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FINDINGS OF FACT AND DECISION
Case Number: 190807
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: November 22, 2019
January 31, 2020
March 27, 2020
Actual Record Closed Date: April 5, 2020
Hearing Officer: Judith Schneider, Esq.
APPEARANCES November 22, 2019 January 31, 2020
For the Parents:
Attorney
For the District:
District Representative
For the Parents:
Attorney
For the District:
District Representative
March 27, 2020 (remotely)
For the Parents:
Attorney
Mother
Educational Director
For the District:
District Representative
On November 22, 2019, January 31, 2020, and March 27, 2020 I conducted an Impartial Hearing at the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student’).
Procedural History
The proceeding was initiated at the request of the parents (hereinafter “the parent”) by correspondence dated November 11, 2019. (Ex. A) I was appointed Impartial Hearing Officer on November 13, 2019. The parent requested an order concerning the student’s entitlements during the pendency of this matter and subsequent to a hearing conducted on November 22, 2019, by order issued November 26, 2019, the following was ordered from November 11, 2019:
SETSS: 5 periods per week, Group, Direct (Bilingual );
Speech Language Therapy: 3x30 (1:1) per wk. & 1x30 (Group) per wk. (Bilingual );
Counseling: 1x30 per wk, (Bilingual ) Occupational Therapy: 3x30 (1:1) per wk.;
Physical Therapy: 3x30 (1:1) per wk, . (Ex. H) At a scheduled prehearing conference conducted on December 9, 2019, the district stated that it was still investigating with regard to the possibility of settlement and the parent requested the scheduling of an evidentiary hearing. An evidentiary hearing was scheduled for January 31, 2020. (Ex. /) The parent thereafter asserted that parent witnesses were not available on the scheduled date and the hearing was limited solely to a discussion of the status of the matter. An evidentiary hearing was scheduled for March 27, 2020 and held on that date via telephone, remotely, due to the pandemic and district office closure.
The parties moved to extend the compliance date on various occasions in light of settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript and issuance of the decision within the permitted time period. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. (T8, 14, 19, 78-79, Ex. D)
The current compliance date is May 21, 2020. The record closed on April 5, 2020, upon my receipt of the hard copy of the final transcript.
Positions of the Parties
In the hearing request the parent asserted that the district had failed to issue an IESP since March 15, 2016, and requested the services provided in that order for the 2019-2020 SY. (Exs. A, B) Pendency services pursuant to that IESP were not contested by the district and were ordered. (Ex. H)
At the March 27, 2020 hearing the parent submitted an IESP dated November 21, 2018 which provided the same services as provided in the March 15, 2016 IESP and which specified November 22, 2019 as the projected date for the next annual review. (Ex. G) The parent’s request however was limited to: SETSS: 5 periods per week, Group, Direct (Bilingual ); Speech Language Therapy: 3x30 (1:1) per wk. & 1x30 (Group) per wk. (Bilingual ); Occupational Therapy: 3x30 (1:1) per wk. The parent requested an order providing the SETSS services at rate of $175 per hour and the issuance of RSAs for the remaining services. (T21-23, 72, Ex. A)[1]
Th district stated that it had no objection to the provision of the services requested in the hearing request and that authorizations for all related services had been sent after the filing of the hearing request. The district alleged, however, that the SETSS rate requested is not reasonable. (T26, 30)
Accordingly, the sole issue for my determination in this matter is the rate requested by the parent for the SETSS provided during the 2019-2020 SY. (T30)
Cases Presented
The district presented no evidence, testimonial or documentary. The parent submitted documents admitted into evidence (a list of documents in the record is appended) and presented the testimony of one witness-the educational director (‘the director’) of , the agency which provides the services (“the agency’’).
Findings of Fact and Conclusions of Law
SETSS in this matter are provided through the agency. The agency commenced providing services for this student in September 2019. (T49-50,55, Ex. D) The director testified that the provider receives $85 per session for services provided to this student. She is a certified special educator for grades birth-2"' grade and her certificate (Transitional B) was issued in June 2018). (T41, Ex. E) The student is currently in the 3“ grade with academic skills from end of 1* grade to end of 2" grade. (T45, 49-50)
The agency has some 200 teachers providing services to some 700 students. (T51) Although the director could not specify the number of hours for which services are provided by the agency, she estimated that students typically receive 4-5 hours of SETSS per weeks. (T53) Eight persons who are full time agency employees provide supervision and the supervisor for this student is special education certified. (T43) The foregoing suggests that each supervisor is responsible for some 85-90 students. Supervisors generally provide weekly services but the time spent depends on need. (T36, 43, 52-54) The school which the student attends has some 25 students receiving services through the agency and two supervisors provide services for that school. The record is unclear as to whether they also provide supervision in other schools but in view of the number of students the agency serves the evidence indicates they do.
