New York City Department of Education, Impartial Hearing Decision

Case Number: 616901 – NYC: 263715

FINDINGS OF FACT AND DECISION

Case Number: 263715

Student’s Name: REDACTED

Home District: REDACTED

Service District: REDACTED

Impartial Hearing Officer: Ginger James

Date of Filing: October 11, 2023

Hearing Requested by: Parent

Date of Hearing: December 7, 2023

Record Close Date: December 25, 2023

Date of Decision: December 29, 2023

Time Sensitive: No

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 7, 2023

REDACTED, Esq., Parent’s Attorney — Student

No appearance — DOE

BACKGROUND AND POSITIONS OF THE PARTIES

Parent,^[1] through counsel, filed a Due Process Complaint (“DPC”) on October 11, 2023 (Ex. A).

In the DPC, Parent alleges, among other things, 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. In brief, on January 5, 2023, the Committee on Special Education (“CSE”) convened and drafted an Individualized Education Services Program (“IESP) that recommended Student receive five periods per week of Special Education Teacher Support Services (“SETSS”) (“the January 2023 IESP”) (Ex. A-1). Parent and Student’s teachers were concerned about Student’s academic delays, and Parent requested that the CSE increase Student’s services (Ex. A-1). On September 27, 2023, the CSE reconvened and recommended that Student receive seven periods of SETSS per week in addition to Speech-Language Therapy (“SLT”) and Counseling (“CO”) (“the September 2023” IESP) (Ex. A-1; Ex. B).^[2] Parent alleges that the DOE failed to provide any services pursuant to either IESP (Ex. A-1-2)

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, to be provided in a group, seven hours per week;^[3] individual SLT to be provided two times per week for 30 minutes; and individual CO to be provided one time per week for 30 minutes (Ex. A; Ex. B-13).^[4] Parent also requested pendency.

PROCEDURAL HISTORY

On October 12, 2023, I was appointed Impartial Hearing Officer (“IHO”) for this case.

Between October 25, 2023 and October 26, 2023, by email, Parent’s Attorney and I scheduled the following appearances: November 17, 2023 for a Settlement Conference, November 28, 2023 for a Status Conference, and December 7, 2023 for a Due Process Hearing (“DPH”) (IHO Ex. I). No one from the District responded to those emails (IHO Ex. I).

On November 17, 2023, Parent’s Attorney met with an Office of Administrative Trials and Hearings (“OATH”) IHO for a Settlement Conference.^[5] No one from the District appeared.

On November 28, 2023, Parent’s Attorney and a District Representative (“the Parties”) appeared before me for a Status Conference.

On November 28, 2023, I issued an Order which served to memorialize what transpired at the November 28, 2023 Status Conference and which included updated information regarding how the DPH would be conducted (IHO Ex. II).

On December 7, 2023, by email at approximately 9:20 a.m., and approximately 10 minutes prior to the scheduled appearance, District Representative stated that they were unable to appear for the DPH and requested an adjournment (IHO Ex. III-7). District Representative informed me that they had not been well during the week and although they were “hoping to have recovered by today,” they had not (IHO Ex. III-7). Parent’s Attorney objected to an adjournment (IHO Ex. III6). District Representative was unable to find coverage (IHO Exhibit III-4-6). At approximately 8:58 a.m., by email, I proposed that, “[i]n light of the fact that [the District had] not provided disclosure nor proffered witnesses,” I was inclined to proceed (IHO Ex. III-3). In response to my offer that each Party could submit a written closing statement, District Representative stated, “I believe that is a fair proposal and appreciate the opportunity to provide a written closing statement” (IHO Ex. III-2, 3). Parent’s Attorney wished to make an oral closing statement, and I directed that written closings were due on December 15, 2023 (IHO Ex. III-1-2).

