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FINDINGS OF FACT AND DECISION
Case Number: 188563
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearings: January 16, 2020
February 28, 2020
Record Close Date: April 7, 2020
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 16, 2020
For the Student:
Advocate
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 28, 2020
For the Student:
Advocate
Parents
Educational Director
For the Department of Education:
District Representative
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 , the Parent (‘Parent’) on behalf of , the student (““Student’’), through her advocate, from ( ) by filing a Due Process Complaint dated September 9, 2019 with the District. P-A.
The Parent maintains that as a matter of law, her daughter 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 Parent is alleging that her daughter, was denied service under New York State Education Law Section 3602-c for the 2019-2020 school year and is seeking SETSS, five times per week, group service, , at the enhanced rate of $150, and Speech-Language Therapy, two times per week, 30 minutes each time, 1:1, There were two days of hearing in this matter. Hearings were held on January 16 and February 28, 2020. Extensions were granted in this case making the final compliance date April 19, 2020.'[1] A list of Exhibits is attached as Exhibit A. The Parent submitted exhibits. P-A—P-I.
Background
This case involves a year old student. During the 2019-20 school year, attended where the Student was unilaterally placed by her Parent.
The last Individualized Education Service Program (“IESP”’) that was developed for this Student was for the 2017-2018 school year dated January 30, 2017 (P-G) and provided for the following:
in ; and
2. Speech-Language Therapy, two times per week for 30 minutes each time, 1:1, in P-G.
The Parent filed a Due Process Complaint on September 9, 2019. P-A. I was appointed as an impartial hearing officer on September 22, 2019 after recusals.
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. Position of the Parties
Parent’s Case
The Parent called two witnesses, and the Parent and placed nine documents in evidence. P-A—P-I.
The first witness was Ms. . She is a licensed special education teacher with a bilingual extension in . Tr. 30. She has also completed her Master’s degree in behavior analysis and is currently the educational director at . Tr. 30. provides special education support services to children in mainstream schools. Tr. 31.
For the 2019-2020 school year, she is familiar with . Tr. 32. The Student is in the sixth grade and is receiving services with at . The Parent had contacted Ms. prior to the school year and advised the agency that she wanted them to continue working with the Student. They had worked with her for the 2018-19 school year. Tr.
32. is a student that is very weak cognitively and is struggling across all domains. She is willing to work hard but has very poor comprehension and processing skills, very poor understanding of language and social cues, and it is very difficult for her to work in a mainstream environment without support. Tr. 33. She requires a lot of multisensory support and specialized teaching instruction in order to make any progress. Tr. 33.-34.
The Student receives five hours of SETSS individually even though she is mandated for group services. Tr. 34. Ms. stated there is no one in her class functioning at a second grade level and they need to group the students appropriately in order for them to make academic progress. Tr. 34. Ms. also testified that she felt that given ’s “extreme” delays both socially and academically she would not be able to master the material in a group. She needs the directions repeated and the information broken She gets a tremendous benefit because it is in a quiet separate location where she can focus much better. Tr. 35. They can then go in the classroom and generalize and practice certain skills. Tr. 35. She is a bilingual student and her primary language at home is . Tr. 35-36. She is reading at a second grade level and her math skills are at a third grade level. Tr. 36. They are trying to use math to teach her life skills like how to use a calculator, problem solving questions, counting money and change, and other things applicable to daily life. Tr. 37. Her writing skills are very weak. She has a hard time with sentence structure and paragraph structure and has difficulty following along consistently with a thought. Tr. 37. Ms. believes the Student is also on a second grade level for writing. She needs a lot of support to write a cohesive paragraph. Tr. 37.
For the 2019-20 school year, ’s SETSS provider was . She has a Master’s degree in special education and is licensed by NYS as a special education teacher. She works primarily with students of middle school age. Tr. 38. Her direct supervisor is . Tr. 39. Ms. also has a Master’s degree in special education and is licensed by NYS. She works closely with the providers that she supervises to ensure they have the proper support and resources so that the students can access the best educational opportunities. Tr. 39. Ms. was trained in reading utilizing the Orton Gillingham approach. Tr. 40. She also has utilized the Wilson reading system. Tr. 39. Ms. sees during class time. Although she is not at fulltime, she sees two or three other students. Tr. 40. The supervisor is in the school at least one day a week and meets with the provider to discuss , either in her session or privately. Tr. 41. Due to ’s significant delays, they put in a lot of effort to make sure that the Student’s learning is at her level. They work hard to try to find her materials that are age appropriate for a sixth grader reading second grade level material. Tr. 41. As a result, the supervisor is very involved in *s program. Tr. 42. She observes her, meets with her, and provides the provider and Student with a lot of support. Tr. 42. Academic goals were created for at the beginning of the school year. Tr. 42. They believe she is making progress. Tr. 43.
Ms. testified that charges $175 an hour for ’s SETSS services. Tr.
