New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 164715

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: February 16, 2017

March 7, 2017

March 20, 2017

December 6, 2017

March 8, 2018

March 27, 2018

April 26, 2018

June 5, 2018

July 25, 2018

August 14, 2018

October 16, 2018

Actual Record Closed Date: April 12, 2018

Hearing Officer: Martin J. Kehoe III, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 16, 2017

For the Student:

Parent, Pro Se (Via Telephone)

For the Department of Education:

District Representative (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 7, 2017

For the Student:

parent

For the Department of Education:

Attorney (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 20, 2017

For the Student:

Parent, Pro Se

For the Department of Education:

Attorney

SETSS provider (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 6, 2017

For the Student:

Attorney (Via Telephone)

For the Department of Education:

Attorney (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 8, 2018

For the Student:

NONE

For the Department of Education:

Attorney (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 27, 2018

For the Student:

Attorney

parent

For the Department of Education:

Attorney

Director Office of Related Services (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 26, 2018

For the Student:

Attorney

parent

For the Department of Education:

Attorney (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 5, 2018

For the Student:

Attorney

parent

For the Department of Education:

Attorney

Attorney

SETSS Provider (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 25, 2018

For the Student:

Attorney

parent

For the Department of Education:

Attorney

Attorney

SETSS Provider (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 14, 2018

For the Student:

Attorney

SETSS Provider (Via Telephone)

For the Department of Education:

Attorney

Agency Intern

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 16, 2018

For the Student:

Attorney

parent

For the Department of Education:

Attorney

Attorney

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer THO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student. The Parent filed a complaint notice on December 5, 2016. A pendency hearing was held on February 16, 2017 and March 7, 2017. I issued a pendency decision shortly thereafter, with an effective date of December 5, 2016. A hearing was held on March 20, 2017; December 6, 2017; March 8, 2018; March 27, 2018; April 26, 2018; May 9, 2018; June 5, 2018; June 25, 2018; August 14, 2018; and October 16, 2018. When the case began the Parent was representing herself (pro se); starting with the hearing on December 6, 2017, she was represented by counsel.

Parents’ Position In the complaint notice, the Parent explained that the parties agreed that five (5) hours of Special Education Teacher Support Services (SETSS) per week were appropriate for the 2016-2017 school year. She indicated that a provider had not been identified’. (Ex. 7). This claim is equitable in nature. Central to her position is the assertion that if a remedy is not provided then the Parent is potentially liable for the cost of services actually provided.

District’s Position The District’s position is:

' The Parent also incorporated a claim following the breach of the resolution that was achieved as a result of a gap in the payment for services for a previous year. It is alleged that services were denied from September to November 2015 and that the gap was to be covered by additional services which were to be provided during the summer of the 2016-2017 school year by virtue of a resolution agreement (even though the Student does not receive extended year services per his IEP). The resolution was not implemented and therefore the Parent requested enhanced rate services for the breach of the additional services, summertime SETSS.

1. The Student’s SETSS Teacher is not eligible to receive enhanced rate payment because she is an employee of the District;

2. A due process complaint notice is not the appropriate way to address a dispute over payment rate;

3. This case is outside the jurisdiction of an THO; and,

4. They also seek to have the case dismissed for mootness. In support, the District joins the literal allegations in the complaint notice and asserts that 1. the Student “received” all his SETSS services for the 2015-2016 and 2016-2017 school years, 2. was not entitled to summer services or compensatory services, and that 3. the Parent’s complaint notice was incorrect in stating that the Student missed services. (Ex. IHO 1)

Overview Both the District and the Parents submitted evidence. The District presented three witnesses: A SETSS Provider from the District’s “list of providers”, a Principal Administrative Assistant for the CSE, and the Director of the Office of Related Services. The Parent called the Student’s SETSS Teacher as a witness and testified herself. At the time the complaint notice was filed, the Student was and had a disability classification of Other Health Impairment (Ex. 1).

