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CASE NUMBER: 537298 - NYC: 194095
FINDINGS OF FACT AND DECISION
Case Number: 194095
Student’s Name: REDACTED (hereinafter the “Student”)
Date of Birth: REDACTED
District: REDCATED
Hearing Requested By: REDACTED
(hereinafter the “Parent”)
Record Close Date: December 10, 2020
Date of Hearing: December 10, 2020
Hearing Officer: Harry Aristargos Christodoulou
Hearing Officer’s Fact of Finding and Decision
_________________________________________________________________________________________________
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 10, 2020
For the Student:
REDACTED (hereinafter referred to as “Parent’s representative”)
REDACTED (hereinafter referred to as “Parent’s Witness”)
For the Department of Education:
REDACTED (hereinafter referred to as “District’s representative”)
Hearing Officer’s Fact of Finding and Decision
_________________________________________________________________________________________________
INTRODUCTION
This matter comes before the undersigned Hearing Officer at the request of the Parent of the Student, a REDACTED-year-old school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”).
BACKGROUND
On or about May 28th, 2020, the Parent filed a due process complaint (“DPC”) against the District under case number 194095 (Exhibit P-A) pursuant to the IDEA. I was appointed on October 21st, 2020 to conduct an impartial hearing pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1) to determine the claims in the DPC.
At the main hearing, after confirming that there was no objection from the District’s representative as to the Parent’s proposed exhibits, Exhibits P-A to P-F were admitted into evidence.
POSITIONS OF THE PARTIES AND EVIDENCE PRESENTED
District’s case:
The District did not put on a case, but chose to cross-examine the affiant, the Parent’s Witness.
The District’s representative asserted in closing that:
- • The DOE does not dispute that the Student does require services.
- • The Committee on Special Education sent out a Parent notice of intent in April 2019 as it does every year, and the Parent did not return the letter stating if the services were not being provided.
- • The SETSS authorization form was sent to the Parent for the start of the 2019-20 school year, but it was not returned by the Parent during that school year.
- • The District finds that the enhanced rate of $150.00 per hour is extremely excessive, even with the overhead costs, divided by the 150 students they provide services to.
- • The SETSS Provider is only licensed to grade 6 and was providing services to an 8th grader during the 2019-20 school year. His rate was only $70.00 per hour.
Parent’s case:
The Parent’s representative asserts that:
- • The burden of proof rests upon the District in all respects.
- • The Student was denied a FAPE for 2019-20 school year.
- • A timeously IESP was not in place at the start of the school year.
- • There is no disagreement that the Student was entitled to receive at least 3 hours of SETSS per week and that the DOE failed to make a SETSS provider for the Student.
- • It is the DOE’s responsibility to implement the IESP, not the Parent’s responsibility.
- • The Parent attempted to find a SETSS provider but was unsuccessfully at the DOE’s standard rate. She was only able to find one at the Agency’s rate.
- • There is no evidence that a letter was sent to the Parent or that she did not return it.
- • There is no requirement or regulation that requires a teacher be certified at a particular grade level to be able to provide SETSS for a student. The Parent need only obtain an appropriate provider for her child (citing Carter) in unilateral placements.
- • The SETSS Provider was a licensed special education teacher with certification in grades 1 through 6, which is fairly close to the Student’s grade at the time.
- • Clearly there is a shortage of SETSS providers as evidenced by the DOE’s own failure to make one available to the Student and the Parent’s difficulty in finding one of her own accord.
- • It would be unreasonable, improper and illegal to attempt to shift the responsibility to the Parent and then to have the Parent’s claim reduced or denied due to the SETSS provider not being certified or qualified at the Student’s particular grade level.
- • The District bears the onus and did not present any evidence that the Parent could have found a SETSS provider at a lower rate.
- • It would be unfair after the DOE improperly shifting the onus to the Parent to find a provider to then require the Parent to make enquiries as to the agency’s overheads and the profits it is making is “unreasonable or reasonable” or run the risk of not get funding for the services the parent was forced to obtain independently.
The Parent’s representative called Parent’s Witness to testify. Parent’s Witness testified:
- • In examination in-chief (Exhibit P-E), that:
- • The Agency agreed to provide the Student with three hours of SETSS per week for the 2019-20 school year, starting from 09/01/2019 and ending on 03/04/20 at a rate of $150.00 per hour, which is commensurate with other SETSS agencies in New York City (Exhibit P-E-1).
