Impartial Hearing Decision

DECISION AND ORDER

Case Number 185347

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearing: September 4, 2019 (PHC), March 25, 2020, April 6, 2020

Hearing Officer: Rona Feinberg, Esq.

Actual Record Close Date: May 20, 2020

WITNESSES

September 4, 2019 (PHC)

Advocate Parent (via telephone)

District Representative Department of (via telephone) Education

March 25, 2020

Advocate Parent (via telephone)

Parent (via telephone)

Director, Parent (via telephone) Agency

District Representative Department of (via telephone) Education

April 6, 2020

Advocate Parent (via telephone)

District Representative Department of (via telephone) Education

SETSS Provider Parent (via telephone)

Hearing Officer’s Findings of Fact, Decision and Order

INTRODUCTION

On September 4, 2019 (PHC), March 25, 2020, April 6, 2020 I held an impartial hearing in this case pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(H(1) regarding the education program of a school-aged child, (“ ”). The Pre-Hearing Conference on September 4, 2019 was held by telephone. The hearings on March 25, 2020 and on April 6, 2020 were held remotely due to the COVID-19 crisis. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.

BACKGROUND

is years months old and is classified as having a Speech or Language Impairment. He is unilaterally placed at (“ ).

The parent, by her advocate , filed a Due Process Complaint on July 17, 2019. The parent explained that she was not able to find a Special Education Teacher Support Services (“SETSS”) provider at the regular rate and required an enhanced rate for s services. As a remedy the parent asked that the Department of Education pay _’s SETSS provider at an enhanced rate for the 2019-2020 school-year (Parent’s Ex. A at 2).

The original compliance date was September 30, 2019. I extended the compliance date eight times, alternately for the availability of witnesses, because the parents could not attend, for the parties to prepare for a hearing, for the parties to prepare written Closing Statements and for this hearing officer to review the transcript and documents and issue a Decision and Order. The extensions were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education ( “Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(i1i) of the Commissioner’s Regulations. Specifically, (a) the child was receiving SETSS by a provider desired by the parent; (b) in accordance with due process the parties were entitled to secure witnesses, to submit written closing statements and to have this hearing officer review the transcript and documents prior to issuing a Decision and Order; (c) there were no financial or detrimental consequences likely to be suffered by either party by the delay; and (d) there was no prior delay in this case that impacted on __’s education.

THE ISSUE REMAINING IN DISPUTE AT THE IMPARTIAL HEARING

The remaining issue in the case is whether the parent is entitled to have the Department of Education pay for __’s 1:1 bilingual SETSS provider at an enhanced rate of $150.00 per hour for the 2019-2020 school-year.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). A FAPE includes special education and related services designed to meet a child’s unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D) 34 C.F.R. § 300.13; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.347; Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-201 (1982). A school District offers a FAPE by developing an IEP and “providing personalized instruction with sufficient support services to permit a child to benefit educationally from that instruction.” Id. At 203; See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 175 (2TM Cir. 2012). An appropriate placement is one that is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v. Carter, 510 U.S. 7, 14 (1993); Frank G., v. Bd. of Educ. of Hyde Park, 450 F.3d 356, 364 (2d Cir.2006), cert. denied, —__ US. _, 128 S.Ct. 436, 169 L.Ed.2d 325 (2007). At an impartial hearing the Department of Education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. N.Y. Educ. Law §4404[1 ][c].

To meet its burden, the Board of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits and that the recommended program is the LRE for the child. Rowley, 458 U.S. at 188-189; 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]. The IEP must and the program must be “likely to produce progress and not regression” and “afford the student an opportunity for greater than trivial advancement.” M.O. v. N.Y.C. Dept. of Educ., 793 F.3d 236, 23 (2d Circ., 2015), citing M.H. v. N.Y.C. Dept. of Educ., 685 F.3d 217, 224 (2d Cir.2012).

An appropriate program begins with an IEP that accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits. See R.E, 694 F.3d at 175. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an individualized education program recognizing that “the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between. Endrew F. slip. op. No. 15-827 at 12 quoting Rowley, 458 U.S. at 202.

Under New York State law, the parents of a child who resides in New York State who is classified as a student with a disability and who attends a nonpublic school may file a request in the district of location where the nonpublic school is located for educational "services" for the child (Educ. Law § 3602-c[2]). "Services" includes "education for students with disabilities," specifically, special educational programs designed to serve persons who meet the definition of children with disabilities set forth in Education Law § 4401(1). See Educ. Law § 3602-c [1 ][a], [d]); Application_ of the Board of Education Lewiston Porter Central School District, Appeal. No. 18-088. Upon the timely filing of such a request the district of location's CSE must review the request for services and "develop an [[ESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]." Educ. Law § 3602-c [2][b][1]); Application of the Board of Education of the Lewiston Porter Central School District, Appeal. No. 18-088.