The Parent’s Search for a SETSS provider 2016-2017 The Principal Administrative Assistant (PAA) testified that she was assigned to help find a SETSS provider for the Student in the summer of 2016 (T. 208-209). She provided the Parent with the names of providers who were available (T. 209, 216-217). When the Parent told her no one was available, she contacted providers and identified three as possibilities (T. 214 — 217). She said the Parent considered one unqualified because of a difference over methodology (T. 218-219). She said the Parent thought the second SETSS provider was not qualified for the same reason (T.223). A third SETSS provider, had scheduling conflicts’. * When the SETSS provider testified for the District, she stated that when she first spoke to the Parent, she The Parent testified that the District did not tell her how to find a SETSS provider at the CSE meeting at the April 20, 2016 IESP Meeting (T. 360). She said that the District also did not advise her about rules for identifying a provider before the 2016-2017 school year (T. 361). She said that she picked up a copy of the list of providers (Ex. 19) in early August 2016 from the CSE office (T. 361) and she also used the online list (T. 362). The Parent testified that she only contacted special education providers in for high school students (that was the geographical location and grade level of the Student) and special education providers who did not indicate a grade level (T. 398). According to the Parent, several of the email addresses for the SETSS providers were no longer valid. She said other SETSS providers responded that they did not want to work in (although they were listed in ); others were not available; and others were not comfortable teaching math and science. (T. 367). The Parent explained that when no one was available, she called the SETSS Teacher, who she knew the District had approved in the past and who had the license, ability and time to teach the Student (T. 367). The Parent said that she regularly reached out to members of the CSE assigned to find a provider. In fact, one of them sent her list of nine SETSS providers in late September or early October 2016 (T. 369). She said that she contacted all of them; most were not available and two never returned her messages (T. 368-370). The Parent testified about her emails regarding providers she contacted (T. 375 — 380, Ex. 10, Ex. H, Ex. G & Ex. E, Ex. D). She said she told the District contacts about the responses from the providers, and said they never assigned her a provider, just gave her list of names (T. 381). She said that she met the SETSS Teacher during the 2013-2014 school year, when the CSE assigned the SETSS Teacher to work with both of her children (T. 381-382).

SETSS Services In her affidavit, the SETSS Teacher wrote that she provided SETSS services five times per week from September 9, 2015-June 28, 2016 and from September 18, 2016-February was told that the Student was not available on the days the Provider was available because of his activities (T. 68-71). She testified that when the Parent called her a week later to see if she could schedule an appointment, she no longer had time available. (T.78-79). 2, 2017 (the date she signed the affidavit) (Ex. 14). The SETSS Teacher also testified that she provided SETSS for the entire 2015-2016 and 2016-2017 school years (T. 323, 325-327).

The Parent also testified that the SETSS Teacher provided SETSS for the entire 2015-2016 school year and the entire 2016-2017 school year. (T. 403-404, 412-413, 431-432). (She clarified the issue about the complaint notice stating that the Student had missed services by saying that she meant that services were not provided at the enhanced rate until November 2015 (T. 413)°. She testified that she was paid at the enhanced rate starting on November 10, 2015 for the 2015-2016 school year (T. 322). She also testified that she was paid through pendency order for the 2016-2017 school year (T. 274-275). (The Order was effective as of December 5, 2016).

In light of this testimony I do not find that the District adequately discharged their duty of providing a SETSS provider. While there was an assertion that two providers were available, the Parent met the allegations and at least raised doubt in my mind that the District system is effective. Moreover, I find that there are three relevant gaps in the payment of enhanced rate SETSS services. 1. Summer SETSS per the resolution that was not implemented;