- • In addition to the amount paid to the SETSS providers, the remainder of the fee is used by the Agency to pay for overhead, including office staff, materials, training, supervision, assessments etc. (Exhibit P-E-1) [The breakdown was further elaborated on during cross-examination.
- • The SETSS Provider was the SETSS provider for the Student for the 2019-2020 school year and that he is a certified special education teacher (Exhibit P-E-1).
- • In total, the Agency provided 68 hours to the Student for the 2019-2020 school year totaling $10,200.00 and the Agency has received $0 for such services (Exhibit P-E-2).
- • In cross-examination, that:
- • The Student was in the REDACTED grade, as he was REDACTED years-old (which was clarified by the Parent’s representative in re-examination that the Student was REDACTED years-old and in REDACTED grade for the 2019-20 school year).
- • Although the SETSS Provider has a license for students with disabilities licensed grade 1 – 6, this case was difficult to find a provider for the Student for in-home services.
- • The SETSS Provider does see/treat a lot of older children.
- • The SETSS Provider earned $70 an hour.
- • The makeup of the Agency’s rate includes, inter alia: office staff; clinical supervisors; payroll team; administrators; in-house program that was purchased, which is a robust system; many supplies; tablets for students and teachers etc.
- • Part of the program purchased in 2019-20 school year includes the option for providers to opt in to get training/classes. The SETSS Provider did choose classes/training and the Agency did pay for them.
- • The Agency provided for about 150 students for the 2019-20 school year.
FINDINGS OF FACT AND DECISION
The IDEA provides that children with disabilities are entitled to a FAPE[1]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”)[2]. A school district has offered a student a FAPE when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits[3].
To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”[4]. If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits[5].
The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE[6]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”[7].
This case involves a parentally placed student with an individualized education services program[8] (“IESP”) rather than an IEP. Students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP from the public school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them[9]. The IESP must be developed in the same manner and with the same contents as an IEP is developed. School districts are required to provide special education services pursuant to the IESP. Such services must be provided on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.
Per a New York State Education Department guidance document[10]:
“The term "equitable basis" means that special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district. The new State legislation is intended to maintain the level of services provided to NYS nonpublic students with disabilities through IEPs...
… Accordingly, parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program. A nonpublic student may not be denied services that a public school student would receive based solely upon his or her status as a nonpublic student...”
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement[11].
Denial of a FAPE:
My findings regarding a denial of FAPE by the District for the 2019-2020 school year are as follows:
- • Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.
- • Given the District’s decision not to put on a case but merely challenged the rate claimed, there is no dispute as to the Student’s entitlement to the requested SETSS, namely 3 hours of SETSS per week. This is confirmed in the DOE’s own authorization for sent to the Parent dated 09/01/2019 (Parent Exhibit P-C), wherein it authorized SETSS up to a maximum of 108 hours for the school year.
- • The District must provide the SETSS for the entire 2019-2020 school year in accordance with the Student’s IESP and make arrangements for the SETSS to be provided.
- • But for the Parent having located an agency to provide the SETSS, the Student would likely not have received any SETSS services during the 2019-2020 school year.
- • A denial of FAPE is essentially conceded, given that no case has established otherwise and the burden being on the District.
Claim for Recovery at an “Enhanced Rate”:
Notwithstanding my finding that the Student was denied a FAPE during the 2019-2020 school year, that is not the end of the enquiry. The District challenged both the rate being claimed by the Parent, namely the enhanced rate, and the credentials of the SETSS Provider.
In the present case, the SETSS Provider was not called as a witness and the only evidence presented regarding his qualifications was Parent Witness’ testimony that: the SETSS Provider is certified special education teacher (Exhibit P-E-1); he has a license for students with disabilities licensed grade 1 – 6 (in cross-examination); he sees/treats a lot over older children (in cross-examination); and the Teacher Certification Lookup printout dated 12/01/2020 (Parent Exhibit P-F).
According to the Teacher Certification Lookup printout dated 12/01/2020 (Parent Exhibit P-F), the SETSS Provider held at the time that the services were provided to the Student, a “Childhood education (grade 1 - 6) Internship Certificate” and a “Student with Disabilities (grade 1 - 6) Internship Certificate”. Although the Parent’s representative argues that grade 6 is just below the Student’s grade, I will point out that an internship certificate is not the same level of certification/credential as holding a “Student with Disabilities (grade 1 - 6) Professional Certificate”.
I find, on a balance of probabilities that the SETSS Provider, who provided 68 (sixty eight) hours of SETSS to the Student during the 2019-20 school year, only held an internship certification for “grades 1-6” and was not certified for a child in REDACTED grade, being the Student’s grade at the time.