The IDEA provides that a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in the due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 CFR 300.508[d][3][i], 300.51 1[d]; 8 NYCRR 200.5[j][1][ii]), or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing. 20 U.S.C. § 1415[c][2][E][i][1I]; 34 CFR 300.508[d][3][ii]; 8 NYCRR 200.5[;][7][i][b]; e.g., N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 584 (S.D.N.Y 2013)]; see K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 87, 2013 WL 3814669 (2d Cir. July 24, 2013); Application ofa Student with a Disability, Appeal No. 12-184.

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There is no dispute that —_ is entitled to five periods per week of group SETSS in as per his October 15, 2018 Individualized Education Services Program (“IESP”’) (TR: 36-37, 73-74; Parent’s Ex. D at 5; IHO Ex. I at 1-2). There is also no dispute that the Department of Education failed to assign a SETSS provider to. The only questions are whether __ is entitled to 1:1 SETSS as opposed to SETSS in a group as per his most recent IESP and whether the parents are entitled to an enhanced rate for °s SETSS. has been receiving services from for at least two years (TR: 56). —’s mother, , testified that receives 1:1 SETSS because he is delayed in certain subjects and does not do well in a group (TR: 48-49). believes that the 1:1 SETSS has been successful as his marks and academics were poor and are now “picking upa little bit.” did not recall whether has ever received SETSS in a group. Nor could she recall when she contacted for services, although she testified that it was at the beginning of the year, possibly in September (TR: 49-51). testified that called ten prospective SETSS providers who were either busy or were not able to provide services to _ , but she did not remember when she made those calls. Nor did she recall where she got the names of those providers, stating that it was possibly from friends or the school. Some of the providers on her call list were female, although the school does not permit women to enter the classrooms (TR: 42, 52-53, 55-56; Parents’ Ex. C). is the Director of (“Agency”). All of the children that the agency works with require 1:1 SETSS because they do not do well in a group (TR: 29, 42, 44). is the teacher assigned to provide — with his bilingual SETSS for the 2019-2020 school-year.'^[1] The services are provided at ’s school and are based on __’s 2018- 2019 IESP (TR: 29-30, 36; Parent’s Ex. D). The School Building Leadership person at the agency speaks to Mr. weekly and Mr. provides the agency with session notes and progress notes (TR: AO).

At the beginning of the school-year holds a class for continued learning about education with a professional. The agency offers an array of supplies for the providers to use to with the students. Mr. uses books and reading games for. would also provide a supervisor to assist Mr. if he needed help. However, the principal at —_’s school is very helpful so he does not require consulting with an agency supervisor in his work with (TR: 72-78, 79-81, 85-86, 92-96).

Mr. has a permanent license to teach special education and a bilingual extension (TR: 94; Parent’s Ex. E at 4-6). Mr. met during the first two weeks of November 2019. Since then he has been working with — about five hours per week. He provides SETSS to from approximately 2:45 to 3:45 p.m. at the end of the studies and into the English part of the day. AfterSETSS _ returns to his English class subjects and the school day ends at about 5:25 or 5:30. Friday is a half day at the school and Mr. “doubles up” the SETSS on Thursday. He provides bilingual SETSS to individually because has problems focusing in groups. The agency pays him $80.00 per hour (TR: 35, 42, 48-49, 72-78, 79-81, 85-86, 92-96).

The SETSS is provided “mostly in English.” When — does not understand the words Mr. explains them to him in . Mr. bases his lesson plans on the goalsin ’s IESP (TR: 78). He is in contact with ’s English teacher at least once a week. has been having problems keeping up with the work in class and the teacher has recently reported that — was participating a little more in class and working on a better level than he had been previously (TR: 79). charges $150.00 per hour for ’s 1:1 SETSS. The rate includes monthly training at all providers are free to attend, monthly materials and office expenses, and takes into consideration delays in payments from the Department of Education while paying its teachers biweekly (TR: 44-45).