2. Fall of 2015 until services began on November 15, 2015; and

3. Fall of 2016 until the pendency order was implemented on December 5, 2016.

By way of background, the SETSS Teacher testified that she started working with the Student during the 2014-2015 school year. She said that she signed a “waiver” and was approved to work at the enhanced rate of $110. She spoke to the CSE office and they knew she was a District teacher (T. 258-259). She said she was not told by the District or CSE during the 2014-2015 or 2015-2016 school years that she was not entitled to receive the enhanced rate (T. 262, 266, 268)*. She said that she learned about a problem with the > The SETSS Teacher admitted that she was in error by stating in her affidavit (Ex. 14) that the enhanced rate was not authorized until November 23, 2015. * She testified that she raised the rate to $120 per hour during the 2016-2017 school year because she enhanced rate when the Parent told her about it during the 2017-2018 school year when a District investigator came to see her on June 5, 2018 (T. 277)°. When asked why she accepted payment at an enhanced rate after signing documents for the District in 2014, and 2015 that she would not, she explained “. . .I didn’t believe it applied to me, because I was given that rate by the CSE... That was the rate that came with the case....” (T.310-311 & 279) She denied having any understanding or written agreement between herself and the Parent regarding the rate of payment (T. 312). She testified that during the 2015-2016 and 2016-2017 school years, she would not have been willing to accept the regular rate (T. 313). She said she did not submit invoices for the periods when she was not paid (T. 329).

District Policy The Director of Compliance and Contract Management for the Office of Related Services testified for the District that the District Standard rate is $41.98 per hour. The enhanced rate is given only under specific circumstances such as if no other SETSS provider is available (T. 126-127). She testified that District employees have to sign a waiver restricting them from working more than ten (10) hours per week, compensating them at the standard rate, and only agreeing to provide services to school-aged students in non-public schools (T. 129, exp. 12). She said that if District employees charge an enhanced rate for SETSS services, this waiver would be revoked. However, if the CSE authorized a provider who is a District employee to be paid at an enhanced rate, the District employee would still not be permitted to accept it (T. 131-132). She said that these terms were in place for the 2015-2016 and 2016-2017 school years (T. 144-145). She later repeated that a District employee can never charge an enhanced rate for SETSS services and if the CSE or an THO orders enhanced rates, she said, “they should decline and accept the standard rate only.” (T. 158-159). She testified that in this case, the District employee, the SETSS Teacher, was never authorized to charge an enhanced rate of $110 during the 2015-2016 school year or $120 during the 2016-2017 school year (T. 159-160). She said learned from other SETSS providers that the current rate was $125 or higher (T. 273). > After the instant litigation commenced. no exemptions are granted to this rule (T. 165). She said she is not aware of a District employee ever receiving an enhanced rate from the District (T. 167).

Payment The SETSS Teacher testified that she did not have an understanding, a contract, or a written agreement with the Parent regarding payment at the enhanced rate. She also said that the Parent never paid her directly (T. 312-313). When asked why she filed the complaint notice, the Parent replied because the SETSS Teacher provided services at the enhanced rate. “And there was an implied agreement that I would deal with the DOE.... To make sure that all the paperwork is in order that she gets paid....” (T. 388). The Parent later stated that there was “an unspoken agreement” about payment. (T. 406). When asked if she ever had a contract to pay the SETSS Teacher for her services, she responded, “There was no written contract. However, it was an implied agreement and verbal.” (T. 416).

Legal Background The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE’’). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

- (A) have been provided at public expense, under public supervision and direction, and without charge, - (B) meet the standards of the state educational agency, - (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and - (D) are provided in conformity with the individualized education program required under § 614(d) ofthis title. 20 U.S.C. § 601(9).^[6]

A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an JEP. 20 U.S.C. § 614(d). The “core of the statute ... is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(1)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

Analysis

The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26). This case is of a type that is gaining currency in the District. Education Law section 3602-c, as amended by Chapter 378 of the Laws of 2007, establishes New York State’s (NYS) requirements relating to the provision of special education to students with disabilities enrolled in nonpublic elementary and secondary schools by their parents. Under the provisions of section 3602-c, students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an individualized education services program (IESP) from the public school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them.

Federal regulation (34 Code of Federal Regulations (CFR) section 300.130) defines parentally placed private (or nonpublic) school children with disabilities as "children with disabilities enrolled by their parents in private, including religious, schools or facilities that meet the definition of elementary or secondary school, other than children with disabilities covered under 34 CFR 300.145-147 — “Placement of children by parents if free appropriate public education (FAPE) is at issue."

