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FINDINGS OF FACT AND DECISION
Case #: 191628
Student’s Name:
Date of Birth:
Hearing Requested by: Parent
Date of Hearing: 1/22/20, 4/2/20, 6/8/20,7/23/20, 8/19/20,
9/4/20
Actual Record Close Date: 10/1/20
Hearing Officer: Jeanne M. Keefe, Esq. Finding of Fact and Decision #191628
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE HEARING
1/22/20 hearing date:
Esq. — Student
District Representative — District
4/2/20 hearing date: Remote — District
Esq. — Student
District Representative — District
6/8/20 hearing date: Remote — District
Esq. — Student
District Representative — District
7/23/20 hearing date: Remote — District
Esq. — Student
District Representative — District
8/19/20 hearing date: Remote — District
Esq. — Student
District Representative — District
Finding of Fact and Decision #191628 — District
9/4/20 hearing date: Remote — District
Esq. — Student
Educational Director, — Student
District Representative — District
Finding of Fact and Decision #191628 — District
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 12/18/19, the Impartial Hearing Office located at 131 Livingston Street, Brooklyn, New York received the request. On 12/18/19, 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 1/22/20. On 1/22/20 the parties appeared. The Parent made a motion for pendency as follows:
Special Education Teacher Support Services (SETSS) 4x per week, group; Counseling 1x30, 1:1; Speech Language Therapy (SLT) 2x30, individual
The District had no objection to pendency and a pendency order was issued on 1/29/20. The parties advised that the case was being investigated for settlement and requested an adjournment. The case was adjourned to 4/2/20 for a settlement status hearing. On 4/2/20 the parties appeared and advised that the case was still being investigated for settlement and requested additional time for the settlement process. The case was adjourned to 6/8/20 for a settlement status hearing. On
6/8/20 the parties appeared and advised that while the case was still under investigation for settlement, they believed there was a strong likelihood of settlement and requested an adjournment.
The case was adjourned to 7/23/20 for a settlement status hearing. On 7/23/20 the parties appeared and advised that there was no movement on settlement. The case was adjourned to 8/19/20 for the parties to present their respective cases. On 8/19/20 the parties appeared, and the Parent was not prepared to present their case. The case was adjourned to 9/4/20 for both parties to present their Finding of Fact and Decision #191628 respective cases. On 9/4/20 the parties appeared, and the hearing was held.[1] The District did not present any witnesses or evidence and rested. The District advised that they were not disputing that the student requires 4 periods of SETSS services, but they are disputing the enhanced rate.
The Parent presented one witness and submitted evidence to support their case.
FINDINGS OF FACT AND DECISION
The student is fourteen years old and classified with speech and language impairment. attends . was in the 8th grade for the 2019-2020 school year, in a mainstream classroom. struggles in reading, math, and writing, as well as test taking. Her processing speed and memory are slow. received SETSS services 4x per week from Services on a one to one basis during the 2019-2020 school year.
Ida Feller, the Educational Director at Services, testified that struggles with comprehension and that affects her learning and socialization skills. She has poor fluency and she has difficulty maintaining the information that she is learning.
receives 4 hours of SETSS in school from . (birth to grade 2)
is a certified special education teacher but not certified to teach middle school children.
has providers certified to teach middle school children but chose to work with because she has been working with middle school and high school students for a number of years and has a unique way of teaching and connecting with students. testified that is not certified to teach 8th grade students and has been a provider for middle school
Finding of Fact and Decision #191628
students in the past. stated that she does not know why has not pursued her extension for grades 7 to 12. 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 provider. has a master’s degree in special education and has many years of experience as a remedial support teacher, resource room coordinator and special and general education teacher. testified that and work very well as a team. They meet on a weekly basis to ensure that the student is making progress, review the progress, determine whether anything needs to be changed and modify the curriculum if necessary. provides professional development to the teachers in the form of trainings and workshops.
The Parent seeks SETSS 4x per week, one to one, at an enhanced rate of $175 per hour. The $175 rate covers a $90 an hour fee for . The remaining $85 per hour covers the cost of supervision, educational resources, training, and professional development. The SETSS providers are hourly employees. testified that the $175 dollar rate is the average rate charged by other agencies in the area that provide similar services to students.
Finding of Fact and Decision #191628
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 at an enhanced rate. [2]
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 the teacher providing the services to is not certified to teach a middle school student. As this is a case involving services only the burden does not shift to the Parent. However, I do credit the agency representative when she testified that is receiving the
Finding of Fact and Decision #191628
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 .
I do not find the request for an enhanced rate of $175 is supported by the testimony or evidence.
testified that the $175 rate is average but offers no support for the rate other than conversations with unnamed companies providing similar services. In addition, the provider is not certified to provide services to a middle school student. I credit when she testified that the student is making progress with the provider, but she was unable to provide any explanation as to why did not obtain the proper certification. 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.
Finding of Fact and Decision #191628
ORDER
Therefore, it is hereby ordered that that the New York City Department of Education provide SETSS services 4x per week, one to one, at the enhanced rate of $125 per hour to for the 2019-2020 school year. [3]
Dated: October 5, 2020
___________________________________
Jeanne M. Keefe
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.
Directions and forms can be found on the Office of State Review website:
http://www.sro.nysed.gov/RevisedRegulationsOverview.html
Finding of Fact and Decision #191628
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 22, 2020
A. Impartial Hearing Request, dated 12/18/19, 3 Parent pages
B. IESP, dated 9/16/19, 13 pages Parent
DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 4, 2020
C. Program Description, undated, 3 pages Parent
D. Teacher Certificates, undated, 1 page Parent
E. Progress Report, dated 2/17/20, 5 pages Parent
F. Remote Learning Plan, undated, 2 pages Parent
POST HEARING SUBMISSION BY THE HEARING OFFICER
I. Statement of Adjournments and Extensions, IHO
undated, 1 page
Footnotes
[1] The parent did not appear at the hearing. , Esq. advised that he was authorized to proceed in the absence of the parent. (t. 49)
[2] The Parent advised that the only issue for this hearing was the SETTS at an enhanced rate of $175 per hour. (t. 51)
[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. (t.50)