Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 179835

Student's Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearing: January 23, 2020

Record Closed Date: January 27, 2020

Hearing Officer: Dora M . Lassinger

The parent of requested an impartial hearing on November 28, 2019 challenging the DOE’s failure to develop an appropriate IESP for the 2018-2019 school year, and requesting continuation of services recommended in the last IESP (dated March 16, 2017); and an enhanced rate for the recommended SETSS services. I was designated to hear this matter on January 2, 2020, after the prior hearing officer recused.

A hearing was held on January 23, 2020

At the hearing, the parent’s attorney stated that the parent was seeking funding for SETSS recommended in the student’s last IESP, at the rate of $150.00 per hour, for the period from September 4, 2018 through June 30, 2019. The parent withdrew the request for relief with request to the related services recommended in the student’s last IESP. (Tr. p. 11).

Both parties agreed that the March 16, 2017 was the last IESP developed for the student and that the student was entitled to continue to receive all of the services recommended in that IESP, during the 2018/2019 school year. (Tr. p. 10).

DOE Position

The DOE did not agree with the parent’s request for an enhanced rate of $150.00 per hour for the SETSS which was provided. (Tr. p. 11).

Parent’s Position

The parent’s position is that the DOE should fund SETSS for the student, seven periods per week, during the 2018-2019 school year, at the rate of $150.00 per hour. (Tr. pp. 11-12).

The parent submitted an affidavit from from. (hereinafter “ ”), dated March 2, 2019, stating that was providing the student’s SETSS (7 hours per week), for the period from September 4, 2018 through June 30, 2019, at the rate of $150.00 per hour. (Par. Ex. C).

The parent submitted proof that Ruchel Rubinstein, one of the providers, was a certified special education teacher who passed a New York State test for proficiency in. (Par. Ex. D). M s. testified that she provided SETSS to Isaac five hours per week, for the duration of the 2018-2019 school year; and that the other two hours were provided by another credentialed provider. (Tr. pp. 16-17). M s. was paid $90.00 per hour for her services. (Tr. p. 17). She is not certified for bilingual instruction. (Tr. p. 17).

M s., the student’s mother, testified that she contacted five DOE providers, from a list provided by her son’s school; but that none of them were available. (Tr. pp. 20-21; Par. Ex. E).

She testified that she arranged for to provide SETSS to her son, at the rate of $150.00 per hour. never invoiced her for the services; and she has not made any payment to. (Tr. pp. 19-20).

Findings of Fact, Conclusions of Law and Order

Education Law § 3602c[2][b][1] provides as follows:

“ For the purpose of obtaining education for students with disabilities, as defined in paragraph d of subdivision one of this section, such request shall be reviewed by the committee on special education of the school district of location, which shall develop an individualized education service program for the student based on the student's individual needs in the same manner and with the same contents as an individualized education program. The committee on special education shall 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. Review of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter.” Y.’s entitlement to special education services, on-site at his private school, arises under Education Law § 3602c[2][b][1]. Application of the School District, 09-115; See Bay Shore Union Free School District v. Kain, 485 F. 3d 730 (2d Cir. 2007).

A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, 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. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). This right has been extended to claims for reimbursement, based upon a school district’s failure to provide appropriate services in accordance with Education Law §3602-c. Application of a Student with a Disability, 09-068.

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). In these proceedings the parent is seeking a finding that the student was entitled to the services recommended in the last (March 16, 2017 IESP), and the DOE agreed with that request. The DOE did not present any evidence that it provided the recommended SETSS to the student. The parent withdrew all claims except for a request that the SETSS (7 hours per week) be funded at the rate of $150.00 per hour, for the 2018-2019 school year.

I find that the requested rate of $150.00 per hour is excessive. No evidence was presented that parent was ever invoiced for the services, or paid any portion of it, although the services commenced over one year ago. See Application of a Student with a Disability, Appeal No. 16-044 at 8. Nor was evidence presented that $150.00 per hour was the market rate for private tutoring services, during the time period in question. There is no evidence that the DOE was informed that the parent would be seeking public funding for the SETSS at the enhanced rate, before these proceedings were commenced in November 2019. While the student’s IESP recommended bilingual instruction, the teacher provided by was not certified for bilingual instruction. Nevertheless, the record indicates that M s. was both certified as a special education teacher and proficient in.

For all of the foregoing reasons, I find that the SETSS services provided to the student for the time period from September 4, 2018 through June 30 2019 should be funded at the rate of $120.00 per hour.

ORDER

For all of the foregoing reasons, it is hereby ordered that:

1. The DOE shall fund the SETSS provided to the student, for the period from September 4, 2018 through June 30, 2019 (seven periods per week), at the rate of $120.00 per hour, upon presentation of proof that the services were actually provided by certified special education teachers, for the time period requested.

Dated: January 27, 2020 Dora M. Lassinger

DORA M. LASSINGER, ESQ.

Impartial Hearing Officer

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

Parents

A. Due Process Request, 11/27/18, 3 pp.

B. IESP, 3/16/17, 12 pp.

C. Affidavit Regarding Services, 3/20/19, 1 p.

D. Provider’s Certifications, various, 3 pp.

E. List of calls to providers, 8/28/18 to 9/2/18, 1 p.

Impartial Hearing Officer

I. Extensions, 1/8/20, 3 pp.