Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 184543

Student's Name:

Date of Birth:

District:

Hearing Requested By: Parents

Dates of Hearing: July 24, 2019

September 10, 2019

October 7, 2019

November 12, 2019

December 11, 2019

January 13, 2020

February 4, 2020

March 12, 2020

May 6, 2020

Record Closed Date: May 29, 2020

Hearing Officer: Dora M. Lassinger

The parents of requested an impartial hearing on July 1, 2019 challenging the Department of Education’s (“DOE’s”) failure to develop an appropriate and timely IESP for the 2019-2020 school year, and requesting continuation of the services previously ordered in a Findings of Fact and Decision (“FOFD”) dated May 15, 2019. (Par. Ex. A).^[1] I was designated to hear this matter on July 8, 2019, after the prior hearing officer recused.

A pendency hearing was held on July 24, 2019. By agreement of both parties, I issued an Interim Order on Pendency (“IOP”) ordering that effective July 1, 2019, and during the pendency of all due process proceedings, the student shall continue to receive the following services on a twelve month basis: (1) Special Education Teacher Services nineteen hours per week, individually, ata rate not to exceed $135.00 per hour;?^[2]

(2) Speech/language therapy (“SLT”), one time per week for thirty minute sessions individually and two times per week for thirty minute sessions in a group of two; (3) Occupational Therapy (“OT”) three times per week for thirty minutes sessions individually;

(4) Physical therapy (“PT)three times per week for thirty minute sessions, individually; (5) Parent Counseling and Training (“PCAT”) one time per week for sixty minutes sessions individually, (IHO Ex. I).

Following the hearing, the case was scheduled and rescheduled, and the compliance date extended, while the case was investigated for settlement. When the investigation did not result in a settlement, a hearing on the merits was held on May 6, 2020.

DOE Position ' * At the time of the pendency hearing, the parents specifically requested that I order the continuation of the rate of $135.00 per hour for special education teacher services. (Tr. p. 5).

The DOE did not present any evidence at the hearing. (Tr. p. 47). Both parties agreed that the last IESP for the student was developed on April 10, 2018. This was a“ IESP meeting”. (Tr. pp. 49-51). The DOE argued that as the student is now school aged, a preschool program is not appropriate, and that $135.00 is an unreasonable rate. (Tr. p. 50). The DOE argued that the parent’s request for 12 month programming must be considered at a CSE review meeting, as the student is parentally placed. (Tr. p. 54).

Parent’s Position

The parent’s position is that as the CSE failed to recommend a program for the 2019/2020 school year, or implement its last recommended services for the same time period; the student is entitled to continue with the last agreed upon program (as set forth in the IOP), including twelve month programming. (Tr. pp. 51-54). The parents are also requesting that the rate previously ordered in the IOP be adjusted to $150.00, which it argues is a reasonable rate within the market. (Tr. p. 109).

The studentisa year old student at of , a private mainstream school. (Par. Ex. A, F). He was diagnosed with Autism Spectrum Disorder ( “ASD”), when he was years old. (Par. Ex. E). On January 18, 2017, Dr. ,a Clinical Neuropsychologist, recommended that he receive 20 hours per week of ABA SEIT to prevent regression. (Par. Ex. F).

On May 1, 2018, the CPSE classified the student as a Preschool Student with a Disability and recommended that he receive Special Education Itinerant Teacher Services (SEIT) 19 hours per week , individually; OT, three times per week individually, for 30 minute sessions; SLT three times per week (once individually) for 30 minute sessions, PT three times per week for 30 minute sessions; and PCAT, once per week for 60 minute sessions individually. (Par. Ex. C).

In a prior proceeding (Case No. ), the parent requested continuation of the preschool program and funding for the SEIT, at the rate of $175.00 per hour. THO that the recommended reduction in special education teacher services (from 19 hours individually to 12 hours in a group) was not equitable and not supported by the record. She found that the issue of 12 month programming was not discussed at the CSE review, and did not rule on that issue. She further found $135.00 per hour is the appropriate rate for the special education services. (Par. Ex. B).?^[3]

The student continued to receive services from , during the 2019/2020 school year, from July 2019. (Tr. p. 59).

, the program director at , testified that she is certified in special education, and has held her current position for three years. (Tr. p. 57). Ms. testified that prior to starting services for the student, attempted to find a DOE approved provider, but that none was available. (Tr. pp. 59-60).

During the summer months, services were provided at . During the school year, services were provided on a push-in and pull-out basis, and via teletherapy. She testified that the student requires twelve month programming as he experiences severe regression during school breaks. (Tr. pp. 60-61, 77).

Ms. testified that the student has a diagnosis of ASD which impacts his social functioning and ability to learn. He is highly distractible and has difficulty self-regulating. He requires re-teaching and re-learning. (Tr. p. 62) During the 2019/2020 school year, the student’s provider was , a teacher with certification in general and special education, birth through second grade, with training in ABA. (Tr. p. 63). Ms. also collaborated with > In those proceedings, the parents challenged a IESP meeting held on April 10, 2018, when the DOE recommended 12 periods per week of SETSS, in a group. (Tr. pp. 96-97; Par. Ex. B). her on a regular basis. She described two occasions when she actually observed her; once in January and once during a teletherapy session The student’s social and academic delays are addressed during his special education services. (Tr. pp. 61, 63).

