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FINDINGS OF FACT AND DECISION
Case Number: 188542
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parents
Dates of Hearings: December 6, 2019
March 31, 2020
April 6, 2020
May 7, 2020
May 19, 2020
Record Close Date: July 15, 2020
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 6, 2019
For the Student:
Esq. Attorney
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 31, 2020
For the Student:
Esq. Attorney (via telephone)
For the Department of Education:
District Representative (via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 6, 2020
For the Student:
Esq. Attorney (via telephone)
For the Department of Education:
District Representative (via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 7, 2020
For the Student:
Esq. Attorney (via telephone)
For the Department of Education:
District Representative (via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 19, 2020
For the Student:
Esq. Attorney (via telephone)
Educational Director, (via telephone)
For the Department of Education:
District Representative (via telephone)
Introduction:
This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by and , the Parents (“Parents”) on behalf of , the student (““Student’’), through their attorney, , Esq. from the by filing a Due Process Complaint dated September 9, 2019 with the District and an Amended Due Process Complaint dated December 30, 2019. P-A. I was appointed on September 18, 2019.
The Parents maintain that as a matter of law, their son is entitled to an appropriate special education according pursuant to both the IDEA and Section 504 of the Rehabilitation Act and Article 89 of the New York Education Law. The Parents are alleging that their daughter, was denied service under New York State Education Law Section 3602-c for the 2019-2020 school year and was not provided with an IESP for said year. The Parents are seeking Special Education Teacher Support Services (SETSS), five hours per week and related services by the Parents identified providers for the 2019-20 school year.
In terms of pendency, at the December 6, 2019 hearing, the parties agreed that pendency was based upon the last agreed upon Individualized Education Service Program (IESP) developed by the Committee on Special Education (CSE) dated August 7, 2017, which provided for the following: SETSS, three times per week, one period each time, group service, and Speech-Language Therapy, two times per week, 30 minutes each time, 1:1, , P-B. A Pendency Order was then issued on January 13, 2020.
There were five days of hearing in this matter. Hearings were held on December 6, 2019, March 31, April 6, May 7 and May 19, 2020. Extensions were granted in this case making the final compliance date July 30, 2020.'[1] A list of Exhibits is attached as Exhibit A. The Parents submitted exhibits. P-A—P-G.
Background
This case involvesa year old student. During the 2019-20 school year, attended where the Student was unilaterally placed by her Parents.
The last IESP that was developed for this Student was completed August 7, 2017 for the 2017-2018 school year and provided for the following:
1 The Parties moved to extend the compliance date in this matter several times during the course of the hearing. In considering the requests, | weighed the cumulative impact of the relevant factors and found that the requests were in accordance with the requirements of due process. Accordingly, the requests for extension of the case compliance were granted.
2. Speech-Language Services, two times per week for 30 minutes each time, 1:1. P-B.
Another IESP was then developed for this Student on April 21, 2020 and provided for the following:
1. SETSS, five times per week for one period each time, group service, ; Speech-Language Therapy, two times per week, 30 minutes each time, 1:1, > and
3. Counseling, one time per week, 30 minutes each time, group service, P-F.
The Parents filed a Due Process Complaint on September 9, 2019 (P-A) and an Amended Due Process Complaint dated December 30, 2019. I was appointed an impartial hearing officer on September 18, 2019.
Position of the Parties
Parents’ Case
The Parents called one witness, Ita and placed seven documents in evidence. PA—P-G. She has a Master’s degree in early childhood education and completed her post Master’s training in behavioral analysis. She is a licensed special education teacher with a bilingual extension in . Tr. 41. She is currently the Educational Director at which provides special education support services to children in mainstream schools. Tr. 42 She screens and hires all of the special education teachers. She also works with the supervisory team to ensure that the students are getting their services in an appropriate way and that they have access to resources and materials. Tr. 42. She also is aware of the administrative and business functions of . Tr. 42.
She is familiar with as she has been receiving services with for the past two years. Tr. 42-43. has been receiving 1:1 SETSS services five periods per week. There wasn’t a new JESP in effect at the beginning of the school year. Ms. testified that there was an outdated IESP that mandated three periods of SETSS per week. Tr. 45. Based upon ’s knowledge of working with during the 2018-19 school year, they did not believe that three periods was adequate. Tr. 45. They based this determination on how she was performing, the number of goals they needed to develop, as well as her progress in both the classroom and the one-to-one setting. Tr. 46. In order to create goals, they conducted assessments, observed the Student, and spoke with both the school and the family. Based upon their findings they were able to set a baseline and develop goals from there. Tr. 46. The goals are listed on the Progress Report dated November 14, 2019. Tr. 47. She believes the Student requires SETSS five times a week in order to make progress towards her goals. Tr. 47. Ms. is familiar with her specific needs because she has collaborated with the team, and the direct supervisor and the providers all brought their concerns to her. Tr. 47. They felt that if had the additional support, she would be able to master and try to maintain the work that she was learning. Tr. 47. was her direct SETSS provider and her supervisor was . Tr. 48. The other people involved in the supervision and development of her program were the school staff, the classroom teacher, the school principal, and Ms. . Tr.
