New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 187968

Student's Name:

I

District Number: L

Hearing Requested by: Parent

Dates of Hearing: June 15, 2021

Record Closed Date: December 15, 2021

Hearing Officer: Gary D. Peters, Esq.

INTRODUCTION

On September 5, 2019, the Parents filed adue process complaint under the Individuals with Disabilities Education Act (the "IDEA") [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the "DOE").

NAMES AND TITLES OF PERSONS WHO APPEARED

June 15, 2021

Parent

Advocate

Educational Director/

For the Department of Education:

DOE Rep.

School Psychologist

PARENT'S EVIDENCE

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

B. Program Description, undated, 12 pp. C. Parent Retainer, 9/2/19, 3 pp.

D. IESP, 8/26/16, 18 pp

E. Affidavit of Testimony and Services, 4/29/21, 4 pp.

F. Parent Outreach, 2019/2020, 1pp.

G. Provider License undated, 1 pp

H. Progress Report, 2/13/20, 5 pp

I. Parent's Affidavit in lieu of Testimony 5/3/21, 5pp.

DOE'S EVIDENCE

1. IESP, 6/10/19, 10 pp. DOE

INTRODUCTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding aspecial education program, Students with Disability, New York City Impartial Hearing Case 187968. The hearings were held either remotely or at the impartial hearing office, New York City Department of Education, at 131 Livingston Street, Brooklyn, New York. At the hearing, their Advocate represented the Parents/Student; , DOE Designee represented the Department of Education.

BACKGROUND

The student is a student with adisability and is classified as speech/ language impaired. She is enrolled in aspecial education program at aprivate school and has received SETSS, 8 times per week in aseparate location pursuant to an IESP dated 8/26/16.

THE DOE'S POSITION

The student is classified with adisability of speech and language impairment. For 2019/2020 he was attending a private school and was parentally placed.

On June 10th, 2019, there was an IESPmeeting in order to review the student's educational func ti o ni ng and offer him an educational program. All mandated participants were present and the meeting resulted in the recommendation of eight periods of Special Education Teacher Supported Services (SETSS) as well as related services, including speech and language therapy, occupational therapy and counseling.

The DOE asserts that it offered the student an appropriate, reasonable educational program and that he would be able to demonstrate educational progress. The DOE is in agreement that the student was in need of educational support program of eight periods of SETTS; that the DOE reached out to the parent and offered an enhanced rate for the service and the parent did not accept it.

The DOE maintained that it will establish that the rate for enhanced rate service that was offered to the parent would be adequate to secure a provider'savailability at that rate. Overall, it is the District's position that it fulfilled its responsibility toward the student.

Additionally, the school that the student was attending was a 10month school program. However, the Parent is requesting a12-month service. It is the DOE's position a12 month program is not appropriate for the student who is attending a10-month private school and recommended for SETSS for eight periods a week.

stated that the DOE concedes that the student required SETSS, eight periods per week and that the only is regarding the reimbursement rate.

PARENT'S POSITION

On 8/16/17 the CSE convened to create an IEP/IESP for the student. The parent maintains that the IESP created is procedurally and substantively flawed and that the student is being denied aFAPE for the 2019-2020 school year. The Parent asserts that the DOE failed to develop an IESP for the 2019-2020 school year for her daughter in the same manner and with the same contents as is developed for students within the NYCDOE.

Furthermore, the parents have attempted to locate a SETSS provider but have not found a licensed and bilingual special education teacher willing to work with the student at the DOE's rate. Parent is seeking an award for SETSS at an enhanced rate in for the 2019-2020 school year at the rate of $170.00 per hour.

THE DOE'S CASE

Dr. testified that she is a school psychologist in L_ and that her role is that of a resolution manager. She has been working as a psychologist at the DOE for approximately 25 years and as a resolution case manager for two years. Her duties and responsibilities as a resolution case manager is "to take a proactive approach for Due Process Complaints (DPC) that are filed within ; she works closely with the litigation team and the District representatives. The team reviews the DPC's filed to determine if it is appropriate for resolution, to avoid litigation and try to service the children more efficiently.

The witness stated that she collaborates with different agencies which provide SETSS services. The protocol is that "once we receive a DPC", she would researchthe case by reviewing the child's last IEP and information in SESIS"; more particularly, recent evaluations, reports and progress reports. Depending onwhat the challenges are, a determination is made with respect for an enhanced rate that would beoffered.

The witness stated that she considers the general market rate in the District's venue; she has worked withapproximately 20 to 25 agencies; some of the agencies have providers with bilingual certification orbilingual education.