Apparently there exists a disconnect between the rate that SETSS teachers are paid by the District and the market rate for the same services at parentally placed private (or nonpublic) schools. Like this case, many parents are unable to secure the services that are mandated by the CSE’s action and an implementation problem ensues. Further, when the parents seek relief by filing a complaint notice, the otherwise functional settlement framework of the District seems to fail. The investigation stage of the settlement process is seldom, if ever, productive and as a result, the parents are at financial risk and/or the student is at risk of losing educational benefits that all would agree are appropriate. Until the District determines a mechanism to implement their recommendations in this changing market for services, this type of case will continue to proliferate the docket in the District. The pattern that I have noticed is that the parties ultimately reach an impasse and the District will concede that the services are needed. Given the District’s burden of going forward, that should be the end of the inquiry, but it leaves open the question of the rate for the substitute services. The District bore the burden of both production and persuasion to establish that it provided the Student with a FAPE as well as all other issues alleged in the DPC. N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No. (“SRO No.”) 16-028; 13-200; SRO No. 11-091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District). See also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016).

In this case, the Parents have come forward with evidence of that rate and this has been unchallenged. But there is no question that the communications were unclear.

Ultimately, I resolve this case by applying equitable principles to the totality of the circumstances presented. Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and. . . mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]

The main issue in this case, of payment to the SETSS Teacher at an enhanced rate, seems to be based on a misunderstanding on the part of the CSE, the SETSS Teacher, and the Parent. The CSE authorized payment at an enhanced rate, apparently without knowledge of the District’s policy; the SETSS Teacher accepted payment at the enhanced rate (and even raised the enhanced rate herself the following year), thinking that there was an exception to the District’s policy; and the Parent believes that the SETSS Teacher was approved to work at the enhanced rate. Notwithstanding the contract defense and the various technical defenses raised by the District’, the SETSS provider had been previously authorized and paid by the District to provide services for the same Student. The Parent wanted to continue SETSS and notified the District and the CSE. The CSE never reconvened. In Application of a Student with a Disability, Appeal No. 17-034 at 7, the SRO discussed that: “A district cannot be absolved of its statutory obligation to implement SETSS for the student simply by asserting that the parent did not engage the services of the SETSS providers to whom the district referred her. The district had the obligation to provide services to the student in conformity with her IESP.”

My decision to resolve this matter is based upon my equitable jurisdiction and I make the following findings in furtherance thereof: The District agreed to provide services. The CSE previously agreed that the SETSS Teacher could provide the services at an enhanced rate and she was paid. The Parent notified the CSE that she needed SETSS provided and worked to find a provider who could work with her schedule. The SETSS Teacher was on the District list of providers and she was approved by the District to provide SETSS services (T. 256-257, exp. J). The SETSS Teacher’s self-serving increased rate of payment to $120 was not warranted’.

The District may wish to globally address the problem with a review of the contractual rate and the list of providers, which need to be updated. The District should take responsibility for this problem. To the extent that payments have been made under my Pendency order, I now convert those payments to the final order in this matter. All other claims and defenses are dismissed. ’ The District argues that the Parent lacks standing to bring a claim for enhanced rate services as the Student received the services, the SETSS Teacher signed a waiver agreeing to the standard rate, and the Parent agreed to the terms, the Parent and the SETSS teacher agreed not to pay that Teacher directly, and there is no harm to the Parent if the Teacher is not paid at the enhanced rate. The Parent acknowledges that the District provided SETSS for the 2015—2016 school year but did not provide a SETSS provider for the 2016-2017 school year.

* The SETSS Teacher was also providing services at an enhanced rate to the Student’s sister. Perhaps the District should conduct an audit to see if there is any impropriety with billing. This was not developed in this proceeding. In other words, the Parent does not prevail on her claim for enforcement of the resolution that provided a bank of hours to be delivered during the summer of 2016. It is my belief that I do not have jurisdiction over implementation claims but rather those claims must be heard by a court. Nor do I offer enhanced rate compensation for the service gaps at the beginning of 2015-2016 school year or the beginning of the 2016-2017 school year. As to these “gap” periods the SETSS Teacher can be paid the “standard rate’” upon submitting invoices for services provided during that time (Ex.s 17 & 23). As to the time periods that enhanced rate payments were already made, the SETSS Teacher may retain those payments as part of the final resolution in this matter.

