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CASE NUMBER: 619231 - NYC: 265810
FINDINGS OF FACT AND DECISION
Case Number: 265810
Student’s Name: STUDENT
District: REDACTED
Impartial Hearing Officer: Eryn DeFontes, Esq.
Date of Filing: November 21, 2023
Hearing Requested by: Parent
Date of Hearing: February 2, 2024
Record Close Date: February 16, 2024
Date of Decision: February 16, 2024
NAMES AND TITLES OF PERSONS WHO APPEARED
Parent’s Representative
For the New York City Department of Education:
District Representative
Case Manager, Provider Agency
BACKGROUND AND PROCEDURAL HISTORY
Parent, through counsel, filed a Due Process Complaint (DPC) on or about November 21, 2023. Parent alleges inter alia, that the Department of Education (DOE or District) failed to provide Student a free appropriate public education (FAPE) on an equitable basis for the 2023-2024 school year (SY) through its failure to implement the services set forth in an Individualized Education Services Program (IESP or IEP) dated July 25 , 2023 (2023 IEP).[1] On November 22, 2023, the undersigned Impartial Hearing Officer (IHO/undersigned) was appointed to preside over this case. On December 20, 2023, a Prehearing Conference was held. A hearing on the merits (DPH) was held on February 2, 2024. As relief, the parent requests implementation of the related services set forth in the 2023 IEP, specifically, Occupational Therapy (OT) , 2x30, 1:1 and 1x30, 2:1, to be provided for the 2023-2024 SY, funded at an enhanced rate of $250 per hour, by a provider chosen by the parent.[2]
District Representative proffered exhibits 1 through 3, did not dispute that the DOE failed to implement the aforementioned related services and challenged the appropriateness of Provider Agency’s rate and services.[3] Parent’s Representative submitted Exhibits A through G. After a full review of the evidence, the undersigned makes the following findings of fact and determinations.[4]
LEGAL STANDARDS AND FRAMEWORK
The IDEA provides that children with disabilities are entitled to a FAPE.[5] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.[6] 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.[7] 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.”[8] A parent's request for the costs of privately obtained teacher instruction warrants an analysis consistent with the framework set forth in Burlington-Carter.[9] Consequently, the DOE may be required to reimburse parents for expenditures for private educational services obtained for a student, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim.[10]
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.[11] The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools.[12] Under State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made.[13] 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]."[14]
FINDINGS OF FACT/DISCUSSION
The following facts are not in dispute unless otherwise noted. Student and Parent reside in New York City and Student attends a Private School located within the geographic boundaries of the DOE.[15] Student has been identified as a Student with a disability and requires the services set forth in the 2023 IEP in order to make progress.[16] The 2023 IEP recommended OT at the following frequencies and ratios: two individual thirty-minute sessions per week (2x30 1:1) and one, group of two, thirty-minute session per week (1x30 2:1).[17] The Parent was unable to secure providers at the DOE rate and therefore unilaterally arranged for Provider Agency to do so.[18] Parent’s representative proffered a purported contract for OT services.[19]
The undersigned concludes that Parent in this matter failed to provide credible and convincing evidence to demonstrate that the requested rate of $250 for the subject related service is reasonable, or that the purported contract is valid. For example, upon review of the contract, Student’s related service, namely, OT, is notably absent (only “SETSS” services are expressly mentioned therein), however, SETSS services are not at issue in this case. It is further unclear from this language what exactly the Parent is agreeing to: which services will be offered, may be offered, or are currently being offered to the Student and what Parent is expected to pay for and when.[20] The document is further devoid of scheduling of services, including duration and frequency, as well as fee and payment and/or deposit schedules, in addition to dates services will commence and terminate. Most troubling however is the fact that said contract is dated September 1, 2023, however, Parent’s signature/initials are dated January 17, 2024.[21]
Adding to the discrepancies, the progress report, dated December 26, 2023, states Student is being serviced pursuant to their OT mandate of “2x30”, yet the subsequent recommendations section notes Student should “continue at the current mandate of 3x30”.[22] Furthermore, the case manager’s affidavit and accompanying testimony maintain that Student should receive “a total of 40 hours” of OT for the 2023-2024 SY, yet Student’s services amount to 90 minutes per week for a total of 60 hours.[23] Such inconsistencies, as aptly argued by the DOE, beg the question as to what type and amount of services Parent contracted for, and whether the Provider Agency actual furnishes the services as mandated in Student’s 2023 IEP.
