Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 183087

Student's Name:

Date of Birth:

District:

Hearing Requested By: Parents

Dates of Hearing: June 20, 2019

July 25, 2019

August 23, 2019

September 25, 2019

November 18, 2019

January 13, 2020

Record Closed Date: January 15, 2020

Hearing Officer: Dora M. Lassinger

The parents of requested an impartial hearing on May 13, 2019 challenging the DOE’s failure to develop an appropriate IEP for the 2018-2019 school year, and requesting an enhanced rate of $150.00 per period for recommended SETSS services. I was designated to hear this matter on May 15, 2019. A pendency hearing was held on June 20, 2019.

By agreement of both parties, I ordered that effective May 13, 2019, and during the pendency of all due process proceedings, the DOE shall continue to provide the student with the following services:

1. Special Education Itinerant Teacher Services, 5 hours per week, individually;

2. Occupational Therapy (“OT”) two times per week for forty-five minute sessions, individually.

The hearing was scheduled and rescheduled, and the compliance extended, while the case was investigated for settlement. When the settlement did not occur, an evidentiary hearing was held on January 13, 2020.

On that date, the parent’s advocate stated that the parent was seeking funding for SETSS recommended in the student’s IESP, at the rate of $125.00 per hour, for the period from September 1, 2018 through May 13, 2019; as the remainder of the 2018-2019 school year was funded pursuant to the Interim Order on Pendency (IHO Ex. I; Tr. pp. 32-33, 51). The parent withdrew her challenge to the IESP for the 2018-2019 school year. (Tr. pp. 36-37).

DOE Position

The DOE’s position is that a provider of SETSS was available at the rate of $100.00 per hour; and that therefore the rate sought by the parent is excessive. (Tr. p. 39). In support of its position, the DOE called, the Director of (hereinafter referred to as “ ”)., the District Representative, stated that when the district sends out a recommendation, it informs parents to contact the district if they have any problems.

There is no evidence, however, that the parent in this case, was given contact information for. (Tr. p. 42). testified that provides certified special education teachers to provide SETSS. (Tr. pp. 45-46). She testified that during the 2018/2019 school year, had providers available to provide five periods per week of SETSS, at the rate of $100.00 per hour. (Tr. p. 46). She did not know whether is listed on the provider list for the DOE. (Tr. p. 48). She testified that $100.00 per hour is not the DOE rate, and that a parent would have to seek an enhanced rate in order to secure the services of. (Tr. p. 49).

Parent’s Position

The parent’s position is that the DOE should fund SETSS provided to the student, during the 2018-2019 school year, at the rate of $125.00 per hour. (Tr. p. 52).

The parent submitted an affidavit from, the president of (hereinafter “ ”), stating that provided the student’s SETSS (5 hours per week), for the period from September 1, 2018 through June 30, 2019, at the rate of $125.00 per hour. The provider was Sarah Cohen, a certified special education teacher. As of September 23, 2019, had not received any payment for the services (Par. Ex. C, D). submitted a report dated June 30, 2019, in which she stated that the student progressed in his mathematical abilities. (Par. Ex. E)., a part-time supervisor at, testified that she has a master’s degree in special education and general education, and is a behavior analyst. (Tr. p. 53). She testified that during the 2018/2019 school year, was supervised by a supervisor at the school.(Tr. p. 55). also visited the school, every other week, met with the providers and the supervisor in the school. (Tr. pp. 59-60).

She testified that performed informal assessments of the student, and created goals. She testified that they worked on letter identification, skills to address the student’s memory deficit, and behavior modification to help him focus and regulate. (Tr. pp. 57-58). She testified that many of his IEP goals are identical to the goals she described. (Tr. p. 58). She testified that the student made progress in his sight words, and fluency. (Tr. pp. 60-61). testified that the rate charged by, $125.00 per hour, includes two to three levels of supervision, training provided to the teachers, materials purchased, and cubicles which purchased. (Tr. p. 62). The teacher who services the student was paid approximately $80.00 per hour. (Tr. p. 64). She testified that due to the multiplicity of the student’s needs (which included deficits in communication, academic and social behavior), a team effort was required to address them. (Tr pp. 65-66)., the student’s mother, testified that during the 2018/2019 school year, the student attended Yeshivat Or Hatorah, as a first grade student. She testified that the DOE never informed her that she should contact. (Tr. p. 69). She testified that at the time of IESP meeting, she was already using; and does not recall if there was any discussion regarding other providers. She testified she received a pamphlet, with a list of providers; but was unable to secure a provider at the DOE rate. (Tr. pp. 71-72). She testified that she contacted the district about her difficulty in finding a provider, but was not given any other agency to call. (Tr. p. 77).

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 withdrew her challenge to the recommended program. The DOE did not present any evidence that it provided the recommended SETSS to the student. The DOE does not dispute that the parent is entitled to an enhanced rate of SETSS; but argues that the rate should not exceed $100.00 per hour. (Tr. p. 80).

Although the DOE presented evidence that could have provided the SETSS at the rate of $100.00 per hour; there was no evidence that the parent was informed of that fact. Nevertheless, I agree with the DOE that the requested rate of $125.00 per hour is excessive. The rate charged by is approximately 50% higher than what is paid to the provider. No evidence was presented that parent agreed to the rate or paid any portion of it. See Application of a Student with a Disability, Appeal No. 16-044 at 8. Nor was evidence presented that $125.00 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 May 2019. While the parent presented evidence that provided materials and two layers of supervision, beyond the tutoring services; all of those services go beyond what was required by the IESP.

For all of the foregoing reasons, I find that the SETSS services provided to the student for the time period from September 1, 2018 through May 12, 2019 should be funded at the rate of 110.00 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 1, 2018 through May 12, 2019 (five periods per week), at the rate of $110.00 per hour.

Dated: January 18, 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

Department of Education

1. IESP, 12/21/17, 9 pp.

2. IESP, 12/5/18 12 pp.

3. Psychoeducational Evaluation, 8/24/17, 3 pp.

4. Classroom Observation, 11/14/18, 2 pp.

5. Social History Update, 8/18/17, 3 pp.

6. Email to , 9/25/19, 1 p.

Parents

A. Impartial Hearing Request, 5/13/19, 2 pp.

B. IEP, 3/23/16, 13 pp.

C. Provider’s Certificate, undated, 1 p.

D. Affidavit of Services, 9/23/19, 1 p.

E. Treatment Plan, 6/30/19, 4 pp.

F. Progress Report, 11/11/18, 3 pp.

Impartial Hearing Officer

I. Interim Order on Pendency, 6-20-19, 3 pp.

II. Extensions, various dates, 7 pp.