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FINDINGS OF FACT AND DECISION
Case Number: 188900
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearings: December 17, 2019
February 5, 2020
February 13, 2020
Record Close Date: April 10, 2020
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 17, 2019
For the Student:
Advocate
Advocate
Parents
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 5, 2020
For the Student:
Advocate
Teacher (via telephone)
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 13, 2020
For the Student:
Advocate
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 12, 2019 with the District. P-A. I was appointed on September 21, 2019.
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 was not provided with an IESP for said year. The Parent 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, In terms of pendency, at the December 17, 2019 hearing, the parties agreed that pendency was based upon an IESP developed by the CSE dated February 9, 2017 (P-C) which provided for SETSS, five times per week for one period each time, group service, ; and Speech-Language Therapy, two times per week for 30 minutes each time, 1:1, . A Pendency Order was then issued in this regard. THO-II. At the February 13, 2020 hearing, it was determined with that there was a subsequent IESP dated October 19, 2018 for the 2018-19 school year and the parties agreed that the October 19, 2018 IESP was the appropriate IESP for pendency services. It should be noted that both the February 9, 2017 and October 19, 2018 IESPs provided for the same special education program/services. P-C; IHO-I. Accordingly, an Amended Pendency Order was then issued. IHO-III.
There were three days of hearing in this matter. Hearings were held on December 17, 2019, February 5, and February 13, 2020. Extensions were granted in this case making the final compliance date April 22, 2020.'[1] A list of Exhibits is attached as Exhibit A. The Parent and Impartial Hearing Officer submitted exhibits. P-A—-P-G; IHO-I—IHO-III.
Background
This case involves a 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 2018-2019 school year dated October 19, 2018 and provided for the following:
1. SETSS, five times per week for one period each time, group service, in ; and
2. Speech-Language Services, two times per week for 30 minutes each time, 1:1, in IHO-I.
The Parent filed a Due Process Complaint on September 12, 2019. P-A. I was appointed as an impartial hearing officer on September 21, 2019 after recusal.
Position of the Parties
Parent’s Case
The Parent called two witnesses, and the Parent and placed seven documents in evidence. P-A—P-G.
The first witness was . She has a Master’s degree in special education and a bilingual certification and has taken courses in reading, comprehension, writing, spelling and different techniques to teach children. Tr. 31. She presently works for the and has worked for the in the past. Tr. 31. is an agency that matches special education teachers with students. Tr. 32.
She is familiar with because for the 2019-2020 school year she works as her special education provider. Tr. 32. She sees her five hours a week on a one-to-one basis. Tr. 32-33. She did informal assessments on this child, no formal assessments. Tr. 35. In terms of reading, her ability to read was acceptable but her comprehension was three grades below. Tr. 35. She utilizes the Visualizing and Verbalizing Program by Lindamood-Bell. She also uses the Cube program with her. Her writing level was also three grade levels below and her grammar including the use of periods, commas, etc. was not appropriate. Tr. 36. testified that has really improved. She stated that she loves to learn and loves to do well. Tr. 36. The provider is not working on math because the Parent has not expressed concerns with math. Tr.
37. provides SETSS services to the Student after hours at home. Tr. 37. She works with her two to three times a week for two to three hours. Tr. 39. She feels that she can accomplish more in this format. Tr. 39. She does not communicate directly with her teachers at school but communicates with her mother, who then communicates with her teachers. Tr. 39.
tested that she gets paid $80 per hour. Tr. 40. She did not know how much the agency got paid but assumed they get paid extra since they match the child with a provider, and have supervision for the providers. Tr. 40. She communicates with her supervisor by phone approximately once a month. Tr. 42. stated that she created some original goals for for the 2019-20 school year and used some that were on the former IESP. Tr. 4; IHO-III. The agency did not purchase any supplies and/or learning aids for this Student. Tr. 43. stated that she personally purchased the necessary materials for the Student. Tr. 44.
The next witness was the Parent. She stated that for the 2019-20 school year the Student is attending . The Student is in the eighth grade. She found a SETSS provider after reaching out to a number of people including the people listed on the Parent Outreach page in evidence. P-E. Some were unavailable, others were not in service, and others had a full caseload. Tr. 62. The Parent testified that the SETSS provider comes after school because the Student really wanted that; she didn’t want to be taken out of the classroom. Tr. 63. The current agency that is working with the Student was recommended by her school. Tr. 63. The provider’s name is and she has been working with since September. Tr. 64. She worked with the Student last year as well. Tr. 64. The Parent testified that she speaks to the provider often but stated that the provider does not speak to the Student’s teacher. Tr. 65. Her daughter struggles with reading, comprehension, writing, expressive language, spelling and vocabulary. Tr. 65. The Parent testified that her daughter is making progress. She is able to express herself better and is doing better with her writing. Tr. 67.
In terms of Speech, the Student has not received therapy for several years. Tr. 67. She doesn’t want to be taken out of class and the last outside provider was unable to continue. Tr.
68. The provider is not working with her on math because the teacher is not complaining about it. Tr. 70.
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 [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, ? 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]). 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, the parties are in agreement that no IESP was developed for the 2019-20 school year. Tr. 26. The District did not put on a case and agreed that the services were appropriate and that they were disputing the enhanced rate. Tr. 26. The Parent first placed in evidence, at the December 17, 2019 hearing, an IESP dated February 9, 2017 for pendency, 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. P-C. A Pendency Order was issued on February 8, 2020 providing for pendency in said IESP. IHO-II. The parties, at the February 13, 2020 hearing, however, determined that there was a subsequent IESP dated October 19, 2018, which provided for the same special education program/services. IHO-I. An Amended Pendency Order was processed in this regard. IHO-III. Accordingly, the parties are agreeing to the continuation of the program/services set forth on the October 19, 2018 IESP (IHO-I) for the remainder of the 2019-20 school year.
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. It is clear that the District did not meet its burden of proof in this regard. In fact, the District stated that the District did not find a provider for the Student. Tr. 26. 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-E. The Parent also testified that she reached out to other providers. The Parent did, in fact find a SETSS provider, through the agency, and the Parent is requesting that the agency be paid at the rate of $150 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. testified that she gets paid $80 per hour for providing SETSS services to Tr. 40. She stated that she works with a supervisor and is in touch with her approximately one time per month. Tr. 42. She also stated that the agency did not purchase any supplies and/or learning aids for this Student. Tr. 43. She testified that she personally purchased the materials for this Student. Tr. 44.
(id.).
Based on the customary rate for SETSS providers, and taking into account the amount charged for the Student’s provider ($80) and estimating a reasonable increase for any other direct and indirect costs above that, I will be ordering payment at an enhanced rate of $110 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 October 19, 2018 at the enhanced rate of $110 per hour for the 2019-20 school year.[4] With respect to Speech-Language, an RSA shall be provided within five days of issuance of this Order, if it had not already been provided.
Dated: April 22, 2020
i“
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 9/12/2019 Impartial Hearing Request 5
B 9/11/2019 Retainer Agreement 2
C 2/9/2017 IESP 5
D 12/13/2019 Affidavit of Services 1
E 2019/2020 Parent Outreach 1
F undated Provider’s Certificate 1
G undated Program Description 4
Impartial Hearing Officer’s Exhibits
No. Date Document Pages
I 10/19/2018 IESP 8
II 2/8/2020 Pendency Order 5
III 4/21/2020 Amended Pendency Order 6
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”
[4] During the closure of schools due to Covid-19, this Order may include funding for remote SETSS and other remote services.