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FINDINGS OF FACT AND DECISION
Case Number: 188803
Student’s Name:
Date of Birth:
Hearing Requested By: Parent
Dates of Hearings: December 20, 2019
March 3, 2020
April 1, 2020
May 14, 2020
Record Close Date: August 4, 2020
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 20, 2019
For the Student:
No one appeared
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 3, 2020
For the Student:
Advocate
Parents
General Studies Teacher (via telephone)
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 1, 2020
For the Student:
Advocate (via telephone)
SETSS Provider (via telephone)
Principal of Secular Studies, (via telephone)
For the Department of Education:
District Representative (via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 14, 2020
For the Student:
Advocate (via telephone)
SETSS Provider (via telephone)
Director of (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 _., the Parent (““Parent’’) on behalf of ., the student (“Student”), through her advocate, by filing a Due Process Complaint dated September 9, 2019 with the District. P-A. I was appointed on September 9, 2019.
The Parent maintains that as a matter of law, her son is entitled to an appropriate special education according 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 son, . was denied service under New York State Education Law Section 3602-c for the 2018-19 and 2019-20 school years and is seeking ten hours of SETSS at the enhanced rate of $110.
There were three days of hearing in this matter. Hearings were held on March 3, April and May 14, 2020. Extensions were granted in this case making the final compliance date August 16, 2020.'[1] A list of Exhibits is attached as Exhibit A. The Parent and District submitted exhibits.
Background
This case involves an eleven year old student. During the 2018-19 and 2019-20 school years, attended where the Student was unilaterally placed by his Parent.
The Individualized Education Service Program (“IESP’’) that was developed for this Student for the 2019-20 school year is dated March 19,2019 and provided Special Education Teacher Support Services (SETSS), ten times per week for one period each time, group service.
The IESP that was developed for this Student for the 2018-19 school year is dated April 16, 2018 and also provided for SETSS, ten times per week, one period each time, group service. IHO-I.
District’s Case
The District called one witness, and placed two documentsin evidence. D1-D-2. Mr. is a Special education teacher at in , where he teaches fourth through eighth grade and also serves as a SETSS provider. He has worked for the District since 2004. He holds a Master’s degree in education and a permanent certificate in special education and is certified by New York State. Tr. 29-32.
Mr. testified that he was the only District SETSS provider at during the 2018-19 school year. Tr. 37. . was not assigned to him during this period. Tr. 33. The school does have other SETSS providers who provide similar services, but come from independent, private agencies. Tr. 34. He established that Don was an independent SETSS provider during the 2018-19 school year, however he left the school after spring break. Tr. 38. He is also familiar with , another provider who was also in the school through an agency. Tr. 39.
Mr. stated that if a parent was dissatisfied with their SETSS provider, whether that provider came through the District or an independent agency, an administrator at the school would address their concerns. In the case of , this would have been addressed by the school’s secular principal Tr. 44. Mr. explained that he receives a master list of every student receiving SETSS services at a given time, and tries to assist in order to make sure that all students are receiving services. Tr. 47. There are approximately 80 students receiving services at the and he believes . received services throughout the 2018-19 school year. Tr. 48.
Parent’s Case
The Parent called five witnesses: the Parent, , , and and placed nine documentsin evidence. P-A-P- L The first witness was the Parent of , . is currently in the fifth grade at . Tr. 52-53. The Parent testified that .’s IESP for the 2018-19 school year provided for ten hours of SETSS a week, or two hours per day. Tr. 53. She states that Mr. ; the secular principal at the school, sent her to Mr. , who assigned . to Mr. at the beginning of the 2018-19 school year. Tr. 54-55. She was dissatisfied with this placement due to her belief that Mr. ’ teaching style did not suit .’s needs (“half the time they play games’’), as well as her sense that her son required one-on-one instruction and Mr.
9 classroom was a group setting. Tr. 57-58. Additionally, she testified that she believed that Mr. was only teaching math in his class, and . needed help in reading and writing as well. Tr. 59.
