New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 190516

Student's Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearing: December 20, 2019

February 13, 2020

March 6, 2020

May 15, 2020

Record Closed Date: June 2, 2020

Hearing Officer: Dora M. Lassinger

The parent of requested an impartial hearing on October 30, 2019 challenging the Department of Education’s (“DOE’s”) failure to develop an appropriate IESP for the 2019-2020 school year, and requesting continuation of Special Education Teacher Support Services (“SETSS”) at an enhanced rate, issuance of an RSA (related services authorization), and twelve month programming. (Par. Ex. A). I was designated to hear this matter on November 1, 2019.

A pre-hearing conference was held on December 3, 2019. A hearing on the merits was held before me on February 13, 2020 and May 15, 2020.

Issues for Hearing

At the hearing, the parent withdrew her challenges to the last IESP, which was dated February 8, 2019, and the request for twelve month programming. (Tr. p. 24). As no related services were recommended, the only remaining issue was whether the parent was entitled to the enhanced rate for the recommended SETSS. (Tr. pp. 24-25).

Evidence at Hearing

The DOE did not present any evidence at the hearing. The DOE opposed the parent’s request for an enhanced rate of $150.00 per hour for the SETSS. (Tr. p. 50).

The student is an with a classification of Learning Disability. On

February 8, 2019, the CSE recommended that he receive three periods per week of SETSS, direct service, in a group, .(Par. Ex. B). The student is in the third grade at . (Tr. pp. 30, 35).

, the owner and case manager/supervisor of , testified that she has a Master’s Degree in special education and certification to teach students with disabilities through grade 6, as well as a

Certificate. (Tr. p. 28). She received training in ABA instruction and Orton-Gillingham reading instruction. (Tr. pp. 27-28; Par. Ex. C).

testified that she was contacted by the parent at the start of the 2019-2020 school year, for help in locating a SETSS provider. She provided the parent with the DOE’s

SETSS registry; however, the parent reported that she was unable to locate a provider on that list. then secured , as the provider for the student. is also licensed in special education, for grades 1 through 6, and holds an advanced certificate in bilingual special education and speech and language disabilities. (Tr. pp. 29-30; Par. Ex. E).

is paid $80.00 per hour for his services. (Tr. p. 36).

provided supervision to , including an evaluation of the student, developing goals and a plan, and follow up meetings with the provider on a monthly basis. (Tr.

p. 31). She did not observe the provider working with the student. (Tr. p. 32). She testified that the student had difficulty attending; and was deficient in his reading, writing and math skills.

She stated that he progressed in all subject areas, and that the services provided to him were appropriate. (Tr. pp. 30-32). She testified that the student’s teacher reported that the SETSS helped the student progress and integrate better in the classroom. (Tr. p. 39). She testified that she provides supervision for 70 students, on a rotating basis; and instructs providers in how to monitor the progress on their own. (Tr. pp. 41-42).

In an affidavit dated January 14, 2020, wrote that the rate for the services provided to the student between September 5, 2019 and June 30, 2020 (3 hours per week for 40 weeks) was $150.00 per hour; and that no payments had been received. (Par. Ex. C). She testified that the rate includes providing supervision to the provider, communication with the parent and school, and the agency’s overhead. (Tr. p. 33).

, the student’s mother, testified that she contacted the five providers listed in Par.

Ex. D; from a list of DOE providers given to her by ; but that none were available. (Tr. pp. 43-44). She believes that the provider from has helped her son to function at school and make progress. (Tr. pp. 44-45). has not been billed by , and has not made any payments to the Agency, (Tr. p. 49).

Findings of Fact, Conclusions of Law and Order

Education Law § 3602c[2][b][1] provides as follows:

“ For the purpose of obtaining education for students with disabilities, as defined in paragraph d of subdivision one of this section, such request shall be reviewed by the committee on special education of the school district of location, which shall develop an individualized education service program for the student based on the student's individual needs in the same manner and with the same contents as an individualized education program. The committee on special education shall 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. Review of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter.”

The student’s entitlement to special education services, on-site at his private school, arises under Education Law § 3602c[2][b][1]. Application of the School District, 09-115; See Bay Shore Union Free School District v. Kain, 485 F. 3d 730 (2d

Cir. 2007).

A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S.

359 (1985). This right has been extended to claims for reimbursement, based upon a school district’s failure to provide appropriate services in accordance with Education Law §3602-c.

Application of a Student with a Disability, 09-068.

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). In these proceedings the DOE did not present any evidence that it provided the recommended SETSS to the student. The parent withdrew all claims except for a request that the SETSS (3 hours per week) be funded at the rate of $150.00 per hour, for the 2019/2020 school year.

Although I find that the services provided were appropriate, I find that the requested rate of $150.00 per hour is excessive. The rate charged is almost twice what is paid to the provider.

No evidence was presented that parent was ever invoiced for the services, or paid any portion of it, although the services began eight months before the hearing. See Application of a Student with a Disability, Appeal No. 16-044 at 8. There is no evidence that the DOE was informed that the parent would be seeking public funding for the SETSS at the enhanced rate, before these proceedings were commenced on October 30, 2019.

While I recognize that the Agency has overhead expenses that should be considered in the rate; the additional supervisory services provided by the agency are not part of the student’s IESP, and do not justify the rate requested.

For all of the foregoing reasons, I find that the SETSS services provided to the student during the 2019/2020 school year should be funded at the rate of $125.00 per hour.

ORDER

For all of the foregoing reasons, it is hereby ordered that the DOE shall fund the SETSS provided to the student, during the 2019/2020 school year (3 hours per week), at the rate of $125.00 per hour, upon presentation of proof that the services were actually provided by a certified special education teacher.

Dated: June 2, 2020 Dora M. Lassinger

DORA M. LASSINGER, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center..

DOCUMENTATION ENTERED INTO THE RECORD

Parents

A	Impartial Hearing Request, 10/30/19, 6 pp.
B	IESP, 2/8/19, 9 pp.
C	Affidavit of Services, 1/14/20, 1 p.
D	Parent Outreach, 2019/2020, undated, 1 p.
E	Provider Certificates, undated, 2 pp.

Impartial Hearing Officer

I. Extensions, various dates, 5 pp.