The witness stated that she first became familiarwith the student through aDPC that was filed at the beginning of the 2019 school year. She reached out to the Parent's advocate to offer the possibility of a resolution. She stated that she as had successful resolutions at the rate of to ; in certain circumstances, "we did resolve at ahigher rateat It would depend onwhether the child was bilingual or if there were specific challenges that the child was presenting with. Lastly, there were agencies that would service the child at the rates as referenced herein.

Upon cross examination, the witness named afew agencies and providers that she worked with.

She conceded that she didn't participate in theIESP meeting; her role "only comes into play afterwards". Regarding this student's needs, basedupon the IEPfrom the 2019-2020 schoolyear, she stated the student has an extremely lowfull-scale IQ. He is eligible for enhanced rate for services on the higher rate level as he is bilingual.

For the 2019/2020 school year, the witness stated that there were many agencies that accepted the rate o f , for students that presented with "this type of profile".

PARENT'S CASE

The Parent provided an affidavit in lieu of testimony from , wherein, she stated that she is the Educational Director at , a private agency that provides special education services, including SETSS, to special education students in the New York City who are placed in a mainstream setting. The affiant stated that "we provide one-to-one specialized teaching and advocate for students in their settings; the special education teacher program is a comprehensive, individualized program that is research-based".

Each student receives individualized special education instruction that he or she needs in order to make appropriate progress. She stated that she has been the Educational Director for five (5) years; in her role as Educational Director, she hires all of the special education teachers, supervisors, consultants and trainers. She also researches the latest techniques for teaching children, and makes sure that "we have the supplies they need to meet our students' needs". She communicates with the parents to better understand their children's learning needs. During the intake process, she reviews prospective student evaluations, progress reports, and other clinical materials to determine if the agency can provide appropriate services. After conducting the review, she assigns an appropriate educator to the student.

The rate for " " services is per hour. She has communicated with other agencies in the industry to get abetter understanding of what other agencies charge in our field. " " rate for SETSS services is within the general market rate for the services in the greater New York City area. The rate includes one-to-one supervision, educational resources, professional development and materials, employment taxes, administrative costs, and overhead. " " offers monthly professional development training to its providers. The training addresses special education teaching methods and research-based teaching strategies. The agency supplies text hooks, specialized learning aids, books and multi-sensory materials. The witness was familiar with the student as he received special education services with providers. , a NYS certified special education teacher was assigned to work with the student. She is trained in Literacy Programs extensive experience working with students who require academic and social emotional supports. The Educational Supervisor overseeing 's work is , who is a NYS certified special education teacher with 25 years of experience in working with students in both general education and special education settings and is a board certified behavior analyst. " " provided professional development to . In addition to providing direct one-to-one services, she also "prepared for sessions, creates goals, writes progress reports," and meets with teachers and parents.

was paid per hour for his work with the Student. The difference between the rate charged by the agency and the payment to the providers is the result of many of the items; weekly supervisions, profession development, educational resources, employment taxes and administrative overhead costs.

The student's provider, supervisor, and teacher identified programs which are most appropriate for him as he struggled with academic, social and emotional concepts. Goals and progress was measured through quarterly assessments and progress reports, consistent meetings with the provider and support staff, observation of the Student in the classroom, and daily session notes.

The Student has shown progress with his SETS service provider. However, due to his delays social and academic areas, he continues to require SETSS on a1:1 setting.

The estimated amount charged for these services from September 9, 2019 through June 30, 2020 would be , based on40 weeks of service, 8 hours per week, at arate of per hour.

Upon cross examination, the witness conceded that she did not provide direct services to the student during 2019/2020 school year. The student placement in private school correlates to 10th grade. She conceded that her license is kindergarten through 6th grade. The student's direct teacher was L_J_J. The witness stated that her agency paid per hour to the provider for services rendered to the student. is certified as a special education teacher. She has worked with children and young adults; students with disabilities and individuals with special needs. Her understanding and experience of adolescents with learning disabilities and her skill set appropriate to work with the student.

The witness stated that despite the fact that her certification is Kindergarten – 6th grade that she has worked for the DOE directly in the past with students in highschool. She has been ateacher and has the training and the skills to recommend academic sessions to the students.

