New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 187910

Student's Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearing: September 23, 2019

November 13, 2019

December 16, 2019

January 23, 2020

Record Closed Date: January 27, 2020

Hearing Officer: Dora M . Lassinger

The parents of . requested an impartial hearing on September 5, 2019, alleging that the school district has not developed a new IESP for the student since November 3, 2014, and requesting pendency in that IESP. The parent requested funding for SETSS (five hours per week), at an enhanced rate, for the 2019-2020 school year. The parent also requested related services authorizations (“RSA”s), for the recommended related services. (Par. Ex. A). ^[1]

I was designated to hear this matter on September 13, 2019. A pendency hearing was held on September 23, 2019.

By agreement of both parties, I ordered that effective September 5, 2019, and during the pendency of all due process proceedings, the Department of Education (“DOE”) shall continue to provide the student with the following services.

1. Special Education Teacher Support Services, 5 periods per week, in a group, direct service ( );

2. Occupational Therapy, two times per week for thirty minute sessions, individually;

3. Speech/language, two times per week for thirty minute sessions, individually

( ).

A hearing on the merits was held on January 23, 2020. The DOE did not present any evidence at the hearing. (Tr. p. 19). It argued that the enhanced rate sought by the parents for SETSS per hour) was excessive. (Tr. p. 23).

The IESP dated November 3, 2014, recommended Special Education Teacher Support Services (“ SETSS”) five periods per week ( ), group service, Occupational Therapy (“OT”) twice per week for thirty minute sessions individually and Speech/Language Therapy (“SLT”), twice per week for thirty minute sessions, individually ( ).

The student was classified with a Learning Disability. (IHO Ex. B). The parent requested continuation of those services for the duration of the 2019/2020 school year; and the DOE did not oppose that request. (Tr. p. 23).

The November 3, 2014 IESP references Intelligence testing (with an unspecified date)

indicating that the student’s

. (Par. Ex. B).

., the parent, stated, in an affidavit dated January 21, 2020, that the CSE has not held an IESP meeting since November 3, 2014. In August, she attempted to secure a SETSS provider for her daughter by calling five providers from the DOE’s registry; but none were available to provide SETSS. (Par. Ex. G, C; Tr. p. 27). She stated that her daughter is in the . (Par. Ex. G2).

After failing to secure a provider from the DOE’s registry; she contacted “ ”, an agency which secured, , as her daughter’s provider. (Par. Ex. G). She wrote that she had not made any payments to ; but understood that she was responsible for any balance not paid by the DOE. She stated that the student has not received any of her related services during the current school year, or an RSA for those services. (Par. Ex. G). She testified that she has not received any bills from . (Tr. pp. 26, 30).

The parent also introduced into evidence a progress report prepared by on November 14, 2019 (Par. Ex. F). is certified to teach Students with Disabilities,

, and has applied for certification to teach students through . No evidence was submitted that she is certified as a teacher, or that she is qualified to teach an student. (Par. Ex. E). wrote that the student’s . She has a difficulty time with . recommended an increase to 10 hours of SETSS, on a one-to-one basis, so that the student can be successful in a . (Par. Ex. F)

The parent submitted an affidavit from , the Educational Director at “ ”; stating that she is a licensed special education teacher with a extension in . She is also trained in . She stated that ” ” charges per hour for SETSS, and stated that this is within the general market rate for 1:1 SETSS in the New York City area (quoting rates of charged by other agencies for similar services). She stated that this rate includes direct and indirect support, educational materials and preparation of progress reports. (Par Ex. H). stated that is fluent in , and is paid per hour for her services. She wrote that is supervised by , a certified special education teacher with extensive training in literacy instruction. She wrote that the student has made to . (Par.

Ex. H). She testified that the parent is responsible for

. (Tr. p. 32).

, the CEO of stated the agency is providing 5 hours per week of services to the student for the period from September 9, 2019 through June 30, 2020, at a rate of per hour. (Par. Ex. D).