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I find that the Department of Education did not provide with a FAPE for the 2019-2020 school-year in that it did not assign a SETSS instructor to provide the services mandated on his 2018-2019 TESP.* Indeed, as noted above, Ms. , representing the Department of Education, agreed that is entitled to the five periods of bilingual SETSS services on that IESP, noting only that the IESP recommended SETSS in a group, not 1:1.

testified that she was not able to locate a SETSS provider for — and the Department of Education implicitly concedes that it did not locate a provider for . The parents therefore seek to have the Department of Education pay their provider at an enhanced rate. The Department of IHO Ex. II at 2). Education seeks to limit the rate for _’s services to less than the $150.00 asked by the agency (THO Ex, I, Ex. II).

The parents secured their own SETSS instructor from the Agency. I find that the evidence and testimony detailed above establishes that Mr. , the instructor assigned by the Agency to provide those services, is qualified to do so (Parent’s Ex. E at 4-6).^[3] ?

All of the witnesses testified that Mr. is providing — with 1:1 SETSS. Since the Impartial Hearing Request did not contest the appropriateness of SETSS in a group, the District argues that it had no notice of a claim that the parents were contesting a “group” service on the IESP and thus it did not have an opportunity to present witnesses or evidence on that issue (TR: 73-74; THO Ex. Tat 1). I find that any claim at the hearing seen be asserting that SETSS in a group is inappropriate for —_is not a viable issue in this case.

In any event, however, Ms. ; and Mr. all testified that the reason for the 1:1 SETSS is that — does not do well in a group. There was no evidence or testimony to explain the basis of that determination. In fact, testified that she did not know whether _ ever received SETSS in a group so it is not clear how it was determined that he could not do well in a small group as opposed to working with the 30 students in his classroom. While the parent did not contest the IESP’s recommendation of “group” SETSS in her hearing request, Ms. , the parent’s advocate, stated at the hearing that SETSS in group on an IESP can mean individual SETSS (TR:74; Parent’s Ex. A at 2). That positon would not require an allegation in the Impartial Hearing Request since the “group” mandate is not being contested.

Ms. was asked to include support for this theory in her Closing Statement but she did not do so. The Department of Education specifies that a “group” for SETSS cannot exceed eight students but it does not indicate a minimum number.

nyc. Absent any evidence to the contrary, I find that there is no basis upon which to conclude that the word “group” on the IESP differs from the Merriam-Webster dictionary definition of the word which requires “two or more figures” (TR: 100). See https:/Awww.merriamwebster.com/dictionary/group. > Mr. works for another, smaller agency, in the evenings when there are no more school hours available. That agency bills for Mr. ’s services at the Department of Education regular P3 rate but the agency told Mr. that it would try to get the rate enhanced (TR: 82-83, 87-89, 90-92). While the Department of Education cites this fact in its Closing Brief as support for a finding that is not entitled to an enhanced rate for Mr. ’s services (IHO Ex. I at 1, 3), I find this information to be irrelevant to this case and will not consider it in this Decision and Order.

The Department of Education also asserts that the parent should not receive an enhanced rate because she did not make a sufficient effort to find a Department of Education provider (HO Ex. I at 1-2). This argument is without merit. It is the Department of Education’s responsibility to assign a SETSS provider to a student. Significantly, the Department of Education did not submit any evidence or testimony that it provided — witha list of Department of Education providers. testified that the providers she called or attempted to call were recommended to her by either friends or the school. I agree with the District that’s testimony did not demonstrate a sincere effort to find a provider for at the regular rate, noting that her list included female teachers and ___’s school does not allow women in the classroom. However, the Department of Education had a statutory obligation to provide — the SETSS in conformity with his IESP and it cannot place that burden on the parent. Educ. Law §3602-c[2][a], [b][1]; see 20 U.S.C.§1414[d]; 34 CFR 300.320; Application of a Student With a Disability, Appeal No. 17-034.

Private SETSS providers are typically employed through agencies that have overhead and retain a portion of the rate charged as their own profit, leaving the teacher with substantially less than the full amount paid on behalf of the child for the service. In assessing what constitutes the fair market rate for 1:1 certified special education hourly teacher services it is instructive to consider the Special Education Itinerant Teacher (“SEIT”) rate set by the State Education Department. SEIT is, for preschool children, precisely the sort of services that families seek when they must contract for SETSS for a school-aged child -- a certified special education teacher who is contracted through an independent agency to work with the student. The State sets these rates and publishes them. The most recent publication is two years old. See http://www.oms.nysed.gov/rsu/Rates_Methodology/Rates/Interim/201516PreschSEITInterimRates. html

In 2017, these State-set rates for programs in this community averaged above $45.00 per half hour and went as high as $55.00. Accordingly, I find that, absent a showing of special cause justifying a higher rate, for the 2019-2020 school-year an hourly rate of $150.00 per hour for bilingual SETSS is not a reasonable determination of the current market rate of SETSS without further demonstration by the family.

