New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 191227

Student's Name:

Date of Birth:

District:

Hearing Requested By: Parents

Dates of Hearing: May 26, 2020

June 24, 2020

Hearing Officer: Dora M. Lassinger

Record Closed Date: July 17, 2020

The parent of requested an impartial hearing on November 18, 2019, alleging that the Department of Education (“DOE”) failed to provide the student a FAPE for the 2019-2020 school year, and seeking an Order for the student to continue to receive the services recommended in an IESP developed on October 9, 2018, during the pendency of due process.

(Par. Ex. A). I was designated to hear this matter on May 15, 2020.

A pendency hearing was held on May 26, 2020. By agreement of both parties, I ordered the effective November 28, 2019, and during the pendency of all due process proceedings, the DOE shall continue to provide the student with the following services:

1. Special Education Teacher Support Services (SETSS) five periods per week, group service, direct;

2. Occupational Therapy twice per week for thirty minute sessions, individually;

3. Speech/Language Therapy, twice per week for thirty minute sessions, individually.

A hearing on the merits was held on June 24, 2020.

Department of Education (“DOE”) Position

The DOE did not present any evidence at the hearing. The DOE agreed that the parent was entitled to 180 sessions of SETSS for the duration of the 2019/2020 school year; but did not agree with the rate requested by the parent ($150.00 per hour). (Tr. pp. 8, 27).

Parent’s Position

The only relief requested by the parent, in these proceedings, is funding for 180 hours of SETSS (36 weeks x 5 sessions per week); at the enhanced rate of $150.00 per session. (Tr. pp.

8-9).

The student is an year old girl with a classification of Speech or Language Impairment, who attends the . Her October 9, 2018 IESP provided for SETSS five periods per week in a group, direct service. (Par. Ex. B9). The parent alleged that no IESP was developed for the 2019/2020 school year. (Par. Ex. A).

, the student’s SETSS provider from , (hereinafter referred to as “the agency”) submitted a progress report dated June 17, 2020. She reported that the student struggled with math problem solving; but could solve basic math computation. In reading, the student struggled with decoding, fluency and comprehension. In writing , she struggled with grammar, vocabulary and generating ideas for writing. (Par. Ex. C).

, the supervisor of the agency, testified that the Agency is providing one-to-one SETSS services to the student, at the rate of $150.00 per hour; which she claims is the market rate for the service. (Tr. pp. 11-12). She testified that the rate includes overhead expenses, mentoring and payroll taxes. (Tr. pp. 12-13). As of the date of hearing (June 24); the Agency had only provided 20 hours of services to the student, due to the difficulty in locating providers who were willing to work after school, and due to the delay in funding caused by the lack of a pendency order. The student’s school does not permit SETSS providers in the building.

(Tr. pp. 13-14).

Ms. testified that providers are paid an hourly rate in the range of $70.00 to $100.00 per hour, depending upon their expertise and the services provided; but she did not know the exact amount paid to Ms. , the student’s provider. (Tr pp. 15-16). In general, it is more difficult to locate providers to go to the student’s home; which is also factored into the rate paid to the provider. (Tr. p. 23). She testified that Ms. is a certified teacher, with experience teaching at a . (Tr. p.16). The student is receiving individual sessions, in her home. (Tr. p. 17).

The student’s case is one of 60 cases which Ms. supervises. She could not recall if the student was in first or second grade.; or how she was performing academically. (Tr. p.

18). The student is receiving her services remotely. (Tr. p. 22).

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 (180 sessions) be funded at the rate of $150.00 per hour, for the 2019-2020 school year.

While I find that the services which the parent secured from the Agency are appropriate;

I find that the requested rate of $150.00 per hour is excessive. No evidence was presented that parent was ever invoiced for the services, or paid any portion of it. See Application of a Student with a Disability, Appeal No. 16-044 at 8.

The supervisory/mentoring services provided by the agency do not justify the rate requested. Ms. , who claims to supervise the provider, supervises 60 students; and was not familiar with the student’s grade level or levels of academic performance. She testified that SETSS providers are paid a range of $70.00 to $100.00 per hour; but could not state how much the agency pays the provider. She acknowledged that part of the difficulty and expense in securing a provider for this student, was that her school prohibits providers from entering the building.

For all of the foregoing reasons, I find that the SETSS services provided to the student for 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 180 sessions of SETSS, at the rate of $125.00 per hour; on account of services which were provided, or which should have been provided to the student, during the 2019/2020 school year; upon presentation of proof that the services were actually provided by a New York State certified teacher.

Dated: July 21, 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

A. Parents Due Process Complaint, 11/28/19, 5 pp.

B. IESP, 10/9/18, 12 pp.

C. Progress Report, 6-17-20, 4 pp. Impartial Hearing Officer I. Interim Order on Pendency, 6/4/20, 3 pp.

II. Order of Extension, 6 /24/20, 1 p,