On December 7, 2023, Parent’s Attorney appeared before me for the DPH. After setting forth the procedural history in this matter (Tr. 3-9) 6, I conducted a Pendency Hearing (Tr. 9-11). For the DPH, District Representative had not proffered any exhibits or witness testimony (Tr. ^[6], 11; IHO Ex. III-3). Parent’s Attorney proffered Exhibits A through G, which included the proposed written testimony of the Educational Director of the Provider Agency (“Director”) (Ex. D) (Tr. 11-13). Director appeared before me and attested to its contents (Tr. 15-17). I admitted all into evidence (Tr. 18). Parent’s Attorney clarified that Student was receiving related services as recommended on the September 2023 IESP, and therefore, Parent was only seeking funding for SETSS (Tr. 14-15). The Parties had agreed that we would proceed using a modified Burlington/Carter analysis

(Tr. 18-19; IHO Ex. II-1-2). Parent’s Attorney presented a closing statement (Tr. 20-22). In their closing statement, Parent’s Attorney requested that I order funding at the contracted rate of $195 per hour or at “a reasonable market rate” consistent with what the District’s Implementation Unit had paid this Provider Agency over the prior year (Tr. 20-22).

On December 7, 2023, I issued an Order on Pendency (IHO Ex. IV).

On December 11, 2023, the transcript was emailed to the Parties (IHO Ex. V).

As of the date of this FOFD, District Representative has not submitted a Closing Brief.

FINDINGS OF FACT

After a full review of the record generated at the hearing, I make the following findings of fact and determinations. Unless otherwise noted, I found the witness credible.

Student and Parent reside in New York City, and Student is attending Private School for the 2023-2024 school year (Ex. A). Private School is located within the geographic boundaries of the DOE. Student is in the 3rd grade (Ex. G-1).

On May 31, 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. C).

On September 27, 2023, the CSE convened to develop an IESP for Student (Ex. B-1, 16). Student’s Full Scale IQ was assessed at the “Extremely Low” range (Ex. B-2). Student was also assessed at the “Extremely Low” range in Fluid Reasoning (Ex. B-1) and was assessed at the “Borderline” range in Working Memory and Visual Spatial skills (Ex. B-2). Student assessments in Reading, Writing and Math revealed scores in the “Extremely Low,” “Very Low” and “Low Average” ranges (Ex. B-2). Student struggled to read on grade level and had difficulty in Math and ELA (Ex. B-5). Student’s receptive and expressive language skills were each determined to be in the “Borderline/Marginal/At-Risk” range (Ex. B-3), and because Student struggled to maintain an “appropriate rate of speech,” they were sometimes unintelligible to others (Ex. B-4). The CSE classified Student as a Student with a Learning Disability and recommended: SETSS to be provided, in a group, seven periods per week; individual SLT to be provided two times per week for 30 minutes; and individual CO to be provided one time per week for 30 minutes (Ex. A; Ex. B-1, 13). The IESP was to be implemented on October 16, 2023 (Ex. B-1).

The District failed to provide the SETSS recommended on the September 2023 IESP, and Parent was unable to secure providers to administer services at the DOE’s “standard rate” (Ex. A-1-2). The Provision of Services On September 1, 2023, Parent signed a contract with Provider Agency through which Provider Agency agreed to administer seven periods of SETSS to Student at a rate of $195 per hour during the 2023-2024 school year (Ex. D).^[7] The contract states that, “Parent will retain counsel and file a due process complaint in attempts to obtain funding for the Program” (Ex. E). The contract further states that Parent “is liable to pay the provider the full amount for all services delivered by the provider in the event that parent is unable to secure funding from the DOE or elsewhere” (Ex. E). 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. E).

SETSS are being administered by Direct Provider (Ex. G). Direct Provider is certified to teach Students with Disabilities from Birth through Grade 2 (Ex. F-1). On September 25, 2023, Direct Provider applied for certification to teach Students with Disabilities in all grades (Ex. F-2).

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 I find that the District failed to meet its burden to prove that it offered Student a FAPE on an equitable basis for the 2023-2024 school year.