Dated: May 1, 2019

So Ordered,

MARTIN J. KEHOE III, ESQ.

Impartial Hearing Officer

MJK:

° $41.98/hour

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Emails Between Parent and CSE, and Parent and SETSS Providers, 2015-16, 15 pages

Emails between Parent and SETSS Providers, Sept. 2015, 4 pages

Oemo8O|sa

List of SETSS Providers from CSE with Parent’s Notes, Oct. 2015, 1 page

Emails Between Parent and i from CSE, 2016-17, 6 pages

Resume of , Certification Information for ; And Emails between Parent and , with Parent’s Notes, undated, 9 pages

Unintentionally Omitted, N/A, 0 pages

Emails Between Parent and CSE, and Parent and SETSS Providers, 2016,

16 pages

Emails Between Parent and CSE, and Parent and SETTS Providers 2016, 16 pages

Address Search for Owner of “ , undated, 3 pages — Letter from Approving as an Approved Independent SETSS Provider, 10/3/14, 1 page

NYSED Information Sheet for , undated, | page

OTZA

Affidavit of , 2/2/17, 1 page

Authorization for Enhanced Rate, 10/6/14 thru 6/26/15, 11/10/14, 1 pages

Authorization for Enhanced Rate, 7/6/15 thru 8/14/15, 8/5/15, 1 page

Authorization for Enhanced Rate, 11/10/15 thru 6/30/16, 11/10/15, 1 page

DEPARTMENT OF EDUCAITON

1 2016-17 IESP (with signed attendance page) 4/20/16, 8 pages

2016-17 Prior Written Notice, 5/4/16, 4 pages WnN&wAW

2015-16 IESP (with signed attendance page), 3/2/15, 9 pages

2015-16 Prior Written Notice, 3/2/15, 4 pages

SETSS Provider Registry, 5/3/16, 4 of 579

Affidavit of , 9/22/17, 2 pages soHDOe

Due Process Complaint “& Accompanying Email, 12/5/16, 3 page

Due Process Response, 12/15/16, 3 pages

Email: Re: SETTS Provider Search — (top email from , 6/27/16, 1 page 10 Email: Re: SETTS provider Search (partially redacted) (top email

From ), 7/15/16, 3 pages 11 Email: Re: SETTS Provider Search (top email from ), 7/18/16, 2 pages 12 Mass Waiver Application — Unsigned, 2013, 2 page 13 Mass Waiver Application — Signed, Signature dated 2014, 2 pages 14 Affidavit, 2/2/17, 1 page 15 SETTS P-4 Form (blank), 2015, 2 pages 16 SETTS Information Sheet for , undated, | page 17 Authorization for Independent Special Education Teacher Support Services for Parentally-Placed Student (signed), Signatures dated

9/5/15, 9/7/15, and 1/12/16, 2 pages 18 Family Guide to Special Education Services for School-Age Children, Undated, 4 of 59 19 SETTS Provider Registry — DOE Teachers, 8/18/15, 5 of 48 pages 20 SETSS Provider Registry — DOE Teachers, 1/5/16, 5 of 53 pages 21 SETTS Provider Registry - DOE Teachers, 5/3/16 5 of 57 pages 22° SETTS Provider Registry - SETSS Provider Registry - DOE Teachers, 8/5/16, 5 of 59 pages 23 Authorization for Independent Special Education Teacher Support Services

For Parentally — Placed Student (signed) Signatures Dates, 9/1/14, 10/13/14 and 11/10/14, 2 pages

IMPARTIAL HEARING OFFICER

[HO #1 Parent’s Closing Brief, 15 pages [HO # District’s Closing Brief, 24 pages

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Footnotes

[6] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education.