The agency provides certain materials utilized for this student’s instruction- some of which are used by other students and some, including workbooks, that are purchased for this student’s use. (T30-40, 49-50 58, 64-66) Monthly professional development activities are provided with about one half taking a full day and the remainder in the evening for a couple of hours. (T48, 54) The November 21, 2018 IESP states that the student is respectful and it notes no behavioral concerns. (Ex. G) The progress report describes her as “charming” notwithstanding having significant academic and other delays. (Ex. C) The agency provides bilingual SETSS or this student.
The director testified that her understanding is that other agencies charge and customarily receive $155-$220 per hour for similar services. (T37-39) She stated that the agency receives $175 per hour for most students although sometimes the fee is $155. (T61-62)
I note that the sole evidence presented in this matter concerning agency costs is testimonial and no documentary evidence concerning the agency’s income and expenses has been provided. Further, the testimony concerning the extent to which other agencies receive the fees specified is based solely upon the director’s understanding and no basis for the reliability of that understanding has been presented.
The agency seeks a rate of $175 per hour which is in excess of 100% more than the provider receives for her services. The district has not contested the student’s entitlement to the type and level of services requested for 2019-2020 SY but for the rate. Accordingly, I do not address the fact that the hearing request was filed when the student was still entitled to services pursuant the November 21, 2018 IESP.
However even in the event of substantial district failure the rate for a parent selected provider must be reasonable. See e.g Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993). Further, I note that under §$1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(@)(2)(C)G); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006); Appeal No. 08-052. I find that the record here does not support a conclusion that the rate requested is reasonable. While I note various overhead costs (T37) I also note the number of children served by this agency and the absence of documentary evidence as to actual costs of operation. Further there is nothing in the record indicating that this student requires an unusual degree of supervisory and material support or special expertise other than bilingual instruction. Indeed, it appears that this teacher does not have substantial experience and is not licensed for the grade in which the student is enrolled. Finally the record is devoid of information concerning the rate previously paid for services for this student and of the basis for the selection of this agency notwithstanding its rate.(T55, 64) The district has not specified a rate that it considers reasonable. A rate of $125 per hour provides a “mark-up” of close to 50% and is, I conclude, reasonable in view of the evidence presented.
ORDER
The DOE shall issue authorizations for the period commencing November 15, 2019 through the end of the 2019-2020 SY as follows:
!) SETSS: 5 periods per week, Group, Direct (Bilingual ) at a rate not to exceed $125 per hour; 2) RSAs for: Speech Language Therapy: 3x30 (1:1) per wk. & 1x30 (Group) per wk. (Bilingual ); Occupational Therapy: 3x30 (1:1) per wk.; Physical Therapy: 3x30 (1:1) per wk, The parent acknowledged receipt of certain RSAs. Such RSAs as the parent disputes receiving shall be issued/reissued.
Dated: April 14, 2020
JUDITH SCHNEIDER, 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.
EXHIBITS
None
A. Parent Impartial Hearing Request, 11/11/19, 5 pgs.
B. IESP, 3/15/16, 15 pgs.
C. Progress Report, 2/17/20, 5 pgs.
D. Affidavit Regarding Costs of Services,2/3/20, 5 pgs.
E Teacher Certification. Undated, | pg. F Teacher Certification Test Results, 10/23/18, 2 pgs.
G. IESP 11/21/18, 11 pgs.
H Pendency Order, 11/26/19, 4 pgs. Impartial Hearing Officer I PHC Summary
Footnotes
[1] Although counseling was recommended in both IESPs the parent stated that counseling is not sought by the parent at this time. (T22-23) Both IESPS also provide PT as did the pendency order. Although this service was not referenced by counsel in this proceeding, it was not identified as being abandoned and not objected to by the DOE and that service will be ordered.