District Representative elected not to proffer any exhibits or witness testimony (Tr. 6, 11; IHO Ex. III-3). Further, despite being given an opportunity to present a Closing Brief, they declined to do so (IHO Ex. III-1-2).

Moreover, I find that the District’s failure to implement the SETSS it recommended deprived Student of a FAPE on an equitable basis for the 2023-2024 school year.

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, although the District did not concede that it denied Student a FAPE on an equitable basis for the 2023-2024 school year, I am constrained to find that the District failed to provide such.

Appropriateness of Parentally Selected Services At the outset, as I have determined that the District failed to implement the services it recommended in the September 2023 IESP, I find that Parent was left with no option but to secure all services for Student.

The District has not raised any allegation that the services are inappropriate. 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. Pursuant to the September 2023 IESP, the CSE recommended that Student receive seven periods of SETSS per week (Ex. B-13). Provider Agency is administering seven hours of SETSS per week (Ex. D-1; Ex. E). ^[8]

Nonetheless, based on the Progress Report, I find that the services being administered are appropriate. Direct Provider is addressing issues documented in the September 2023 IESP (compare Ex. B with Ex. G). Direct Provider identified Student’s areas of needs in reading, Writing, Math and Language, as well in the Social/Behavioral domain (Ex. G-1-2). Direct Provider also explained the different tools and supports they provide to Student (Ex. G-1-2).

Finally, Direct Provider explained why they believed Student required an increase in the hours of SETSS (Ex. G-2).

Accordingly, I find that the services Parent selected are 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 Regarding rates sought, in the DPC, Parent’s Attorney requested that the District be ordered to fund SETSS at an “enhanced rate” (Ex. A-2). At the DPH, Parent’s Attorney requested that I order funding at the contracted rate of $195 per hour or at “a reasonable market rate” consistent with what the District’s Implementation Unit has paid this Provider Agency over the prior year (Tr. 20-22). For the reasons described below, I am ordering that the provider 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 for comparable SETSS within twelve months of the date of this Order and is not to exceed $166 per hour.

At the outset, I find that the District has not challenged the requested rates. They have not put forth any evidence to prove that Provider Agency’s rates are unreasonable or that those rates are not comparable to other rates in the market for SETSS. District Representative also declined to submit a written closing statement to explain their position on any issue in this matter.

However, in reviewing the Burlington/Carter factors, I do believe certain reductions are warranted. First, Direct Provider is not certified to teach Student’s grade level. Direct Provider is certified to teach Students with Disabilities from Birth through Grade 2 (Ex. F-1). Student is in the 3rd grade (Ex. G-1). Although on September 25, 2023, Direct Provider applied for certification to teach Students with Disabilities in all grades (Ex. F-2), they are not so licensed. Therefore, I am reducing the maximum amount to be funded by 5%. Additionally, Parent failed to proffer evidence that it provided the District a TDN of their intent to seek SETSS from an independent provider. For that reason, I am reducing the maximum amount to be funded by 10%.

Accordingly, 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 twelve months of the date of this Order, but at a rate not to exceed $166 per hour.

Finally, I find that Student is only entitled to funding for seven hours of SETTS per week as of October 16, 2023, the date the new IESP was to be implemented (Ex. B-1). I find that Student is entitled to funding for five hours per week from the period of September 7, 2023 through October 15, 2023.

I am troubled by the fact that the contract that was signed on September 1, 2023 reflects that the Parties agreed that Provider Agency would administer seven hours per week of SETSS at $195 per hour, but at the time, the CSE had not recommended that Student receive that frequency of service. Director testified that Student “requires” the seven hours based on the September 2023 IESP (Ex. D). However, they also testified that Provider Agency “has agreed to provide 7 hours a week of [SETSS] for the entire 2023-2024 school year” (Ex. D). Per Parent’s DPC,^[9] the January 2023 IESP recommended five periods per week of SETSS (Ex. A-1). Further, in the Progress Report dated September 25, 2023, Direct Provider recommended that Student “receive an increase in SETSS hours from 5 to 8 hours a week” (Ex. G-2). It was not until September 27, 2023, that the CSE reconvened and recommended that Student receive seven periods of SETSS (Ex. A-1; Ex. B). Accordingly, I am awarding funding for seven hours of SETSS from October 16, 2023 through the end of the school year, but funding for five hours of SETSS from September 7, 2023 through October 15, 2023.

