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FINDINGS OF FACT AND DECISION
Case Number: 193011
Student’s Name:
District:
Hearing Requested By: Parent
Dates of Hearings: May 26, 2020
June 17, 2020
August 11, 2020
Record Close Date: August 31, 2020
NAMES AND TITLES OF PERSONS WHO APPEARED MAY 26, 2020
Esq. Attorney — Student
No one appeared — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 17, 2020
Esq. Attorney (via telephone) — Student
District Representative (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 11, 2020
Esq. Attorney (via telephone) — Student
Parent (via telephone) — Student
Manager of Special — Student
Education Department (via telephone) — Student
District Representative (via telephone) — DOE
Introduction: — DOE
This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by , the Parent (“Parent”) on behalf of , the student (“Student”), through their attorney, , Esq. from the by filing a Due Process Complaint dated March 2, 2020 with the District. P-A. I was appointed on March 4, 2020.
The Parent maintains that as a matter of law, her daughter is entitled to an appropriate special education according pursuant to both the IDEA and Section 504 of the Rehabilitation Act and Article 89 of the New York Education Law. The Parent is alleging that her daughter, was denied FAPE for the 2018-19 and 2019-20 school years and was denied service for the under New York State Education Law Section 3602-c. For the 2018-19 school year, the Student was not provided with a timely IEP and was not provided with a timely IESP for said year. The Parent is seeking enhanced rate Special Education Teacher Support Services (SETSS), ten hours per week, for each of the school years. The District is in agreement that the Student is entitled to ten hours per week of SETSS for the 2018-19 and 2019-2020 school years.
There were three days of hearing in this matter. Hearings were held on May 26, June 17 and August 11, 2020. Extensions were granted in this case making the final compliance date September 12, 2020.[1] A list of Exhibits is attached as Exhibit A. The Parent and the Impartial Hearing Officer submitted exhibits.
Background
This case involves a nineteen year old student. During the 2018-2019 and 2019-20 school years, attended where the Student was unilaterally placed by her Parent.
The last IESP that was developed for this Student was completed February 26, 2020 and provided SETSS ten times per week one period each time, group service, . IHO-I.
Prior to this an IEP was developed for this Student on January 14, 2019 and provided for the following:
2. Counseling Services, 1:1; one time per week, 30 minutes each time, English;
1 The Parties moved to extend the compliance date in this matter several times during the course of the hearing. In considering the requests, I weighed the cumulative impact of the relevant factors and found that the requests were in accordance with the requirements of due process. Accordingly, the requests for extension of the case compliance were granted.
3. Counseling Services, group service, one time per week, 30 minutes each time,
English;
4. Occupational Therapy, 1:1, three times per week, 30 minutes each time, English;
5. Speech-Language Therapy, 1:1; two times per week, 30 minutes each time,
English; and
6. Speech-Language Therapy, group service, one time per week, 30 minutes teach time, English. IHO-II
The Parents filed a Due Process Complaint on March 2, 2020. I was appointed an impartial hearing officer on March 4, 2020.
Position of the Parties
Parent’s Case
The Parent called one witness, and placed nine documents in evidence. P-A—P-I. is the manager of the special education department for . Tr. 22. They are an agency that assists children in New York City with IEPs and IESPs to obtain services. Tr. 23. For the 2018-19 school year, charged $135 an hour for SETSS services and for the 2019-20 school year, they charged $145 an hour. Tr. 24. Onsite in each school is a supervisor that oversees the providers. They sit with the providers, help them access each child, create goals, and constantly review and update the goals to make sure they are targeting the student’s needs. Tr. 24. They also have a clinical supervisor overseeing the overall program. Tr. 25. In ’s school, the clinical director was , the supervisor was and the Student had multiple providers. Tr. 26. The providers are paid between $70 to $80 per hour. Tr. 26. The agency also provides professional development to the providers. Tr. 27. speaking providers are paid more than English speaking providers since they are hard to come by. Tr. 27. This Student is being instructed in bilingual . Tr. 28. The clinical director and supervisor get paid a salary. stated that as for the breakdown of costs, at times, there is a deficit involved and the agency fee just covers the costs or not even covers the costs of what is involved. Tr. 29
District’s Case
The District did not call any witnesses and did not place any documents in evidence. The District is in agreement that the Student is entitled to ten hours of SETSS per week for the 2018-
19 and 2019-20 school years. The District is not in agreement, however, with the rate that the provider is charging.
