allowing other providers to work in the school, but that is not the evidence.

Parents’ Witness is working in the school (not exclusively and also takes cases at home), was available, and has been providing the service to Student. Parents were unable to find another provider despite efforts made, but as Parents’ representative points out (T. P57), the DOE was also unable to find a provider to implement the IEP. The fact that no formal assessments are done, does not render the rate in appropriate. Parents’ Witness testified that informal assessments are done, detailed her assessment of Student, as well as how progress is monitored.

Other than a comment raised for the first time in closing that there has not been evidence of the need for direct funding versus reimbursement in terms of Parents’ ability to pay, Parents’ ability to pay was not placed in dispute. Parent testified and the DOE could have asked Parent directly but chose not to. Since Parent has not actually paid any money for which she must be reimbursed, it has been stated in regard to SETSS cases where that is the case that it falls “in a subset of more complicated cases in which the financial injury to the parent and the appropriate remedy are less clear”. “The Second Circuit Court of Appeals has held that a direct payment remedy is an appropriate form of relief in some circumstances, and that "[i]ndeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework"18.

In the contract Parent entered into with the Agency there is an obligation by Parent to pay for the occupational therapy services provided to Student, which is triggered by the completion of this case19 (Ex. P-F-1). The obligation in terms of the express wording of the contract covers the “Program”, which expressly sets out the Student’s occupational therapy mandate of “Group of 2, 2x30 minutes per week” and confirms that the Agency intends to only provide the service “Occupational Therapy at a rate of $150”.

18 See Application of a Student with a Disability, Appeal No. 20-140 citing E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 [2d Cir. 2014]; also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 430 [S.D.N.Y. 2011] this latter case finding it appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, had not done so due to a lack of financial resources. See also Application of a Student with a Disability, Appeal No. 20-087.

19 For a clearer copy, which shows that the contract was signed by both parties, see (Ex. IHO-II).

There is also case authority in tuition funding cases that it is unnecessary in certain circumstances to establish financial need20, and I similarly see no reason why Parents’ claim should not succeed in these proceedings, especially where it was the DOE’s obligation to provide the mandated services, not the Parents. If the DOE complied with its obligation, Parents would not have needed to incur the financial obligation in the first place, and should not be out-of-pocket until payments are made by the DOE. That would not be equitable.

I do not find, as asserted by District’s representative, the fact that Parents’ Witness testified that there are no make-up sessions, that it calls into question whether the services are being received as they should be. As Parents’ representative rightly points out (T. P58), it was explained that the missed sessions resulted from the holidays, which services it was asserted could not have been provided as the school building is closed during the holidays. There was no evidence that sessions were missed for any other reason.

I therefore find that Parents are entitled to an award for occupational therapy sessions in accordance with Student’s mandate21 at a rate in the circumstances of this case in an amount of $150.00 per session for the 2023-2024 SY, to be paid directly to the Agency22.

Other than the relief set out in my Order below, I find that no basis and/or evidence in the record supports any additional relief.

ORDER

Based upon the above Findings of Fact, it is hereby ORDERED that, the DOE shall directly fund and pay to the provider(s) of Parents’ own choosing, the mandated occupational therapy services (2:1; 2x/wk; 30 min.; childcare location selected by parent; beginning 9/2023 (Ex. P-D-10)), at the enhanced rate of $150.00 per thirty minute session, upon the submission to the DOE’s Implementation Unit of invoices for such services actually rendered (i.e., excluding missed sessions), for the regular 2023-2024 SY (i.e., September, 2023 through June 30, 2024).

SO ORDERED.

20 See Ferreira v. New York City Dep’t of Educ., 2023 WL 2499261 (S.D.N.Y. March 14, 2023), where the Honorable Judge wrote 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”.

21 To wit, 2:1; 2x/wk; 30 min.; childcare location selected by parent; beginning 9/2023 (Ex. P-D-10).

22 I understand this to be Parents’ Witness’ agency through which she provides her services to students, having testified that she works independently and that all services are being provided independently by her.

DATED: November 30, 2023

__H.A.C._(Signed Electronically)___

Impartial Hearing Officer

Harry A. Christodoulou

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

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENTS’ EXHIBITS

A. Due Process Complaint 09/12/2023 3 pages

B. Notice of Appearance 09/04/2023 1 page

C. Confidentiality Release Form 09/05/2023 1 page

D. IEP 03/09/2023 14 pages

E. Final Notice of Recommendation 03/09/2023 1 page

F. Parent Service Contract 09/05/2023 1 page

G. Parent Affidavit 11/06/2023 2 pages

H. Provider Affidavit 11/06/2023 1 page

I. Provider Licenses 02/20/2015 2 pages

DOE’S EXHIBITS

2. 1 Withdrawn - - Prior Written Notice 03/09/2023 2 pages DOE

3. Child Outcome Summary 03/09/2023 8 pages DOE

4. Determination of Eligibility for Preschool Special Education Services Forms 03/09/2023 3 pages DOE

5. Student Packet 02/15/2023 48 pages DOE

IHO’S EXHIBITS

I. Provider Affidavit (clear copy of Ex. P-H – unsigned) 11/06/2023 1 page

PARENT

II. Service Contract (clear copy of Ex. P-F) 09/05/2023 1 page

III. Order on Pendency 11/03/2023 2 pages

Footnotes

[3] Four exhibits had been admitted as part of the pendency hearing (T. P8).

[5] 34 C.F.R. § 300 et seq.

[7] 8 NYCRR § Part 200.

[11] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].

[12] See Doe v. East Lyme, 790 F.3d at 454.

[13] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).

[15] Rowley, 458 U.S. at 203.

[16] The DOE also offered physical therapy of the same mandate, but that service is not at issue in these proceedings.