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CASE NUMBER: 535074 - NYC: 192279
FINDINGS OF FACT AND DECISION
Case No: 192279
Student’s Name: [Redacted text] Date of Birth: [Redacted text]
District: [Redacted text]
Hearing Requested By: Parents
Record Closed Date: September 22, 2020 Hearing Officer: Diane Cohen, Esq.
On July 2, 2020, I was appointed hearing officer pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), in this matter. We convened on July 13, 2020, July 22, 2020, August 12, 2020, and September 10, 2020. The Parents request funding for the provider they located for special education teacher support services (“SETSS”) for the 2019-2020 school year.
The parties requested an extension of the date my decision was due. I granted that request due to witness availability and extended it for thirty days to October 15, 2020. Ultimately, I set the record closed date as September 22, 2020. My decision is therefore due no more than two weeks later, on October 6, 2020. APPLICABLE STANDARDS
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982)); Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 69 IDELR 174 (Mar. 22 2017). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Rowley; Endrew F.
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404(1)(c); see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010)).
FINDINGS OF FACT
The individualized education services program developed on October 22, 2018, provides for seven periods per week of SETSS, in a group, in English, and related services of speech-language therapy (Exh. F).
The Parents did not contact the DOE to inform them that they were unable to locate a provider (Tr. 37) although the SETSS authorization form specifies a DOE contact (REDACTED), with a phone number and an address, for the parents to contact if they need assistance locating a provider or have any questions (See Exh. B, p. 1).
The Parents obtained SETSS from [Redacted text] for the 2019-2020 school year. [Redacted text] is requesting $125 per hour (Tr. 71). [Redacted text] pays the provider $75 per hour (Tr. 74).
CONCLUSIONS OF LAW
The parties are not in disagreement regarding the special education program or the funding of the provider. The disagreement relates only to the rate requested by the provider (See Tr. 19, 80).
The Parents request payment to [Redacted text] in the amount of $125 per hour. [Redacted text] pays its provider $75 per hour. It therefore is requesting $50 per hour for overhead. I find that amount excessive. I find that a more typical and more reasonable rate would be $110 per hour, which still provides for $35 per hour for overhead. I note that there is no evidence that a licensed special education teacher needs supervision or support. No evidence was put into the record regarding the specific costs of any resource materials or other expenses which would justify such an excessive mark-up over the rate paid to the provider. Moreover, the equities in this case indicate that the Parent did not give the DOE the opportunity to locate a provider at the DOE rate, as the Parents did not contact the DOE to inform them that they were unable to locate a provider.
The Parents argue that a New York State Review Officer decision holds that the parent is entitled to reimbursement from the district for the amount she spent (See IHO Exh. I). I note, however, that there is no assertion in this case that the Parent spent anything. It is the provider who is requesting payment. There is no evidence of an obligation by the Parent to pay the provider or to pay any specific amount. I note as well, that that language in Appeal No. 17-034 was dicta, as the case was remanded to the hearing officer to develop the facts. That generalized language does not necessarily relate to a situation in which the amount requested by the parents is in dispute or in which the amount requested was not an amount that the parents paid or were obligated to pay.
ORDER
I THEREFORE ORDER that the DOE shall fund up to seven periods per week of SETSS in the amount of $110 per hour, for the 2019-2020 school year, upon presentation of documentation as to the dates and the hours of services provided.
Date: September 23, 2020
DIANE COHEN, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act. If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed. An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov
DOCUMENTATION
Parent Exhibits
- • Hearing Request, 1/23/20, 3 pages
- • SETSS Authorization, 9/1/19, 2 pages
- • Findings of Fact and Decision, 10/25/19, 4 pages
- • Teacher Certificate, 3/4/19, 1 page
- • Call List, 11/1/19, 1 page F. IESP, 10/22/18, 12 pages IHO Exhibits I. Emails among IHO and parties, 9/17/20 – 9/20/20, 1 page
WITNESS TESTIMONY:
DOE WITNESSES:
None
PARENT WITNESSES:
Mother (By Tel. on 7/22/20) [Redacted text] (By Tel. 9/10/20)