New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 187208

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearing: October 4, 2020

December 17, 2019

January 21, 2020

March 4, 2020

Actual Record Closed Date: April 5, 2020

Hearing Officer: Judith Schneider, Esq.

APPEARANCES October 4, 2019 December 17, 2019 January 21, 2020 March 4, 2020

For the Parents:

Attorney Pending Admission

For the District:

District Representative

For the Parents:

Attorney (via telephone)

For the District:

district Representative

For the Parents:

Attorney (via telephone)

For the District:

None

For the Parents:

Attorney

Mother

Educational Director (via telephone)

For the District:

District Representative.

On October 4, 2019, December 17, 2019, January 1, 21, 2020, February 12, 2020 and March 4 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 parent by correspondence dated August 30, 2019 (Ex. A) I was appointed Impartial Hearing Officer on September 19, 2019 and was available to conduct a hearing within 14 days of appointment. The parent requested an order concerning the student’s entitlements during the pendency of the matter and a hearing for that purpose was conducted on October 4, 2019. By order dated October 22, 2019, the following was ordered:

SETSS: 5 hrs. per week (1:1) Speech Language Therapy: 2x30 min. per week (1:1) Counseling: 1x30 min. per week (1:1) Occupational Therapy: 2x30 min. per week (1:1) Ex. IT A scheduled prehearing conference was conducted on November 13, 2019 and I was informed that the district was investigating this matter with regard to settlement and requested extension of the compliance date. A hearing concerning the status of this matter was at that time scheduled for December 17, 2019. (Ex. /) After several hearings limited to status issues an evidentiary hearing was scheduled and conducted.

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. (T11,14, 15,, 17, 66, Ex. J)

The current compliance date is April 15, 2020. The record closed on April 5, 2020 upon my receipt of the hard copy of the final transcript.

Positions of the Parties

The parent asserts that: 1) the DOE has failed to develop an educational plan since 2016 and that that program included a recommendation for 5 periods of SETSS; 2) the parent has obtained those services since then through the impartial hearing process;

3) after a hearing concerning the 2017-2018 school year at which the district presented no evidence a hearing officer, in a decision which was not appealed, ordered the request periods at a rate of $150;

4) the student continues to require the requested service a rate of $150 for the $2019-2020 SY services. (T22, Exs. A, B) The parent also seeks authorizations for related services previously recommended. Further, the parent asserts that the district has submitted no evidence in support of its claims concerning the appropriate or fair market rate and therefore has not met what the parent claims is its burden. (T22-32, 58-60)

The district conceded that it failed to develop an IESP for several years including the 2019-2020 SY and that it did not make a provider available at the commencement of this school year. (T21) Further it is not contesting the student’s need for 5 periods per week (Bilingual SETSS). (T28, 30, 61) However, it asserts that the rate requested is not a reasonable rate and proposes that reasonable rates are no more than $125 (Bilingual SETSS) and $110 (monolingual SETSS). (T21, 61-65) The district did not dispute the request for RSAs for related services as requested.

Accordingly, the sole issue for my determination is the rate for the SETSS services provided. (T30)

Cases Presented

The DOE presented no evidence, testimonial or documentary. The parent submitted documents for admission into evidence (a list of documents in the record is appended) and presented the testimony of , educational director of ( “the director’’)

Findings of Fact and Conclusions of Law

It is undisputed that the district has failed to provide a FAPE for the 2019-2020 SY. The parent unilaterally obtained SETSS services from the agency, . (Ex. D) The DOE does not dispute the student’s need for that service. The sole witness in this matter, the agency’ educational director, testified concerning the rate and the services provided by the agency. That testimony was unsupported by any documentary evidence concerning the agency’s costs and profits and fees received by other agencies for similar servicers.

Relevant to the agency’s fee was the following testimony:

The agency has been providing 5 hours per week of SETSS for this student had the rate of $150 per hour for 4 school years (inclusive of the 2019-2020 SY. (T36-37) Its rate includes consideration of overhead, supervision, rates paid to direct providers, professional development and educational resources for the student. (T37) The student’s SETSS provider is an experienced certified special educator who is paid $85 per hour by the agency for this student. (T3, 41, 50) Her supervisor is a certified special educator who provides service regarding this student at the student’s school on an as needed basis but usually averages once per week. (T41,52) The agency serves some 30 schools and has 6 full time and 2 full time supervisors servicing them on the same basis. (T51, 52) There are close to 200 providers providing services to approximately 600 students. (T47, 49) The director was unable to estimate how many service hours in total were provided by the agency. (T49) Providers are paid between $75-100 per hour and $100 is paid if a student requires a lot of behavior interventions. (T50) Professional development sessions from non-agency employees are provided by the agency generally monthly (T38-39) Certain educational resources were purchased by the agency for this student’s sole use and other agency purchased resources are available on a shared use basis. (T37-38, 43-44, 53-55) The agency’s rate of $150 is comparable to other agencies providing similar services which generally charge from $150-200 per hour. (T40) The agency sometimes accepts a lower rate than that requested here depending on the circumstances of each case. And its rates are between $115 and $175. (T44)

The Progress Report submitted describes the Bilingual student as personable and eager to please who frustrates easily who is performing below grade level in both social and academic areas. No particular behavioral difficulties were noted. (Ex. C)

The agency seeks a rate which includes a very substantial mark-up” and which the district claims is not reasonable. Even in the event of substantial district failure, as occurred in this case, the rate for a parent selected provider must be reasonable. See e.g Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993). 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), 1415G)(2)(C)(ii1); 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. I find that the record here does not support a conclusion that the rate requested is reasonable in relation to the cost of delivering that service or that the rate is comparable to what is actually generally paid for similar services. However, the district has not disputed the testimony that the same service has been provided to this student for some 4 years at the requested rate and there is no indication of any prior dispute by the district concerning the rate. Further, although the district has indicated that $125 would be reasonable in the circumstances here it has presented no evidence to support that figure. I conclude that the $150 per hour rate is reasonable in the particular circumstances of this case. Accordingly, I do not address the parent’s other claim in support of the request.

ORDER

The student is entitled to receive from the DOE for the 2019-2020 SY:

SETSS: 5 sessions. per week (1:1) (Bilingual ) at the rate of $150 per hour; Speech Language Therapy: 2x30 min. per week (1:1) (Bilingual ) Counseling: 1x30 min. per week (1:1) (Bilingual )

Occupational Therapy: 2x30 min. per week (1:1)

The district shall issue the authorizations to provide the foregoing.

Dated: April 15, 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 Messenger Center.

EXHIBITS

None

A. Parent Impartial Hearing Request. 8/30/19, 2 pgs. Findings of Fact and Decision, 4/19/2018, 7 pgs. 0OO89 Progress Report, 11/14/2019, 5 pgs. Affidavit regarding service costs, 2/5/20, 1 pg. Impartial Hearing Officer I PHC Summary IT Pendency Order