The question then, is whether the parent and/or made a showing to justify charging $150.00 per hour for Mr. ’s services. I find that it did not. In making this determination I note that is paying Mr. $80.00 per hour. Mr. testified that he is a certified special education teacher and that he attends only the one professional development meeting held at the beginning of the school-year. He also testified that he does not use a supervisor from the agency for assistance, as the principal of _ ’s school is very accommodating to his needs. The only supplies that he uses from the agency are several books and reading games. While I agree that the parent is entitled to an enhanced rate for __’s bilingual SETSS due to the Department of Education’s failure to provide — with a SETSS teacher, I find that a rate of $150.00 per hour, almost double Mr. ’s salary, iS excessive.

In the absence of any evidence indicating otherwise and allowing for Mr. ’s salary and the overhead and preparation costs described by Ms. , I find that under the circumstances of this case a rate of $120.00 per hour for bilingual SETSS is a reasonable enhanced rate for the services provided to At this time I also take judicial notice that rates may be impacted by the current Covid-19 crisis. The social distancing mandates and the closure of schools to face-to-face instruction have rendered services such as SETSS particularly incongruous because they may only be provided remotely for students with attentional and management needs that might make an objective observer somewhat dubious about their efficacy. Nevertheless, the State Education Department has issued guidance for the near term at least, in a memorandum dated March 27, 2020, to the effect that distance learning may substitute in these circumstances for face-to-face services without modification to an IEP. This memorandum is supported by guidance from the US Department of Education. See http:/www.p12.nysed.gov/specialed/publications/2020-memos/nysed-covid-19provision-of-services-to-swd-during-statewide-school-closure-3-27-20.pdf.

ORDER

It is hereby Ordered that: 1) Upon receipt of this Decision and Order The parent/ is to provide proof of the number of hours of bilingual SETSS that Mr. provided to starting with the specific date in November 2019 that Mr. began working with until the end of the 10-month 2019-2020 school-year; 2) Within 30 days of receipt of those invoices the Department of Education is to pay for those services in an amount not to exceed $120.00 per hour; 3) Irrespective of (1) and (2) above, payment for the period of time that the schools have been closed due to the Covid-19 crisis shall be issued in accordance with the most updated guidelines and requirements set by the State Education Department.

Dated: May 26, 2020

Rona Feinberg, Esq.

Impartial Hearing Officer

EXHIBITS

A. DEPARTMENT OF EDUCATION: The Department of Education did not submit any documents into evidence. PARENT: Exhibit | Date Name #pages TASI9 Due Process Complaint 2 pages

B. Notice of Appearance C Undated List of Providers called handwritten I 6/1/19 1 page

D. | TESP 10/15/19 8 pages

E. | Affidavit andlicenses from (Agency) providers 10/30/19 6 pages

HEARING OFFICER

Exhibit I DOE Closing Statement May 18, 2020, 4 pages

Exhibit I Parents’ Closing Statement May 17, 2020, 2 pages

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act. The regulations governing appeals are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

As those Regulations detail, before filing an appeal, if either party intends to appeal the decision, a Notice of Intention to Seek Review shall be personally served upon the opposing party before the Appeal itself is filed, no later than 25 days after the date of the decision sought to be reviewed.

The Appeal itself must be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete.

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.

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Footnotes

[1] ‘Ms. submitted an Affidavit indicating that Mr. is working with — from July 2019 to June 2020 (Parent’s Ex. Eat 4). At the hearing she corrected her Affidavit and testified that Mr. began working with — in September 2019 (TR: 38-39). Mr. , however, testified that he did not meet — until sometime in November 2019 and I credit his testimony accurate (TR: 74-76).

[2] The Department of Education did not develop an IESP for the for the 2019-2020 school-year and the services are based on his IEP for 2018-2019 (TR: 20, 29;

[3] Mr. works for another, smaller agency, in the evenings when there are no more school hours available. That agency bills for Mr. ’s services at the Department of Education regular P3 rate but the agency told Mr. that it would try to get the rate enhanced (TR: 82-83, 87-89, 90-92). While the Department of Education cites this fact in its Closing Brief as support for a finding that is not entitled to an enhanced rate for Mr. ’s services (IHO Ex. I at 1, 3), I find this information to be irrelevant to this case and will not consider it in this Decision and Order.