The agency bills at the rate of per hour; this includes the teacher's hourly rate at per hour, the supervision, the resources, materials, professional development, and administrative overhead costs that the agency incurs to operate.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This hearing was requested pursuant to the Individuals with Disabilities Education Act (the "IDEA") (see 20 USC § 1400 et seq.). "Congress enacted the IDEA 'to ensure that all children with disabilities have available to them a free appropriate public education… designed to meet their unique needs… [and] to ensure that the rights of children with disabilities and parents of such children are protected" (M .H. v. N. Y. C. Dept. of Educ., 685 F3d 217, 223 (2d Cir. 2012) (citing 20 USC § 1400(d)(1)(A)-(B))). Further, "a school district's program must provide 'special education and related services[,]' tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits." (M .H. v. N.Y.C. Dept. of Educ., upra, at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105,107 (2d Cir. 2007) (internal citation omitted)).

School districts are required to formulate an Individualized Education Program (IEP) for each student with adisability in order to deliver appropriate services to that child. It is "[t]he centerpiece of the IDEA's educational delivery system" (M .H., upra, at 224 (quoting D.D. ex rel. V.D., 465 F3d at 507)). M oreover, "for achild's IEP to be adequate, it must be "[']likely to produce progress… and afford the student with an opportunity greater than mere trivial advancement'" (Id. (quoting T.P. ex rel. S.P. v. M amaroneck Union Free Sch. Dist., 554 F3d 247, 254 (2d Cir. 2009).

It is fundamental that the CSE's placement recommendation must be based upon the student's needs (34 CFR §300.116(b)(2), and that the IEP must be based upon current evaluations (SRO 11-126 at 20). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services." SRO 08-052; SRO 08-060 (citations omitted).

Once it has been determined that astudent has been denied aFAPE, hearing officers have broad equitable powers to fashion aremedy that is appropriate to address the student's needs, based upon the unique facts of the case. Application of a Student with a Disability, Appeal No. 08-052 at p. 17-

18 (July 16, 2008). "Compensatory education awards are based upon finding of the denial of FAPE, and they require additional services, beyond the prospective entitlement to an appropriate educational program, to address deficits caused by delay orfailure to offer educational services to an eligible child." Terry Jean Seligmann & Perry A. Zirkel, Compensatory Education for IDEA Violations: The Silly Putty of Remedies, 45 Urb. Law. 281, 282 (W inter 2013) (citing Perry A. Zirkel, The Remedial Authority of Hearing and Review Officers under the Individuals with Disabilities Education Act: An Update, 31 J. Nat'l Ass'n Admin. L. Judiciary 1 (2011). The DOE bears the burden of proof on all matters at this hearing (see N.Y. Education Law §4404[1][c]; M .H. v.N.Y.C. Dept. of Educ., 685 F3d 217, 224-25[2d Cir 2012]). It has both the burden of production and the burden of persuasion oneach of the claims put forth by the parent (see Schaffer v. W est, 546 US 49 [2005]; M .P.G. v. N.Y.C. Dept. of Educ., 2010 W L 3398256 at *7 [SDNY Aug. 27, 2010]). The DOE bears "the burden of demonstrating the appropriateness of its proposed IEP" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 377, 379 [2d Cir. 2003]). In New York, the school district must carry the burden of proving that its recommended program provides the student with afree appropriate public education (FAPE). Ed. Law 4404(1)(c). The SRO has held that when the school district fails to present any testimonial ordocumentary evidence at the impartial hearing, the school district failed to meet its burden. SRO 15-033. The SRO has held that when the school district fails to present any testimonial ordocumentary evidence at the impartial hearing, the school district failed to meet its burden. SRO 15-033.

After the IHO determines that the DOE failed to meet its burden, all that is left to determine is the appropriate remedy in this matter. It is the DOE's burden to produce all proof in this matter; Ed. Law 4404(1)(c). The SRO has held that when the District fails to present acase, the burden is on the District, not the Parent, to present evidence as to the appropriate remedy. SRO 14-014.

The DOE failed to provide this this Student a program that would allow him to make meaningful progress and this deprived the Student of a FAPE. The DOE conceded that the student is entitled to receive 8 periods of SETTS per week and that the only issues are the rates of reimbursement for the services and that the student is not eligible for a12 month service.

I find that the Parent has failed to prove that the student should receive a 12-month service. Additionally, that the DOE has failed to prove that the Provider should receive payment in an amount not to exceed the sum of per hour. The evidence has established that the agency billed in accordance with market standards.

After considering all the evidence, I find and order as follows:

1. That the DOE is to pay for SETSS for up to 8 periods per week, to the order of for SETSS at a rate not to exceed per hour for the 2019-2020 SY within 30 days of receipt of an itemized invoice in aform acceptable to the DOE.

Dated: December 31, 2021

Gary D Peters, Esq

Gary D. Peters

Impartial Hearing Officer

W ithin 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

"The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period." (8NYCRR279.2 [b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.