49. Her role was to ensure that both the supervisor and the provider are equipped to work with the Student, and have the resources and information that they need. Tr. 50. At the April 21, 2020 meeting, the Parent, and the District were in agreement with the recommendation of five hours of SETSS per week. Tr. 50.
Ms. stated that the Affidavit from (P-G) is correct and stated that the Student was receiving five hours a week of SETSS at the rate of $175 per hour for the entire year. Tr. 53. She stated that she personally has reached out to a couple of agencies that provide the same or similar services and spoke with the director or the intake director. Tr. 55. The agencies stated that for one-to-one services the average was between $150 and $220 an hour. Tr.
55. The SETSS providers at are paid between $75 and $100 an hour depending on their certifications and qualifications. Tr. 56. The provider that the Student works with gets paid $85 per hour. Tr. 56. Since the agency charges $175, the balance goes towards the following: direct supervision which is provided on a weekly basis; monthly professional developments for providers; educational resource materials; and the administrative overhead costs that go into providing the services and paying their providers in a timely fashion. Tr. 57. They try to hire super qualified teachers with experience and pay higher rates for that. Tr. 61. Specifically, Ms. testified that the supervisor, Ms. meets with the provider on ’s behalf weekly. Tr. 59. She allocates 45 minutes to an hour and a half a week which includes additional follow-up with provider and/or parent, if necessary. Tr. 59. In terms of getting paid by the District, there is normally a backlog on invoices being paid. Tr. 63. incurs a cost for floating these payments while they are waiting for the District to reimburse them. Tr. 63. This amount is also built into the rate they are charging. Tr. 64.
Ms. testified that based on the last assessments the Student is reading at the end of second grade level, which is two years below grade level. Tr. 66. She has made slow and steady progress in terms of her performance as a Student, her executive functioning skills and her anxiety. She has a very hard time learning in a group so her one-to-one sessions are very helpful. Tr. 66. They are hoping to bridge the gap and eventually hope for her to be intervention free and on grade level. Tr. 67.
Ms. testified that they provide SETSS to approximately 600 students and sees approximately 25 students. Tr. 67.
District’s Case
The District did not call any witnesses and did not place any documents in evidence. The District stated that an IESP was created for the 2019-20 school year on April 21, 2020 which provides for SETSS, five periods a week in a group and related services. The District understands that the Parent was unable to locate a provider at the District rate. The District does not dispute the fact that the Parent is receiving SETSS at an enhanced rate, however, the District is not in agreement with the rate that the provider is charging.
Findings
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1 [A]; Educ. Law § 4402[2][a],[b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a],[c], 300.138[b]).
However, under State law, parents of a New York State resident student with a disability who is placed in a nonpublic school and who seeks to obtain educational “services” for his or her child may file a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[2] “Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent” (Educ. Law § 3602-c[2][a]. In such circumstances, the district of location’s CSE must review the request for services and “develop and [I[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]). The CSE must “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” (id.).[3] Additionally, unlike the provisions of the IDEA, section 3602-c provides that a parent may seek review of the recommendations of the CSE pursuant to the impartial hearing and State-level review provisions of Education Law § 4404 (id.). See Application of the Board Of Educ., Appeal No. 18-088
In the instant matter, under State law, an IESP was not developed until April, 2020 for the 2019-20 school year. The parties are in agreement that the District developed an IESP after the school year began. The District did not put on a case. The Parents placed in evidence, at the ? State law provides that “services” includes “education for students with disabilities,” which means “special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)] (Educ. Law § 3602-c[1][a],[d]).
(id.). December 6, 2019 hearing, an IESP dated August 17, 2017 (P-B) for pendency, which provided for the following: SETSS, three times per week, one period each time, group service; and Speech-Language Therapy, two times per week, 30 minutes each time, 1:1. P-B. A Pendency Order was issued on January 13, 2020. The only other IESP that was placed in evidence was dated April 21, 2020.
