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FINDINGS OF FACT AND DECISION
Case Number: 180033
Student's Name:
Date of Birth:
District:
Hearing Requested By: Parents
Dates of Hearing: December 18, 2018
February 12, 2020
March 30, 2020
May 18, 2020
Record Closed Date: May 29, 2020
Hearing Officer: Dora M. Lassinger
The parent of requested an impartial hearing on December 4, 2018 challenging the Department of Education’s (“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 November 10, 2017); an enhanced rate for the recommended SETSS services, issuance of an RSA, an evaluation and a CSE reconvene. (Par. Ex. A). I was designated to hear this matter on January 2, 2020, after the prior hearing officer recused.
A pendency hearing was held before the prior hearing officer on December 18, 2018, and an Interim Order of Pendency (“IOP”) was made, retroactive to December 4, 2018, the date of the filing of the complaint. (THO Ex. I). On December 9, 2019, the prior IHO further ordered that a claim for the 2019-2020 school year be consolidated with these proceedings. (IHO Ex. II).
A pre-hearing telephone conference was held before me on January 8, 2020. After settlement efforts were not successful, a hearing on the merits was held before me on May 18, 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 $175.00 per hour, for the period from September 4, 2018 through December 4, 2018, the date when the IOP became effective.
(Tr. p. 28). The parent withdrew all other requests for relief. (Tr. pp. 18, 28).
DOE Position
The DOE opposed the parent’s request for an enhanced rate of $175.00 per hour, for the SETSS which was provided. (Tr. p. 38). Parent’s Position
The parent’s position is that the DOE should fund SETSS provided to the student, for the time period in question, at the rate of $175.00 per hour. (Tr. p. 52).
The parent submitted an affidavit from , the Educational Director of ; an agency which provides special education services, including SETSS. She wrote that $175.00 per hour is within the general market rate for the service within New York City. She stated that the rate includes one-to-one supervision, educational resources and support, professional development and materials, employment taxes, administrative costs and overhead. She wrote that provided 7 hours per week of 1:1 SETSS to the student for the 2018-2019 school year.
She wrote that SETSS was provided by . (Par. Ex. D).
Ms. , testified that Ms. is supervised by . Mr.
supervised 25 to 30 providers throughout the year, (Tr. p. 32). She testified that the agency charges between $150 to $175.00 per hour for SETSS. (Tr. p. 33). She testified that materials were purchased throughout the year, for use with the student; but she could not state specifically how much was spent for this student. (Tr. p. 35). Mrs. testified that the Agency paid Ms.
$90.00 for her services. (Tr. p. 30).
The parent submitted an affidavit from , dated May 14, 2020 stating that provided the student’s SETSS (7 hours per week), for the period from September 5, 2018 through June 30, 2019, at the rate of $175.00 per hour. The DOE has been paying the agency $175.00 per hour for these services, pursuant to the pendency order made in this case (covering the period from December 4, 2018 through the end of the school year) however no payment has been made for the period of time from September 5, 2018 through December 3, 2018, which remains the subject of these proceedings. Mr. stated that 75 hours of SETSS was provided to the student during that time period. (Par. Ex. G).
The parent submitted proof that was a certified special education teacher (birth to grade 2) with a bilingual extension. (Par. Ex. F).[1] ' Ms. submitted a progress report, dated February 13, 2019, describing the student, who was thena _ year old, 11TM grade student at . The student was significantly delayed in reading, and had limited math skills. He was able to do simple addition, subtraction and multiplication; but struggled with basic understanding of Algebraic principles. The student also exhibited a “rough behavior pattern”, displaying a lack of patience and acceptance of authority. She reported that the student progressed in his reading through the use of Wilson Intensive Intervention. She described his difficulty in organizing his thoughts; and stated that he is working on word math problems. She described the student’s struggles in performing math problems. In language, she wrote that the student is limited in his language abilities; and described her work with him in expanding his vocabulary and mastering correct punctuation skills. (Par. Ex. E).
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 'Ms. testified that notwithstanding her certification, Ms. has been providing services to high school students, and paid for these services by the DOE.(Tr. pp. 35-36). 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.”
The student’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 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 $175.00 per hour, for the period from September 5, 2018 to December 3, 2018.
Although I find that the services provided were appropriate, I find that the requested rate of $175.00 per hour is excessive. The rate charged is almost twice what is paid to the provider.
No evidence was presented that parent was ever invoiced for the services, or paid any portion of it, although the services were provided over one year ago. See Application of a Student with a Disability, Appeal No. 16-044 at 8. 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 December 2018. While the student is high school age, the provider is certified to teach students in grades birth to two.
The additional services provided by the agency, including supervision and professional development are not part of the student’s IESP, and do not justify the rate requested.
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 December 3, 2018 (75 hours) should be funded at the rate of $135.00 per hour.
ORDER
For all of the foregoing reasons, it is hereby ordered that the DOE shall fund the SETSS provided to the student, for the period from September 4, 2018 through December 3, 2018 (75 hours), at the rate of $135.00 per hour.
Dated: May 29, 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
Impartial Hearing Request, 12/4/18, 4 pp.
QmMOWD>
IESP, 11/10/17, 8 pp.
Impartial Hearing Request, 11/29/19, 4 pp.
Testimonial Affidavit, 5/14/20, 5 pp.
Progress Report, 2/13/19, 6 pp.
Teacher Certification, various dates, 2 pp.
Payment Affidavit, 5/14/20, 1 p.
Impartial Hearing Officer
I. Interim Order on Pendency, 12-20-18, 8 pp.
II. Order on Consolidation, 12-9-19, 5 pp.
III. Extensions, various dates, 5 pp.
Footnotes
[1] Ms. testified that notwithstanding her certification, Ms. has been providing services to high school students, and paid for these services by the DOE.(Tr. pp. 35-36).