43. She stated that the rate includes the provider’s hourly rate of $85 an hour. Tr. 43. It also includes the direct supervision provided to the Student and the provider. Tr. 44. also provides educational resources and professional development to make sure everyone has access to the best materials and strategies. Tr. 45. There is also overhead costs for that are included in the $175 fee. Tr. 45. The provider’s salaries range from $75 to $100 depending on expertise and certifications. Tr. 45. The rate per hour in most cases is $175, however, they charge a lower rate for some students depending on their program. Tr. 46. They analyze each case and determine what to charge. Tr. 46. They do not charge a different amount for bilingual students. Tr. 47. Ms. stated that for literacy they purchased the Wilson kit and the Preventing Academic Failure program for this Student. For social/emotional, they are using the Components of Social Thinking by Michelle Garcia Winner. They purchased the middle school set for her. For math, they provide her with a lot of manipulatives. Tr. 48. Ms. testified that there are approximately 600 students serviced by and although they have purchased the curriculum materials for other students, they often need a workbook or other material that is not able to be shared. Tr. 48. There is communication between the provider, supervisor, parents and classroom teacher. Tr. 49. The classroom teacher reported that with modified testing the Student is doing better and has more confidence. Tr. 45.On cross, it was determined that although Ms. speaks fluent , She does not have her bilingual certification. Tr. 50.
The next witness was the Parent. The Parent has children. Tr. 51. The Parent testified that she tried to find a provider for the Student for the 2019-20 school year by calling providers on the District’s website but was unable to find one. Tr. 51. She then contacted . Tr. 57. The Parent testified that her child is struggling with reading, writing, spelling and math. Tr. 57. Since the start of the 2019-20 school year, she has been in touch with the provider and supervisor from . Tr. 58. She stated that she speaks to them once in three to four weeks. Tr. 59. The Parent testified that her child is making progress. Tr. 58. The Parent testified that has not received Speech-Language Therapy to date. Tr. 58.
District’s Case
The District did not call any witnesses and did not place any documents in evidence.
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, there is no evidence that an IESP was developed for the 2019-20 school year. The District did not put on a case and agreed that the services were appropriate and that they were only disputing the enhanced rate. Tr. 22. The Parent put an IESP dated January 30, 2017 (P-G) in evidence, which provided for the following: SETSS, five times per week, one period each time, group service, in ; and Speech-Language Therapy two times per week, 30 minutes each time, individual service in , P-B.
(id.).
The District did not provide any witnesses and did not provide any evidence in this matter. The Parent is alleging that the District did not find a provider for the Student at the standard rate for the 2019-20 school year. Clearly, the District did not meet its burden of proof in this regard. The Parent provided Parent Provider Outreach that indicated that she tried to locate a provider at the District rate and was unable to locate one. P-C. The father also testified that his wife reached out to providers. The Parent did, in fact find a SETTS provider, through the agency, and the Parent is requesting that the agency be paid at the rate of $175 per hour. The District is disputing the rate charged for the SETSS services.
It is clear that the District was unable to find a SETSS provider for this Student for the 2019-20 school year. Ita testified that the provider from got paid $85 a session for working with the Student and the agency got paid $175 per session. The provider, mostly meets with the Student outside the classroom, however, will go in the classroom and generalize and practice certain skills. There is a supervisor that works with the provider, and she meets with Ms. on a weekly basis to discuss the Student, either privately or in her session. Tr. 41. Due to ’s significant delays, they put in a lot of effort to make sure the Student’s learning is at her second grade level, however, are age appropriate for a sixth grader. Tr. 42. Ms. testified that the rate of $175 an hour for Ss SETSS services includes the provider’s rate, the rate for the supervision provided to the provider and the Student by Ms. , the educational resources, and professional development provided to the provider, and the overhead for . Tr. 45. Ms. testified that the rate per hour is $175 in most cases but can be lower depending on the Student’s program. They do not charge a different amount for bilingual services. Tr. 47. Although she is mandated to receive SETSS as a group service, testified that she is receiving it individually because there is no one else in her class functioning at a second grade level and they try to group students appropriately in order for them to make academic progress. Tr. 37. She also stated that given ’s “extreme” delays with both socially and academically she would not be able to master the material in a group. She needs the directions repeated and the information broken down into smaller steps and a lot of modeling and prompting to make any progress. Tr. 37.
Based on the customary rate for SETSS providers, and taking into account the amount charged for the Student’s provider ($85) and estimating a reasonable increase for any other direct and indirect costs above that for this Student, I will be ordering payment at an enhanced rate of $125 per hour.
Based on the Parent’s actions, I find that the Parent 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 2019-20 school year, and, accordingly is not in compliance under State law for said year.
ORDER
Based upon the foregoing, it is hereby
ORDERED, that the District shall fund the SETSS services of five periods per week as provided on the IESP dated January 30, 2017 (P-G) at the enhanced rate of $125 per hour for the 2019-20 school year.[4] With respect to Speech-Language Therapy, an RSA shall be provided within five days of issuance of this Order, if it had not already been provided.
Dated: April 19, 2020
Elise B. Kestenbaum, Esq.
Impartial Hearing Officer
Appendix A Evidence
District’s Exhibits
No. Date Document Pages
No Exhibits were provided by the District.
Parent’s Exhibits
No. Date Document Pages
A 9/9/19 Impartial Hearing Request 5
B 5/1/18
C 2019/2020 Parent Outreach 1
D 1/27/20 Affidavit of Services 1
E undated Provider’s Certificate 2
F 11/14/2019 Progress Report 6
G 1/30/2017 IESP 9
H 9/19/20 Parent Retainer Agreement 2
I undated Program Description 12
Impartial Hearing Officer’s Exhibits
No. Date Document Pages
No Exhibits were provided by IHO.
Footnotes
[1] SETSS, five times per week for one period each time, group service,
[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 remote related services.