The Parent stated that she asked Mr. to remove . from Mr. roster, however, Mr. refused to let . out of his class. Tr. 62. The Parent reached out to other providers, through a list of providers offered to her by the school. The Parent then found Ms. , who provides one-on-one services and asked her to work with her son. When Ms. indicated that she had room in her schedule for ., the Parent then formally asked for to be moved onto Ms. ’s caseload, which caused scheduling conflicts between Ms. and Mr. . Tr. 64-65, 68. Both Ms. and Mr. worked with intermittently from November 2018 to April 2019 when Mr. left the school. In this regard, the Parent could not recall exactly when each respective provider was working with the Student and when they were not, however, testified that they overlapped. Tr. 69-70. To the best of the Parent’s recollection, Ms. also worked with . after Mr. left and before the school year ended and through the summer of 2019. Tr. 72. This one-on-one work has continued into the 2019-20 school year . Tr. 73. According to the Parent, Ms. works through an agency known as , and bills $110 an hour. She has not paid Ms. anything out of her own pocket . Tr. 74.
On cross examination, the Parent clarified that she was told by Mr. that only Mr. and Mr. could determine ’s SETSS placement. She stated that Mr. refused to let him transfer out of his class due to “signed documents” and she felt that . did best in a one-on-one environment. Tr. 75-77.
The next witness was . She is .’§ current classroom teacher. She also taught . when he arrived at in third grade. Tr. 87. According to Ms. ; . struggles to comprehend classroom material and complete assignments. Although he is currently in fifth grade, by her assessment, . reads at a third grade level. Tr. 87-88. When . first transferred to from public school, he was supposed to receive ten hours of services a week, however, SETSS was not provided. Ms. did not know why that paperwork was not provided at the beginning of the school year, but it finally came through in May, and . then started receiving those services. Tr. 88-89.
The Parent’s next witness was . Ms holds a Master’s degree is early childhood and special education from . She has been working in the field since 2010. Tr. 99. She is certified by the state of New York from birth to second grade. She is currently .’s special education provider. Tr. 100. He is presently receiving ten hours a week of SETSS one-to-one. Tr. 89.
Ms. testified that she began working with . after Mr. reached out to her. According to Ms. , Mr. told her that . was “really, really behind in his studies, and a group setting wasn’t working for him”. Tr. 101. The Parent had reached out to her to begin the Student’s one-to-one therapy. Tr. 102. Mr. stated that he deals with the providers, not the agencies. After she began working with ., lt was brought to her attention that Mr. was also working with . at the same time. Tr. 102. Upon this discovery, she stopped working with . aS Mr. refused to remove himself from the case and couldn’t receive services from two providers. Tr. 103. She stated that she works for . Tr. 102. She indicated that she was familiar with Mr. . In addition to being a SETSS provider, Mr. gives out the IESPs, he collects the progress reports, and coordinates the related service providers. Tr. 104.
Ms. explained that although she only has a New York State license through second grade, she was able to work . because many private schools allow educators with special education licenses to provide services for students through eighth grade. Tr. 105. She was first approached to work with . in a group setting in June of 2018, however she didn’t want to take on a new student so close to the end of the school year. Tr. 110. In September of 2018, she continued working at the school with other students. Tr. 112. Some of these students are also older than second grade. For her work at , She is paid through her agency (p. 114).
After discussing the matter with Mr. , the Parent, and .s classroom teacher, separately, Ms. received permission from her agency to begin working one-on-one with . Tr. 116-117. After around a “month, a month-and-a half’, she found out that Mr. was also working with . She approached Mr. regarding the Parent’s wishes, however Mr. said there was nothing he could do due to a signed consent form. Tr. 118. Ms. then stopped working with . until August of 2019, when she worked with him for “a week or two” as a result of the agency reaching out to her. Tr. 123-124. She was only paid by her agency for the short period of time she worked with him that summer. Tr. 119. She subsequently began working with . again at the beginning of the 2019-2020 school year, and has been providing services ever since. Tr. 121. She receives $62 per hour for this work. It was lowered from $65 due to the COVID situation. Tr. 127. She is aware that Mr. was let go in April. She doesn’t recall if they brought someone else in to service . Tr. 120.
She did not see an IESP for the 2019-20 school year and created goals with his classroom teacher. Tr. 126
The next witness was . He is the principal of secular studies at for close to eleven years. He is a New York State certified administrator. Tr. 130-131. He oversees the SETSS and IESP programming within the school along with Mr. . Tr. 132.
Mr. testified that he checks on the students that are in the program and interviews providers to see if they have the right skills for the program. Tr. 132. The providers they use are basically from agencies. Tr. 132. The school finds the provider; the parent does not look for their own provider. Tr. 133. Although the District has providers, they have never sent anyone. Tr. 133.
