New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 186010

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearing: November 8, 2019

December 10, 2019

January10, 2020

Actual Record Closed Date: January 25, 2020

Hearing Officer: Judith Schneider, Esq.

APPEARANCES November 8, 2019 December 10, 2019 January 10, 2020

For Parent:, Advocate (via telephone) For District:, District Representative For Parent:, Advocate For District:, District Repreentative For Parent:, Advocate, Parent (via telephone),, (via telephone) For District:, District Representative

On November 8, 2019, December 10, 2019 and January 10, 2020, I conducted an Impartial Hearing at the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C.

§1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

Procedural History

The proceeding was initiated at the request of the parents (hereinafter “the parent”) by correspondence dated August 27, 2019 (Ex. A) I was appointed Impartial

Hearing Officer on September 4, 2019. That matter was designated as .

A scheduled prehearing conference was conducted on October 16, 2019 and a hearing was scheduled for November 25, 2019. (Ex. I) The complaint concerned the 2018-2019

school year (“SY”).

By correspondence dated October 11, 2019, the parent filed a hearing request concerning the 2019-2020 SY. By order dated and submitted for issuance on November 4, 2019 but not issued by the Impartial Hearing Office until November 21, 2019, I granted consolidation of the two matters. (Ex. II) A hearing was held on November 8, 2019 at which, among other things, the parties were informed of the consolidation and a hearing was scheduled for December 10, 2019. The November 25 hearing was thereafter adjourned at the request of the parties.

Hearings were conducted on December 10, 2019 and January 10, 2020. Although there were various references to a pendency order having been issued review of the record establishes that that did not occur and that there was no pendency order issued by me (T25, 34)

The parties moved to extend the compliance date on various occasions in light of settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript and issuance of the decision within the permitted time period. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. (T. 6-7, 10-13, 17, 93, Ex. 1)

The current compliance date is M arch 2, 2020. The record closed on January 25, 2020, upon my receipt of the final transcript.

Positions of the Parties

The sole issue in this matter at this time is the parent’s claim that the student was entitled to 8 periods per week of SETSS for each of the 2018-2019 and 2019-2020 SYs

(10 month programs), that the district did not identify a provider and that authorizations for payments of $150 per hour for SETSS provided by (“ ” or “the agency”) should be ordered (T21-26, 92-93, Exs. A, I))

The district does not dispute the student’s entitlement to 8 periods per week of SETSS for the 2 SYs but asserts that the hourly fee requested is unreasonably high.

^[1]

(T26, 92)

Cases Presented

The district presented no evidence in this matter. The parent submitted documents which were admitted into evidence (a list of documents in the record is appended) and the testimony of: , the president of ; the student’s mother (the parent”)

Findings of Fact and Conclusions of Law

W ith regard to this matter in which the student has not been unilaterally placed, the DOE has the burden of proof with regard to all matters. SRO 11-053. N.Y. Education Law §4404[1][c]. Further, I note that under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006); Appeal No. 08-052.

In this matter the district does not contest the student’s entitlement to 8 periods a week of SETSS in each of the 2 years specified. Rather the sole district claim is that the rate sought is excessive. I note that no evidence has been submitted to indicate that the DOE “authorized “rate is appropriate for the services provided. I therefore consider the parent’s request for a fee of $150 per hour.

The evidence in this matter shows the following concerning the services provided:

For the 2018-2019 and 2019-2020 SYS the student was in the 11th and 12th grades, respectively at (“ ”), a religious private school. (T31, Exs. G,

L) For the 2018-2019 SY the parent sought assistance from (

“ ”), at that time a Assistant Principal to obtain SETSS services. (T34, 37-39, 43,

59) At that time staff contacted all providers on the then current DOE list but were unsuccessful in identifying any provider willing to deliver the services. (T34, 82, Exs, D,

E) Services were then provided through . (Ex. G) AS left employment during the 2018-2019 SY and became president of , a “non-profit agency” which provides various services for children including SETSS, with which he had previously been associated in another capacity. (T56-58) For the 2019-2020 SY the parent made efforts to locate a provider but was unsuccessful and obtained services with assistance from . (T3-35, Ex. K) The parent had no knowledge as to the agency which provided the services or the rates charged. (T39, 43)

During the 2018-2019 SY the student received 8 periods per week of SETSS.