In addition, the hearing record is devoid of any credible evidence to support funding at the Provider Agency rate of $250 per hour. An affidavit from the case manager states OT is provided at a rate of $250 per hour and the provider (occupational therapist) is paid a rate of $120.[24] The case manager appeared at the instant hearing and in response to questions from the DOE, could not provide any detailed or credible testimony regarding the provider’s training and experience, the amount, type and form (if any) of supervision provided, when Student began receiving services and in what frequency, nor could the case manager credibly explain in detail how the remainder of the $250 rate is allocated, (i.e. standard business expenses, overhead, materials, taxes, etc.), beyond claiming that the remaining $130 pays for “expenses”. The question therefore remains, if $120 is paid to the occupational therapist, how does Provider Agency account for the remaining $130?
Nonetheless, the undisputed fact remains that the DOE failed to implement Student’s mandated services. 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."[25] 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.”[26]
What is more, a district cannot be absolved of its statutory obligation to implement services for the student simply by being inactive in implementing the mandated services. The DOE had the obligation to provide services to the Student in conformity with the IESP.[27] In failing to do so, the DOE failed to provide the Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district. Moreover, it has been held that the District may not effectively compel a parent to resort to self-help in obtaining a provider.[28] Such a “de facto delegation from the district to the parent of the obligation to find a…provider…at an acceptable rate is manifestly unreasonable” and a violation of State law.[29]
EQUITABLE CONSIDERATIONS/REMEDIES
In this case, where Parent was essentially presented with no other option but to unilaterally selected a private provider, the evidence presented must allow the undersigned to craft 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.”[30] As such, equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so.[31]
In this matter, the DOE Rep. referenced the aforementioned inconsistencies present throughout Parent’s case, argued against the requested rate of $250/hour as excessive, and declared the mark-up of 105% to 110% as unreasonable and without justification.”[32] The DOE Rep. further suggested a 35% mark-up and cited its exhibits in support thereof.[33] Although rate schedules submitted by the DOE fail to list up-to-date rates for OT services specifically, the undersigned finds DOE’s argument’s persuasive and the data set forth in support instructive.
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.[34] Notwithstanding a lack of FAPE or equitable services, “caselaw supports…reimbursement and direct payment remedies in a unilateral placement case, which forecloses any complete disavowal of the parent’s burden of production and persuasion related to the private, unilateral services obtained by the parent.”[35] Accordingly, the undersigned shall Order relief as appropriate and in full consideration of the lack of consistency, clarity, and credibility of the exhibits and testimony submitted by the Parent. The undersigned further considers DOE’s failure to implement the services set forth in Student’s subject IEP.
CONCLUSION
The DOE failed to provide the Student with a FAPE on an equitable basis for the SY at issue through its failure to implement Student’s mandated services as set forth in the 2023 IEP; the Provider Agency in this case failed to produce any credible or convincing evidence to justify the $250 rate charged for occupational therapy. Based upon the foregoing, the undersigned shall order relief at a reduced amount, subject to the conditions set forth below.
ORDER
IT IS ORDERED,subject to the conditions herein and set forth in the paragraphs below,that the DOE shall fund occupational therapy services for the 2023-2024 SY, as mandated in Student’s 2023 IEP,[36] and should Parent choose to retain the services of the Provider Agency referenced in the instant decision, such Provider Agency shall be paid at a rate not to exceed $120 per hour;
IT IS FURTHER ORDERED, subject to the conditions herein and set forth in the paragraphs below, that should Parent choose to retain the services of a Provider other than the Provider Agency referenced in the instant decision, the DOE shall fund occupational therapy services for the 2023-2024 SY, as mandated in Student’s 2023 IEP, to be provided by a qualified provider of the Parents’ own choosing (other than the Provider Agency referenced in the instant decision), to be paid at a reasonable market rate, consistent with rates that have been paid by the Implementation Unit for comparable occupational therapy services within 6 months of the date of this Order;
- IT IS FURTHER ORDERED that the occupational therapy services described above shall be funded only upon receipt of dated and itemized invoices for services rendered and accompanied by sworn affidavits attesting that the services billed for were provided;
- IT IS FURTHER ORDERED that the occupational therapy services described above shall be funded by the DOE only to the extent not currently implemented and/or funded by the DOE via a related service agreement (RSA), or via pendency;
- IT IS FURTHER ORDERED that to the extent such services, as described above, are not utilized by Student by one year from the date of this Order, any remaining services shall expire.