Mr. testified that . came to at the beginning of third grade. At the time, the school noted that . was behind academically, but the Parent did not show the school the IEP developed by the public school he came from until a few months after his entrance at . Tr. 135. The school then assigned . to Mr. ; who worked full-time in the school through an agency. Tr. 136-138. Mr. worked with . until he was “let go” by the school in April because he “wasn’t fitting into our school”. Tr.
140. Mr. stated that Mr. provided one-on-one services to the Student. Mr. stated they did not have a group for him. Tr. 141. There was no substitute found immediately upon his departure and . was assigned to Ms. after a “period of three or four weeks”. Tr. 141-142. The Parent came to Ms. because she was a friend of the family. Tr. 142. Mr. stated that Ms. did not work for the Student until after Mr. left. Tr. 144.
Mr. stated that he heard of the Parent’s concerns about Mr. “second-hand”. Tr. 144. No communications were made directly to him. By his understanding, the Parent felt that . was not getting the type of education he needed. Tr. 145. The 2019-20 IESP provides for group services, however, the school had no other students to group . with at that time. Tr. 149.
Mr. stated that he was unaware that Ms. ’s certification only went through second grade. He has been working with her for “three, four years” (p. 151).
The Parents’ final witness was . Ms. is the owner and director at , an agency that provides enhanced rate SETSS to children ages 5-21”. Tr. 170. She holds a Master’s degree in social work and is certified as a social worker by New York State. Tr. 189.
Ms. testified that she was first contacted by the school regarding .s case in November of 2018. Tr. 172-173. Through conversations with the Parent, the provider, and the classroom teacher, Ms. assessed that . was functioning far below appropriate age level academically, “more like kindergarten level, maybe first grade level”. Tr. 174. Because of this low functioning level, Ms. deemed Ms. an appropriate provider even though she was only certified through second grade. She felt that a provider certified for older grades “may not be able to relate with him”. Tr. 175.
She stated that Ms. began working with .in November 2018 until February 2019 when the agency discovered he was already working with another provider. Tr. 176. She was not sure who she found out from. Tr. 176. The provider puts in all their sessions and each session is corroborated and an invoice is generated at the end of each month which the provider signs and the teacher signs. Tr. 178. Ms. stated that Ms. is receiving $68 per hour and the agency is requesting $150 per hour. Tr. 178. She stated that at this time has not been paid at all for this child. Tr. 178. They have been paying Ms. between November 2018 and February 2019 and then this year every two weeks. Tr. 179. They also pay for any materials or equipment Ms. requires and her supervisor, who she meets with the provider one time per week on behalf of . Tr. 179.
According to Ms. ; . is “not capable of learning academically in a way that would do him any amount of good in a group”, which is why Ms. is working with him one-on-one. Tr. 181. He has shown “slow” but real progress. Tr. 183.
She also stated that is providing remote services during the Covid-19 crisis. Tr. 188.
Ms. testified that although . was not receiving 12-month services, he received summer services due to the hours he had missed during the school year, and that the advocate, Ms. told her that “in all likelihood” she would be paid for providing these services. Tr. 190-191. The agency’s rate is $150 per hour. Tr. 193.
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, it is clear that an IESP was developed for both the 2018-19 and 2019-20 school years. D-1; IHO-I. The Parent is alleging that although the Student was receiving SETSS during the 2018-19 school year from a SETSS provider through April, the Parent alleged that the SETSS provider was not appropriate for the Student. She indicated that she raised her concerns with the provider and the principal of the secular program at . She alleged that she did not approve of the provider’s teaching style and the Parent objected to the group service, even though that was what he was mandated to receive on his 2018-19 IESP. IHO-I.
There were discrepancies in the testimony from the Parent and Mr. regarding how and why another provider began working with the Student while he was still receiving SETSS from Mr. . Clearly, the Student was receiving SETSS during the period from September (id.). 2018 through April 2019 from Mr. and it was not appropriate for a second provider to be providing SETSS services for the same period. Both Mr. and Mr. “oversaw” the program and should have known that the Student was receiving duplicative services, not the District. Accordingly, the District should not be required to pay for duplicative services.
Clearly, once Mr. left, SETSS should have been provided to this Student through the end of the school year by another provider, as mandated by the 2018-19 IESP. IHO-I. Although Mr. testified that Ms. began providing services during the school year (after Mr. left), Ms. and Ms. testified to the fact that the SETSS was provided over the summer to make-up for the services that were not provided between April and June 2019. There are invoices for the Implementation Unit of the New York City Department of Education memorializing these services in evidence. P-H. Ms. testified that she has been paid for the summer services at the rate of $65 per hour by the agency. Tr. 119. It is my understanding that the Student was mandated to receive these services, and although they were not provided until the summer, the agency should be paid for providing the SETSS to . upon receipt of proof that the services were provided to the Student at the enhanced rate of $110 per hour. P-H.