(T52). During the 2019-2020 the student is receiving only 4 periods a week because the remaining periods could not be fit into his class schedule (6 days per week with 4 7:25AM -5:45PM days) and although an afterschool provider was sought no one was available. (T53-54, Exs. F, L)

The parent had no recall as to the name of the provider/s in the 2018-2019 SY.

(T34, 36 ) had no recall as to the identity of 2018-2019 providers but believed that there were two for this student and that one was named . (T51-52) He believed a provider for the 2019-2020 SY was “ ” but was not sure of that or if there was more than one provider. (T52) He had no knowledge as to the credentials of the student’s providers but believed that a 2019-2020 provider had a high school special educator credential (T80 ) Agency providers are generally paid about $60 per hour. (T65 )

has a role in supervising provider activities. (T61, 77) is not certified or licensed as an educator. (T49) The student’s provider currently has a supervisor provided by the agency who is at throughout the week, whose supervision includes ensuring student attendance, parent communications and general coordination and whose supervision of this student is “daily” and is available as needed. (T75, 83-84). He is also does daily supervisory work for and is also paid by . ( T88-91) had no knowledge as to his credentials. (T66, 91) No indication of the time spent actually supervising the provider of this student was provided.

Approximately 40 students are serviced by approximately 7 agency providers. (T62, 69) could provide no information about the total number of students serviced by the agency with SETSS providers and estimated they were in 3 schools (T63-64)

The only specific professional training described as having been completed was provision of college training/testing to obtain high school special education certification.

(T67) The agency is working on creating a day of training on working on student’s with certain disability issues. (T67-69) W ith regard to materials stated that the agency generally provides whatever the provider needs including computers but did not identify any material/equipment provided in connection with this student. (T74)

described the student as “extremely easily distracted and very difficult to control”, that any distraction would pull him away, that he did not respond to discipline well and was very difficult to control in that setting and procrastinated but that nevertheless with the help provided the student had progressed and was able to pass in various areas. (T70, 72-73, 85. 87-88) I note with regard to characterization of the student’s needs that the there is no indication of the severity of management need described in the 2018-2019 IESP and that was a participant in that review. (Ex. C)

The parent seeks a fee that is approximately 150 % more that the fee received by the providers. I find that the record does not support a conclusion that that is reasonable in view of what is claimed to have been provided by the agency as discussed above.

Further, I note that I find no basis for further enhancement based upon unusual needs requiring special skills/efforts and that I find no basis for a conclusion based upon the record here that such skills/efforts were provided here.

The student is receiving bilingual services and the rate provided for the period prior to the 2018-2019 SY was $100 per hour. (T25, Ex. I)

In foregoing circumstances I find no basis for a conclusion that a rate above $110 per hour is reasonable for the provision of services to this student notwithstanding the district’s failures in this matter. See e.g Florence County Sch. Dist. Four v. Carter, 510

U.S. 7 (1993).

ORDER

The student’s entitlement to 8 periods per week of SETSS (Bilingual ) for each of the 2018-2019 and 2019-2020 SYs (10 month program) is not contested. The rate for that service shall be $110 per hour. The district shall issue appropriate authorizations upon receipt of satisfactory evidence that the providers were appropriately credentialed and that the service was provided for each day claimed.

Dated: January 27, 2020

__________________________

JUDITH SCHNEIDER, 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 M essenger Center.

EXHIBITS

None

---

Footnotes

[1] The district disputes the parent’s claim that an IESP for the 2019-2020 SY was not issued but presented no evidence with regard to that. However, the district stated that the SETSS services recommended in that IESP were the same as provided in the prior year (Ex. C) and therefore was not contesting entitlement to that. (T26-28)