New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 188655

Student’s Name: Yehuda Gross

Date of Bi 5

ing Requested B Parents

Dates of Hearings: January 21, 2020

May 5, 2020

Record Close Date: June 20, 2020

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 21, 2020

Esq. Attorney — Student

District Representative (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 5, 2020

Esq. Attorney (via telephone) — Student

Educational Director, (via telephone) — Student

District Representative (via telephone) — DOE

Introduction: — DOE

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 10, 2019 with the District. P-A. I was appointed on September 19, 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 son, 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 Parent is seeking Special Education Teacher Support Services (SETSS), five times per week, one period each time, group service, at the enhanced rate of $150; and Speech-Language Therapy, two times per week, 30 minutes each time, 1:1.

In terms of pendency, at the January 21, 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 March 31, 2014, which provided for the following: SETSS, five 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 February 8, 2020.

There were two days of hearing in this matter. Hearings were held on January 21 and May 5, 2020. Extensions were granted in this case making the final compliance date July 16, 2020.^[1] A list of Exhibits is attached as Exhibit A. The Parents submitted exhibits. P-A—P-F. The IHO submitted an Exhibit. IHO-I.

Background

This case involves a year old student. During the 2019-20 school year, attended where the Student was unilaterally placed by his Parents.

The last IESP that was developed for this Student was for the 2014-15 school year dated March 31, 2014(P-B) and provided for the following:

2. Speech-Language Services, two times per week for 30 minutes each time, 1:1.

1 The Parties moved to extend the compliance date in this matter several times during the course of the hearing. In considering the requests, I 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.

The Parents filed a Due Process Complaint on September 10, 2019. P-A. I was appointed an impartial hearing officer on September 19, 2019.

Position of the Parties

Parents’ Case

The Parents called one witness, and placed six documents in evidence. P-A— P-F.

Ms. ’s direct testimony was put in by Affidavit. P-F. On cross, Ms. testified that presents as a bright child and is doing well in a lot of areas, however, he needs help with his reading skills., comprehension and math. She testified that they need to work closely with him to ensure that he does well, takes the Regents, and graduates from high school. Tr. 23. They hired a teacher that is experienced working with high school students, and has the ability to push him in reading, comprehension, and math skills. Tr. 23. Although the provider’s certification is up until sixth grade, he has been working both for the District and privately with a lot of high school students especially those taking Regents. Tr. 23. In most situations, looks for a provider who is qualified and certified in the right grades, however, they also look at the student’s needs and provider strengths and match the two together. Tr. 24.

Ms. testified that this Student is in a bilingual program, however, he is receiving services in English. Tr. 26. The provider, is paid $90 an hour for his services. Tr. 26. When they set a rate with a provider, they review their experience and credentials and negotiate a rate they are willing to take. Tr. 27.

In the Affidavit, Ms. stated that charges $175 per hour for the provision of bilingual one-to-one SETSS. P-F. She stated that they charge the same for monolingual SETSS. Tr. 23. She said most of the services are provided 1:1 and not in a group so it’s the same across the board. Tr. 23. She stated that for the few students getting the services in a group, the rates can be lower. Tr. 27. Although most IEPs and IESPs provide for SETSS in a group, the agency provide service to each student in a way that they believe the student requires. They speak to the family and the school, review the student’s needs, and make a determination. Tr. 28.

With respect to Ms. ’s consultation with other agencies regarding market rate, Ms.

testified that she spoke with the intake director, the supervisor or whoever was able to speak to her. Tr. 28. Most gave one rate for 1:1 SETSS services. Tr. 30.

With respect to additional costs besides provider rate ($90), they provide one-to-one supervision to the provider, monthly professional development, educational resources and benefits, and there are also overhead administrative costs. Tr. 31. Some days receives his services at school and some days at home. Tr. 31. The supervisor touches base on a weekly basis. Tr. 34.

During COVID, the provider and Student tried working it out through an audio and video platform, but it wasn’t working out well. Tr. 33. The provider now prepares worksheets and outlines the objectives for the work and they go through it over the phone. Tr. 34.

Since the Student is working towards the Regents exams, purchased a subscription to the website so he could practice. Tr. 37. Ms. stated that a lot more preparation goes into working with a high school student.

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 February 26, 2020 which provides for SETSS, five periods a week in a group. 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. Tr. 18.

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 [IESP] 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 February 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 January 21, 2020 hearing, an IESP dated March 31, 2014 for pendency, which provided for the following: SETSS, five times per week, one period each time, group service; and SpeechLanguage Therapy, two times per week, 30 minutes each time, 1:1. P-B. A Pendency Order was issued on February 26, 2020. The only other IESP that was placed in evidence was dated February 26, 2020. IHO-I.

The District did not put on any witnesses and did not provide any evidence in this matter. 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 and the District is in agreement with that. 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. He provides five hours a week of one-to-one SETSS to the Student after school at or at home. Ms. testified that is paid $90 per hour and that the particular rate is based on the provider’s experience, credentials and the needs of the Student. P-F; Tr. 27. It should be noted that although may have experience with high school students, he not have certification to teach high school. The agency charges $175 per hour for the Student’s sessions. Ms. stated in her Affidavit that the $175 per hour rate is for the per hour rate for the provider of bilingual 1:1 SETSS services. P-F. It should be noted that is not a bilingual student, however, on cross Ms. stated that monolingual students are charged the same rate as bilingual students unless its group service, however, most of the students at receive 1:1 services. In addition to the rate charged to the provider, which in this case is $90, “the $175 per hour rate also accounts for the work of the educational supervisor overseeing the provider’s implementation of services and the student’s progress as well as the agency’s overhead costs, e.g., the costs of administrative staff and expenses, educational resources and materials, professional development, and employment taxes.” P-F. Ms. did not provide any specific numerical amounts concerning the additional costs to to justify an almost 100% 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” (id.). increase over the child’s mandated educational support. She stated in her Affidavit that also supplies text books, specialized learning aids, etc. P-F. She indicated at the hearing that they pay for a subscription for to website so he can practice. Tr. 37. Ms. also testified that she did a survey of other agencies and determined that ’s rate of $175 per hour is within the general market rate for 1:1 SETSS services in the greater New York City area. P-F. In preparing her survey she spoke with the intake director, the supervisor, or whoever was able to speak to her to at the other agencies. Tr. 28. I do not credit the results of the survey as establishing the market rate since it was not clear who she spoke to and what exactly they were charging for. Based on the foregoing and estimating a reasonable increase for indirect costs above the provider’s rate ($90), I will be ordering a continuation of five hours of SETSS for the remainder of 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: (1) SETSS, five times per week, one period each time, group service; and Speech-Language Therapy, two times per week, 30 minutes each time, 1:1; (2) SETSS shall be provided at an enhanced rate not to exceed $125 per hour;^[4] (3) with respect to Speech-Language Therapy, RSA shall be provided within five days of issuance of this Order, if it has not already been provided at the standard District rate.

Dated: June 30, 2020

________________________________

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 09/10/2019 Impartial Hearing Request 3

B 03/31/2014 IESP 9

C 027/17/2020 Progress Report 5

D 12/02/2019 Affidavit of Services 1

E undated Provider Certification 1

F 03/02/2020 Affidavit in lieu of Direct Testimony 5

Impartial Hearing Officer’s Exhibits

No. Date Document Pages

I 02/26/2020 IESP 12

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, five 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

[4] During the closure of schools due to Covid-19, this Order may include funding for remote SETSS and other remote services.