The student was held over during preschool, and is now in kindergarten, although he is chronologically a first grader. He was taught reading using a multisensory approach, and progressed to a mid to end kindergarten level.,. In math, he was instructed with the support of manipulatives, and progressed in addition and simple subtraction. He also progressed in writing letters. He also progressed in increasing his social interaction. (tr. pp. 64-69).

Ms. testified that the student continues to require 19 hours per week of one-to-one support to function in a general education setting; which is an optimal setting for him. (Tr p. 71).

She believes he is receiving all of recommended SLT, OT an PT. (Tr. p. 81).

Although Ms. testified that SEIT is an appropriate service for the student (as it addresses both academic and social issues); she stated that the same service would be provided, whether I order that it be provided as SEIT or Special Education Teacher Support Services ( “SETSS”) which is a school age service. (Tr .pp. 75-76).

In an affidavit dated April 23, 2020, , the Director of , wrote that the student was provided SEIT services, during the 2019/2020 school year, at a rate of $150.00 per 60 minute session. (Par. Ex. G). At the hearing, he testified that the rate is based upon the cost of the provider, supervisor, and additional support staff; including a behavior analyst and reading specialist, professional development, supplies and materials. The agency also considered the rates charged by other agencies performing similar services. (Tr. p. 87). fThe rate paid to the provider is $83 per hour; or $91, when taking into account mandated payroll taxes. (Tr. p. 89, 92). He described extensive support by the supervisor including reviewing sessions notes, reports and in-person observations. (Tr. pp. 91-92). He acknowledged that the IOP provides a rate of $135.00 per hour, and assumes that is what the agency was paid for the service. (Tr. p. 93).

Mr. _ , the student’s father, testified that the parents were never contacted during the 2018/2019 school year, to develop an IESP for the 2019/2020 school year; but that a meeting was scheduled to take place on the date of this hearing. (Tr. p. 98). Nor did the DOE contact the parents about implementing the last recommended IESP. (Tr. p. 98).

Mr. _ testified that the student has progressed in his social skills, in reading, writing and math, as a result of the services he has received. (Tr. p. 100). He testified that he does not have a contract with , and has never been billed by the agency,(Tr. p. 102).

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.”

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, it is undisputed that the DOE did not develop an IESP for the 2019/2020 school year. The last IESP which was developed, was already successfully challenged in Case No. ; and by agreement of both parties, the student has received the services recommended in the student’s preschool IEP, during the pendency of these proceedings. Therefore, I find that the DOE failed to meet its burden of proving the appropriateness of its recommendations for the current school year. I also find that the parent demonstrated the continued appropriateness of the level of services provided in the IOP.

Although I find that the services provided by were appropriate, I find that the requested rate of $150.00 per hour is excessive. The rate of $135.00 per hour was specifically requested by the parents, when the IOP was made in July 2019. With the school year nearly over, the provider has continued to render the service at that rate. I see no reason to change the rate and I find that it continues to be a reasonable rate.

No evidence was presented that the parent is obligated to pay the increased rate requested by the Agency. Nor was any evidence 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.

With respect to the request for 12 month programming, I agree with the DOE that any request for services during the summer months must be considered by the CSE. The student already received services during the summer of 2019, pursuant to the IOP.

For all of the foregoing reasons, it is hereby ordered that the DOE shall continue to provide the following services to the student for the remainder of the 2019/2020 school year:

1. Special Education Teacher Support Services nineteen hours per week, individually, at arate not to exceed $135.00 per hour;

2. Speech/language therapy (“SLT”), one time per week for thirty minute sessions individually, and two times per week for thirty minute sessions in a group of two;

3. Occupational Therapy (“OT”) three times per week for thirty minutes sessions individually;

4. Physical therapy (“PT) three times per week for thirty minute sessions, individually;

5. Parent Counseling and Training (““PCAT”’) one time per week for sixty minutes sessions individually.

It is further ordered, that if the CSE has not already done so, it shall reconvene, within 15 days of this order, to consider the student’s need for an IEP, providing twelve month programming.

Dated: June 1, 2020 Dow 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

A. Parents Impartial Hearing Request, 7/1/19, 3 pp.

B. Findings of Fact and Decision, 5/15/19, 15 pp.

C. IEP, 5/1/18, 24 pp.

D. Teacher (SEIT) Progress Report, 02/21/2020; 03/15/2020, 8 pp

E Neuropsychological Consultation Summary, 12/15/2016, 2 pp,

F. Psychological Update, 01/18/2017, 2 pp.

G. Affidavit of Services. 04/23/2020. 1 p. Impartial Hearing Officer I. IOP, 7/24/19, 3 pp, II. Extensions, various dates, 9 pp.

---

Footnotes

[1] Although not specifically requested in their due process complaint; the parents seek continuation of twelve month programming; which was already provided during the 2019-2020 school year, pursuant to the IOP. (Tr. p. 54).

[2] At the time of the pendency hearing, the parents specifically requested that I order the continuation of the rate of $135.00 per hour for special education teacher services. (Tr. p. 5).

[3] In those proceedings, the parents challenged a IESP meeting held on April 10, 2018, when the DOE recommended 12 periods per week of SETSS, in a group. (Tr. pp. 96-97; Par. Ex. B).