With respect to the 2019-20 school year, the Parent is alleging that the District did not find a provider for this Student. The District did not meet its burden in this regard and there is no testimony or documentary evidence supporting this. The District provided one witness, Mr. , who testified that he did not know the Student and was not his provider. Therefore, there is no evidence indicating that the District found a provider for this Student. The Parent testified that she found Ms. through an agency, and the Parent is requesting that the agency be paid at the enhanced rate of $110 per hour. It should be noted that the District’s witness, Mr. stated that he did not know the Student and was not his provider. Although the District did not meet its burden in this matter, there were discrepancies in the testimony regarding how the provider was located. The Parent testified that she found Ms. through a list of providers provided to her from (P-A); Mr. testified that it was his understanding that Ms. was a friend of the family. Ms. was servicing other students at the at the time of the Parent’s inquiry. Tr. 142.
The SETSS provider, Ms. testified that she had provided ten hours of SETSS to the Student for the 2019-20 school year. There are invoices for the Implementation Unit of the New York City Department of Education memorializing these services in evidence. P-I. Ms. stated that she was receiving $65 per hour as a provider from the agency, however, after Covid, it was reduced to $62 per hour. Ms. testified that the provider was receiving $68 per hour and the agency was charging $150. Tr. 178; P-B. Ms. stated that the agency has been paying Ms. every two weeks but have not been paid from the District. Tr.
178. The agency also pays for any materials or equipment Ms. requires for the Student, and the services of the provider’s supervisor, who meets with the provider one time per week specifically for . Tr. 179. Based on the rate that the agency is paying the provider (between $62 to $68 per session) and estimating a reasonable increase for indirect costs including the cost of the supervisor and supplies, etc., I will be ordering that the ten hours of SETSS for the 2019-20 school year as mandated on the 2019-20 IESP (D-1), should be funded at an enhanced rate of $110 per hour*. IHO-I.
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 find a provider for a portion of the 2018-19 school year and for the 2019-20 school year, and, accordingly is not in compliance under State law for said period. Therefore, the District shall pay for the SETSS services the Student was mandated to receive between April through June 2019 (and actually received over the summer) and the SETSS services the Student was mandated to receive for the 2019-20 school year.
ORDER
Based upon the foregoing, it is hereby
ORDERED, that
1. For the 2018-19 school year, District shall pay the agency, for the SETSS services that were provided to the Student for the period from July 24 through August 30, 2019, to make-up for the mandated services the Student did not receive between April and June 2019, in accordance with his 2018-19 IESP, at the enhanced rate of $110 per hour, upon receipt of proof from the Parent that the services were provided to ,
2. For the 2019-20 school year, the District shall also pay for the SETSS services that were provided to the Student from September 2019 through June 2020, in accordance with his 2019-20 IESP, at the enhanced rate of $110 per hour, upon receipt of proof from the Parent that the services were provided to
3. During the closure of schools due to Covid 19, this Order may include funding for remote services, upon receipt of appropriate proof of same.
Dated: August 13, 2020 tlise Kestenbaum
Elise B. Kestenbaum, Esq.
Impartial Hearing Officer
4 It should be noted that the Parent advocate agreed that they were only requesting $110 per hour for the SETSS services provided by , despite the agency’s request for $150.
Appendix A Evidence
District’s Exhibits
No. Date Document Pages
1 3/19/2019 IESP 11
2 3/19/2019 CSE Minutes 1
Parent’s Exhibits
No. Date Document Pages
A undated Provider call list 1
B 3/2/2020 Affidavit from Agency 1
C 11/22/2017 Teacher Licensing 3
D 9/9/2019 Due Process Complaint 3
E 7/8/2019 Notice of Appearance 1
F 4/16/2018 IESP 9
G 5/14/2020 Emails between and 2
H Summer 2019 Invoices from Summer 2019 2
I 2018-2020 Invoices Impartial Hearing Officer’s Exhibits No. Date Document Pages
I. 4/16/2018 IESP 11
II. 6/8/2020 Parent’s Closing Statement 3
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] 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] 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”