Findings
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a],[b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a],[c], 300.138[b]).
However, under State law, parents of a New York State resident student with a disability who is placed in a nonpublic school and who seeks to obtain educational “services” for his or her child may file a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[2] “Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent” (Educ. Law § 3602-c[2][a]. In such circumstances, the district of location’s CSE must review the request for services and “develop and [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an [IEP]” (Educ. Law § 3602-c[2][b][1]). The CSE must “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” (id.).[3] Additionally, unlike the provisions of the IDEA, section 3602-c provides that a parent may seek review of the recommendations of the CSE pursuant to the impartial hearing and State-level review provisions of Education Law § 4404 (id.). See Application of the Board Of Educ., Appeal No. 18-088
The parties are in agreement that the Student is entitled to ten hours per week of SETSS Services for the 2018-19 and 2019-20 school years. The only issue the District is disputing is the amount of the enhanced rate.
It is clear that the Parent utilized for SETSS services for the Student. Based on the Affidavits for the respective years from , the agency charged $135 per hour for SETSS services for the 2018-19 school year and $145 per hour for the 2019-20 school year. P-D; P-F. testified as the manager of the special education department for . She stated that the providers get paid between $70 - $80 per hour and that there is also a clinical supervisor that oversees the providers and a clinical director, that are paid for overseeing the Student and providers. They also provide professional development to the providers. also stated that required a bilingual provider and that they are paid more than English speaking providers. Based on the foregoing, I will be ordering ten hours per week of SETSS services, in , at an enhanced rate not to exceed $135 for the 2018-19 school year and ten hours per week of SETSS services, in , at an enhanced rate not to exceed $145 for the 2019-20 school year.
Based on the Parent’s actions, I find that the Parent cooperated with the District and analysis of equitable considerations offers no basis to rule against her.
ORDER
Based upon the foregoing, it is hereby
ORDERED, that for the 2018-19 school year, the Student shall receive SETSS services, ten hours per week, in , at an enhanced rate not to exceed $135 per hour, and for the 2019-20 school year, the Student shall receive SETSS services, ten hours per week, in , at an
4 enhanced rate not to exceed $145 per hour. Dated: September 9, 2020
EliseB. Kestenbaum
Elise B. Kestenbaum, Esq.
Impartial Hearing Officer
During the closure of schools due to Covid 19, this Order may include funding for remote SETSS services.
Appendix A
Evidence
District’s Exhibits
No. Date Document Pages
none
Parents’ Exhibits
No. Date Document Pages
A 3/2/2020 Impartial Hearing Request 3
B 1/10/2019 SEIT Progress Report 6
C 2/5/2019 OT Progress Report 2
D 2018-2019 Affidavit 1
E 1/7/2020 SEIT Progress Report 8
F 2019-2020 Affidavit 1
G undated Provider Certifications 7
H 8/21/2018 Parent Ten Day Letter 1
I 8/21/2019 Parent Ten Day Letter 1
Impartial Hearing Officer’s Exhibits
No. Date Document Pages
I 2/26/2020 IESP 15
II 1/14/2019 IEP 28
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the 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 served upon the opposing party no later than 25 days from the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally serviced upon opposing party within 40 days from the date of decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of 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 and model forms are available at: www.sro.nysed.gov/appeals.htm.
Footnotes
[1] Special Class, all academic subjects, 15:1, seven times per week, one period each time, English;
[2] State law provides that “services” includes “education for students with disabilities,” which means “special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)] (Educ. Law § 3602-c[1][a],[d]).
[3] State guidance explains that providing services on an “equitable basis” means that “special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as comparted to other students with disabilities attending public or nonpublic schools located within the school district’ (“Chapter 378 of the Laws of 2007 – Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c,” Attachment 1 at p. 11, VESID Mem. [Sept. 2007], available at http://www.p12.nysed.gov/specialized/publications/policy/nonpublic907.pdf). The guidance document further provides that “parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to is public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program” (id.).