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FINDINGS OF FACT AND DECISION
Case #: 190932
Student’s Name:
Date of Birth:
Hearing Requested by: Parent
Date of Hearing: 12/16/19, 3/4/20
Actual Record Close Date: 3/27/20
Hearing Officer: Jeanne M. Keefe, Esq. Finding of Fact and Decision #190932
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE HEARING
12/16/19 hearing date:
For the Student:
Esq.
For the District:
District Representative (via phone)
3/4/20 hearing date:
For the Student:
Esq.
parent
Educational Director, (via phone)
For the District:
District Representative
INTRODUCTION
An impartial hearing request was filed on behalf of (“or the student”) by her parent and , Esq. pursuant to the Individuals with Disabilities Education Act of 2004. On 11/14/19, the Impartial Hearing Office located at 131 Livingston Street, Brooklyn, New York received the request. On 11/18/19, I was appointed as the Impartial Hearing Officer to hear the matter.
BACKGROUND
At the request of the Parent a pendency hearing was scheduled for 12/16/19. On 12/16/19 the parties appeared. The Parent made a motion for pendency as follows: Special Education Teacher Support Services (SETSS) 5x per week, group; Counseling 1x30, group; Speech Language Therapy (SLT) 2x30, individual
The District had no objection to pendency and a pendency order was issued on 1/6/20. The Parent advised that they did not believe the case will be settled and stated that they wanted to proceed with the hearing. At the request of the Parent, the matter was adjourned to 3/4/20 for the parties to present their respective cases. On 3/4/20 the parties appeared, and the hearing was held. The District did not present any witnesses or evidence and rested. The Parent presented one witness and submitted evidence to support their case.
FINDINGS OF FACT AND DECISION
The student is years old and classified with speech and language impairment[1] attends is currently in the 8 grade and in a mainstream classroom.
struggles in reading, math and writing, as well as test taking. Her processing speed and memory are slow. started receiving SETSS 5x per week from on a one to one basis during the 2019-2020 school year.
, the Educational Director at , testified that is motivated to succeed but she is significantly delayed in her academics and social skills. And she requires a great deal of multisensory and specialized learning and support to help her learn. Ms. testified that while is in the 8" grade she is 3 to 4 grade levels behind in all areas. Ms. estimated that her decoding level is early 3 grade, while her comprehension level is at the 5" grade level.
requires a lot of modification of the general education curriculum. When takes exams, they are 8" grade content but modified to her level. also takes standardized state assessments at the 8" orade level. Ms. testified that requires one to one SETSS based on her significant academic needs as well as her social-emotional needs. was resistant to receiving the services and the only way she would agree to work was in a one to one setting.
receives 2 hours of SETSS in school from and 3 hours of SETSS after school from . Ms. mostly pulls out of the classroom, in the beginning they tried to push in more, but the student was self-conscious. The after school services are held in the providers home. Both Ms. (birth to grade 2) and Ms. (grade 1-6) are certified ' The classification is not in dispute. (t. 35) Finding of Fact and Decision #190932 special education teachers but not certified to teach middle school children. has providers certified to teach middle school children but chose Ms. and Ms. to work with because they have worked primarily with upper elementary students and that is their area of passion. Ms. stated that the fact that the providers are not certified to teach middle school students is a technicality. Ms. testified that has made progress. The progress report by states that is responding to services and is making progress. (Ex. D) is the supervisor for the SETSS providers and is certified in New York State to teach students with Disabilities Birth to Grade 2, Early Childhood Birth to 2 and Childhood Grades
1-6. Ms. testified that the role of the supervisor is to collaborate with the providers, the student’s family and the general education teachers to assure that there is communication and the generalization of skills. provides professional development to the teachers in the form of trainings and workshops.
The Parent seeks SETSS 5x per week, one to one, at an enhanced rate of $175 per hour. The $175 rate covers an $85 an hour fee for Ms. and Ms. . The remaining $90 per hour covers the cost of supervision, educational resources, training and professional development. The SETSS providers are hourly employees. Ms. testified that the $175 dollar rate is the average rate charged by other agencies in the area that provide similar services to students.
CONCLUSIONS OF LAW
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. §1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir.
2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. §1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. §1414 (d); 34 C.F.R. 300.320). As noted by the State Review Officer (“SRO”) in Application of a Student with A Disability, Appeal No. 11-068 the burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition for a unilateral placement has the burden of proof regarding the appropriateness of such placement. (N.Y. Education Law § 4404 (1) (c); see MPG v. New
York City Dep’t of Educ., 2010WL3398256 at *7 (SDNY Aug. 27, 2010). In the case at hand the Parent is seeking the continuation of special education services, in the form of SETSS, that had received under the last agreed upon IESP (Ex. B) but seeks the service as one to one and at an enhanced rate.[2] 7
I find that the District failed to provide with FAPE for the 2019-2020 school year. The District failed to present any witnesses or evidence to establish that FAPE was provided to for the 2019-2020 school year. In addition, at no time did the District dispute the position of the Parent other than to object to the enhanced rate and to note that neither the teachers or the supervisor providing the services to are certified to teach a middle school student. The District also noted that the IESP (Ex. B) states that SETSS should be in a group setting but did not rebut the position of the Parent as to the need for one to one SETSS. As this is a case involving services only the burden does not shift to the Parent.
However, I do credit the agency representative when they testified that is receiving the requested service, that the service is appropriate, that she benefits from the service and is making progress.
I find that one to one SETSS services are appropriate based on the credible testimony of Ms.
I do not find the request for an enhanced rate of $175 is supported by the testimony or evidence. Ms.
testified that the $175 rate is average but only cites to what four other providers charge. In addition, both the providers and their supervisor are not certified to provide services to a middle school student. I credit Ms. when she testified that the student is making progress with these providers but not that the failure to obtain the proper certification is a mere technicality. The DOE provider rate is approximately $42 per hour which I do not find appropriate. I find an enhanced rate of $125 is appropriate in this instance.
ORDER
Therefore, it is hereby ordered that that the New York City Department of Education provide SETSS services 5x per week, one to one, at the enhanced rate of $125 per hour to for the 2019-2020 school year.[3] °
Dated: March 30, 2020
Jeanne M. Keefe
Impartial Hearing Officer (t.19)
DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 16, 2019
A. Impartial Hearing Request, dated 11/14/19, 6 Parent
B. IESP, dated 5/1/19, 12 pages Parent
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 4, 2020
C. Affidavit of Services, dated 2/19/20, 1 page Parent
D. Progress Report, dated 2/17/20, 5 pages Parent E. Providers Certifications, dated 8/1/16, 2 pages Parent F. Curriculum Vitae of Supervisor, undated, 2 Parent
POST HEARING SUBMISSION BY THE HEARING OFFICER
I. Statement of Adjournments and Extension, IHO undated, 1 page
Footnotes
[1] The classification is not in dispute. (t. 35)
[2] The Parent had originally sought RSA’s for speech language therapy and counseling. At the conclusion of the hearing the Parent advised that RSA’s had been issued for speech language therapy and that they no longer wished to pursue counseling services. Therefore, the only issue remaining was one to one SETSS at an enhanced rate of $175 per hour. (t. 64)
[3] The parties were advised to be sure to address all issues, and relief requested, set forth in the due process complaint or they would be deemed abandoned.