. produced a written agreement with for provision of special education services. The agreement obligated her to pay a registration fee of in exchange for screening and supervision of providers, assistance with CSE meetings, representation at

Impartial Hearings, progress reports and free parent training seminars. The agreement requires the parent to make seven attempts to locate a P3 provider, participate in a resolution session and appear and testify at an impartial hearing. There is no mention in the contract of any fee for the actual tutoring services. There is no mention of an hourly rate of per hour. The parent is not seeking reimbursement for the fee which she paid the agency. (Tr. pp. 29, 34).

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, M assachusetts, 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 DOE did not present any evidence that it implemented the IESP; and the parent’s testimony that she was unable to secure a provider of SETSS at the DOE rate was not disputed. It is also undisputed that the student has not received any of her related services.

SETSS

Although the parent signed a contract with , nothing in the contract obligates her to pay for the tutoring services which the agency is providing; and certainly not at the rate of per hour. See Application of a Student with a Disability, Appeal No. 16-044. Although testified that the parent is responsible for paying the fees for tutoring, the parties have a written agreement which does not state that the parent is responsible for the tutoring fees. I find that if the agency intended to hold the parent responsible for the fees for the tutoring services, it would have included this in the written contract.

W hile wrote that is within the range of fees charged for private tutoring services; it is not known what the qualifications are of the special education teachers who bill at that rate. The record indicates that , the provider selected by the agency, is not certified to teach at the level, or for instruction. The agency pays her per hour. I find that an appropriate level of compensation for the services of is per hour; which allows for the additional services provided by the agency.

Related Services

Although I previously ordered the DOE to provide the student with her related services, the student has not received any of those services during the current school year, or an RSA for those services. There being no objection from the DOE, I will order that the DOE fund all of the SLT and OT the student should receive during the 2019/2020 school year (twice per week for 30 minute sessions, for each service; or 40 hours for each service ) by a provider of her choosing, at the market rate.

Evaluations

Although the parent has not requested evaluations, I find that they should be ordered.

states that the student requires additional services, and that setting. The student has not been evaluated for at least . The CSE should perform a complete updated evaluation, and then reconvene to review the student’s special education needs.

ORDER

For all of the foregoing reasons, it is hereby ordered as follows:

1. The DOE shall fund SETSS provided to the student, during the 2019-2020 school year (five periods per week), at the rate of per hour, upon presentation of proof that the services were actually provided by a certified special education teacher.

2. The DOE shall fund 40 hours of SLT ( and 40 hours of OT, by a provider of the parent’s choosing, at the market rate;

3. The CSE shall perform a complete re-evaluation of the student, including a SLT and OT evaluation, within 45 days of this order, and reconvene within 20 days following the completion of the evaluations to develop an appropriate program.

Dated: February 1 , 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 M essenger Center.

DOCUM ENTATION ENTERED INTO THE RECORD

Parent’s Exhibits

A. Impartial Hearing Request, 9/5/19, 5 pp.

B. IESP, 11/3/14, 12 pp.

C. Parent Outreach Notes, Undated, 1p.

D. Affidavit of Services, 12/19/19, 1p.

E. Provider Certification, undated, 1 p

F. Progress Report, 11/14/19, 6 pp.

G. Affidavit of Parent, 1/21/20, 3 pp.

H. Affidavit of Educational Director, 1/21/20m 5 pp.

I. Contract, 7/11/19, 2 pp.

Impartial Hearing Officer

I. Interim Order, on Pendency, 9-23-19, 3 pp.

III. Case extensions, various dates, 3 pp.

III. Order Denying Consolidation, 9/17/19, 1 p.

Footnotes

[1] At the hearing, the parent also requested that the DOE fund a bank of 40 hours each of Speech/Language Therapy and Occupational Therapy, at the market rate, due to its failure to provide those services during the current school year. (Tr. pp. 21-22). The DOE took no position with respect to this request. (Tr. p. 24). The parent also requested that the CSE convene an IESP review to consider the student’s need for additional educational support. (Tr. p. 22).