SO ORDERED.
Date: February 16, 2024 Eryn DeFontes
Eryn DeFontes, Esq.
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.
DOCUMENTATION ENTERED INTO THE RECORD
DOE EXHIBITS
# | Document Description | Date | Page Count |
1 | Individualized Education Program (IEP) | 07/25/2023 | 13 |
2 | Related Services – Independent Provider Rate Schedule | 08/02/2019 | 1 |
3 | Hourly Rates for Independently Contracted Special Education Teachers and Related Service Providers | 10/2023 | 25 |
PARENT EXHIBITS
A. | Impartial Hearing Request | 11/20/2023 | 5 |
B. | Provider’s Certification | Various | 1 |
C. | Due Process Response | 11/28/ 2023 | 4 |
D. | Progress Report | 12/26/2023 | 3 |
E. | Parent’s Contract | 9/01/2023 | 1 |
F. | Affidavit | 01/26/2024 | 1 |
G. | Individualized Education Program | 7 /25/23 | 13 |
Footnotes
[1] P-A-2. It is not disputed that Parent does not request SEIT or SETSS services in this matter.
[2] Id. at 2, 4. Services amount to a total of 90 minutes per week.
[3] DOE Rep. cross examined Parent’s witness, case manager of Provider Agency.
[4] The instant FOFD is rendered in advance of receipt of the transcript.
[5] See 20 U.S.C. § 1400 (d)(1)(A).
[6] See 20 U.S.C. § 1401(9).
[7] See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[8] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[9] See, SRO 23-142; Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 114 S. Ct. 361, 126 L. Ed. 2d 284 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 105 S. Ct. 1996, 85 L. Ed. 2d 385 (1985)
[10] Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).
[11] See 20 U.S.C. § 1412(a)(l)(A); Educ. Law § 4402(2)(a), (b)(2).
[12] See 34 C.F.R. § 300.137(a).
[13] See Educ. Law § 3602-c(2).
[14] Educ. Law § 3602-c(2)(b)(l).
[15] P-A.
[16] P-G-1-10.
[17] Id. at 10; D-1-10.
[18] P-A-1.
[19] P-E-1.
[20] The Parent did not testify at the instant hearing. See generally, Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356, 361, 314 NE2d 37, 357 NYS2d 705 [1974]; Illusory contracts (Black's Law Dictionary 370 [9th ed 2009]).
[21] P-E-1.
[22] P-D-1, 2; P-G-10 (the 2023 IEP recommends a total of 3x30 OT).
[23] Id.; P-F.
[24] P-F.
[25] Educ. Law § 3602-c(2)(a).
[26] Educ. Law § 3602-c(2)(b)(1).
[27] See Educ. Law§ 3602-c(2)(a), (b)(l).
[28] Seee.g., Application of a Student with a Disability, Appeal No. 21-101.
[29] Id.; SeeApplication 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); seealsoApplication of a Student with a Disability, Appeal No. 20-087; and Application of a Student with a Disability, Appeal No. 20-140.
[30] Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[31] Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993).
[32] See independent provider rate schedule (dated 2019) and Hourly Rates for Independently Contracted Special Education Teachers and Related Service Providers reports, D-2; D-3.
[33] Id. at 3-8; 11, 12. DOE Rep. proposed alternative rates of $162 per hour ($120 x 35% ($120 + $42) = $162), or maximum of $186 per hour ($120 x 55% ($120 + $66)=186).
[34] SeeApplication of a Student with a Disability, Appeal No. 20-023, citingDoe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 (D.Conn. 2017).
[35] See Application of a Student with a Disability, Appeal No. 20-115 (Sept. 3, 2020) at pg. 9.
[36] P-G-10.