Direct Funding for SETSS 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 $195 per hour (Ex. D; Ex. E). Further, Parent “is liable to pay the provider the full amount for all services delivered by the provider in the event that parent is unable to secure funding from the DOE or elsewhere” (Ex. E). I find that Parent is entitled to the requested form of payment.

As I have found that the District failed to provide Student services on an equitable basis for the 2023-2024 school year and that the services 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. E), I am ordering the District to fund special education as detailed in my Order below, which requires Parent to present a valid contract between Parent and provider and an affidavit attesting that the services billed for were provided. Funding for a 10-Month School Year I find that Student is entitled to funding of SETSS during a 10-month school year as recommended by the September 2023 IESP (Ex. B-13). 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. ^[10]

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 group Special Education Teacher Support Services (“SETSS”), five hours per week to be administered 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 twelve months and at a rate not to exceed $166 per hour. The DOE shall fund services from September 7, 2023 through October 15, 2023; 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 from October 16, 2023 through the end of the 10-month, 36-week 2023-2024 school year, the DOE shall fund group SETSS, seven hours per week to be administered 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 twelve months and at a rate not to exceed $166 per hour; and it is further.

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

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

December 29, 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 Provider Agency

APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Exhibit Title of Document Date Number of

Pages

A Impartial Hearing Request 10/11/2023 6

Individualized Education Services Program

B (IESP) 09/27/2023 16

C June 1st Letter 5/31/2023 1

D Affidavit of REDACTED 11/25/2023 1

E Service Contract 9/1/2023 1

F Provider Certificate Undated 2

G Teacher Report 9/25/2023 13 ^[11]

DOE EXHIBITS

None

IHO EXHIBITS

Exhibit Title of Document Date Number of

Pages

Emails Regarding Scheduling of Appearances 10/25/2023-

I (Redacted) 10/26/2023 2

II Memorialization of Status Conference and Order 11/28/2023 3

Regarding Scheduling of Appearances and

Expectations for the Hearing (Redacted)

Emails Regarding Attendance at Hearing and

III Agreement to Submit Closing Briefs 12/7/2023 9

IV Order on Pendency 12/07/2023 2

V Email Regarding Expedited Transcript 12/118/2023 1

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 September 2023 IESP was to be implemented on October 16, 2023 (Ex. B-1).

[3] The CSE recommended that Student receive seven periods of SETSS per week (Ex. B-13). I deem one period to equal one hour.

[4] As explained below, as of the hearing date, Parent was only seeking funding for SETSS pursuant to the September 2023 IESP (Tr. 14-15).

[5] 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.

[6] References to the transcript from the Due Process Hearing conducted on December 7, 2023 are denoted “Tr.”

[7] As explained in detail in the Remedies section, it is unclear to me how Parent could have contracted with Provider for seven hours of SETSS on September 1, 2023.

[8] As explained in the Remedies section, I find that Student is not entitled to funding for seven hours of SETSS per week for the entire school year. I find that Student was entitled to only five hours of SETSS per week from the period of September 7, 2023 until October 16, 2023.

[9] Parent’s Attorney did not seek to admit any IESP generated prior to the September 2023 IESP.

[10] See NYC DOE 2023-2024 School Year Calendar, found at < https://www.schools.nyc.gov/about-us/news/2023-2024-school-year-calendar> (last visited Dec. 29, 2023); see also Application of a Child with a Disability, Appeal No. 23-153, pg. 25; Application of a Child with a Disability, Appeal No. 23-033, FN 10.

[11] Although the Cover Sheet for Parent’s Exhibits reflects that Exhibit G is 11 pages and it was admitted into evidence as such (Tr. 12), it consists of 13 pages.