The District did not put on any witnesses and did not provide any evidence in this matter. Clearly, the District did not develop an IESP since 2017 and the IESP that was finally developed on April 21, 2020 provided for five hours of SETSS instead of the three hours she was receiving under pendency as a result of the 2017 IESP. Ms. testified that based on Ss knowledge working with the Student during the 2018-19 school year and based on how she was performing and her progress, five hours of SETSS was warranted for the 2019-20 school year. In the Progress Report from the provider, Ms. , She stated is performing below grade level in the academic domain, specifically two grade levels below in reading, and significantly delayed in comprehension and math and requires a minimum five hours of SETSS per week to address all of her areas of need. P-D. The District did not put on any evidence to the contrary and did not raise any objections to the Parents’ request for the five hours for the entirety of the 2019-
20 school year. The Parents are alleging that the District did not find a provider for the Student at the standard rate for the 2019-2020 school year. The Parents did, however find a SETSS provider, through the agency, , and the Parents are requesting that the agency be paid at the rate of $175 per hour.
It is clear that the District was unable to find a SETSS provider for this Student for the 2019-20 school year. Ms. testified as the Educational Director of the agency, , She stated that the Student is receiving SETSS from , a provider that works with the agency. She provides five hours a week of one-to-one SETSS to the Student. Ms. testified that Ms. is paid $85 per hour and that this particular rate is based on her certifications and qualifications. Tr. 56. The agency charges $175 per hour for the Student’s sessions. In addition to the rate charged to the provider, which in this case is $85, Ms. stated that the balance goes towards direct supervision that they provide on a weekly basis, monthly professional developments that they arrange for the providers, educational resource materials, and overhead costs that go into providing the services and paying their providers in a timely manner. Tr. 57. Ms. did not provide any specific numerical amounts concerning the additional costs to to justify an increase of over 100% over the child’s mandated educational support. Ms. also testified that she spoke with other agencies that provide the same or similar services and the average they charge is between $150 and $220 an hour and determined that ’s rate of $175 per hour is within that average. Tr. 55. It was not clear who she spoke to and what exactly they were charging for, and what they were paying to their providers. Accordingly, I do not credit Ms. ’s testimony in this regard. Based on the foregoing and estimating a reasonable increase for indirect costs above the provider’s rate ($85), I will be ordering a continuation of five hours of SETSS for the 2019-20 school year at an enhanced rate not to exceed $125 per hour.
Based on the Parents’ actions, I find that the Parents cooperated with the District and analysis of equitable considerations offers no basis to rule against them.
Accordingly, under State law, the Student is afforded the same protections as a public school student on an equitable basis, therefore, I find the District failed to prepare and implement an IESP for the 2019-2020 school year, and, accordingly is not in compliance under State law for said year.
ORDER
Based upon the foregoing, it is hereby
ORDERED, that for the 2019-2020 school year, the Student shall receive SETSS, five times per week, one period each time, group service, in , which shall be provided at an enhanced rate not to exceed $125 per hour.[4] In terms of related services, RSAs shall be provided within five days of issuance of this Order, if they have not already been provided.
Dated: July 23, 2020 tlise
B. Kestenbaum
Elise B. Kestenbaum, Esq.
Impartial Hearing Officer
Appendix A Evidence
District’s Exhibits
No. Date Document Pages none
Parents’ Exhibits
No. Date Document Pages
A 09/09/2019 Request for Impartial Hearing 3
B 08/07/2017 Individualized Education Services Program 13
C 12/30/2019 Amended Request for Impartial Hearing 3
D 11/14/2019 SETSS Progress Report 6
E undated C.V. 4
F 04/21/2020 Individualized Education Services Program 13
G. 05/07/2020 Affidavit of 1
Impartial Hearing Officer’s Exhibits
No. Date Document Pages none
NOTICE OF RIGHT TO APPEAL
Within 40 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 (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be served upon the opposing party no later than 25 days from the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally serviced upon opposing party within 40 days from the date of decision sought to be reviewed. An appealing party Shall file the notice of intention to seek review, notice of 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 rules of procedure for appeals before an SRO are found in Part 279 and model forms are available at: www.sro.nysed.gov/appeals.htm.
Footnotes
[1] SETSS, three times per week for one period each time, group service, ; and
[2] State law provides that “services” includes “education for students with disabilities,” which means “special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)] (Educ. Law § 3602-c[1][a],[d]).
[3] State guidance explains that providing services on an “equitable basis” means that “special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as comparted to other students with disabilities attending public or nonpublic schools located within the school district’ (“Chapter 378 of the Laws of 2007 — Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c,” Attachment 1 at p. 11, VESID Mem. [Sept. 2007], available at http://www.p12.nysed.gov/specialized/publications/policy/nonpublic907.pdf). The guidance document further provides that “parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to is public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program”
[4] During the closure of schools due to Covid 19, this Order may include funding for remote SETSS and other remote services.