The Parent's representative argued in closing that the Parent is not obligated to meet the same standards as the District in securing services for the Student, and therefore the fact that a provider is not certified to provide SETSS in the REDACTED grade is not a bar to recovery.
The Parent's representative further argues that it would be unreasonable, improper and illegal attempt to shift the responsibility to the Parent and then to have the Parent’s claim reduced or denied due to the SETSS Provider not being certified or qualified at the Student’s particular grade level.
This is not the first time that such an issue has been before a Hearing Officer. Generally, teachers at a unilateral placement need not be State-certified[12], there must however be objective evidence of special education instruction or supports that are specially designed by the student's providers at the private school who have reasonable qualifications that are specifically related to the student's deficits[13].
The only evidence proffered on behalf of the Parent was the testimony of the Parent’s Witness to the effect that the SETSS Provider sees/treats a lot of older children (in cross-examination). I am therefore unable to find based on the record that the Student was provided with special education instruction or supports that were specially designed by the student's provider who had reasonable qualifications that were specifically related to the student's deficits.
It has been held that in approaching the dispute as to the recoverability of an enhanced rate, such disputes should as a practical matter be “effectively examined using a Burlington/Carter unilateral placement framework” and that “attempts that … do not use a Burlington/Carter analysis have tended to lead to chaos”[14].
Further that "parents who are dissatisfied with their child's education can 'unilaterally change their child's placement during the pendency of review proceedings' and can, for example, 'pay for private services, including private schooling.' They 'do so,' however, 'at their own financial risk.' They can obtain retroactive reimbursement from the school district after the IEP dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test. A parent can obtain such reimbursement if: '(1) the school district's proposed placement violated the IDEA' by, for example, denying a FAPE to the student because the IEP was inadequate; (2) 'the parents' alternative private placement was appropriate'; and (3) 'equitable considerations favor reimbursement.'"[15].
The Parent submitted into evidence (Exhibit P-D), what appears to be a call log of attempts made to locate a district teacher for SETSS. No evidence was led regarding this document, which is also not attested to.
It has been found that the District's system for providing SETSS services that requires the parent to seek out and arrange for a student's instruction by a special education teacher based on information the Parent acquired online is a violation of State law[16].
Further it has been held that "a board of education lacks authority to provide instructional services through an independent contractor"[17] and that the application of State law requiring that core instruction provided by a school district must be performed either by teachers who are employees of the district or pursuant to a contract for special education services that a district is specifically authorized by law to enter into[18]. A district is required by State law to locate and assign the student's publicly provided teachers for a dually enrolled student[19].
It has also been held that “any notion of a public rate for independent SETSS instruction for this student that may be sanctioned in a policy of the district is flawed and cannot be reasonably relied upon by either party, because the district was not authorized to contract for the provision of an independent special education teacher” and that while “districts cannot deliver special education services called for by their educational programming in an unauthorized manner, due at least in part to the requirements that school officials and employees remain accountable under the statutory and regulatory mechanisms put in place by state and federal authorities, they can be made to pay for a privately obtained parental placement, a process that is essentially the same as the federal process under IDEA"[20].
The Parent in this case failed to present any evidence of an obligation to pay for the SETSS provided to the Student. Parent Witness testified (by way of affidavit) that the cost of services provided by the Agency to the Student during the 2019-2020 school year amounted to $10,200.00 and that the Agency had received $0 for such services (Exhibit P-E-2, paragraphs 8 and 9). No further documentary or oral evidence by any witness confirms an obligation on the Parent to pay for the SETSS provided to the Student.
Since the Parent has not actually paid any money for which she must be reimbursed, this matter is “in a subset of more complicated cases in which the financial injury to the Parent and the appropriate remedy are less clear”. “The Second Circuit Court of Appeals has held that a direct payment remedy is an appropriate form of relief in some circumstances, and that "[i]ndeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework"[21].
In this case, unlike the E.M. case, there is no proof of any agreement, either written or oral, between the Parent and the Agency that delivered SETSS providing that the Parent was responsible for the cost of the SETSS for the 2019-2020 school year. Under the circumstances, the Parent's request for a determination that the services should be funded at the enhanced rate of $150.00 must be denied.
As the District was nevertheless obligated to pay for SETSS for the 2019-2020 school year, I find that the Parent is entitled to an Order for payment for SETSS provided during the said school year at the District’s usual or standard rate for the hours it was obligated to provide, namely 108 hours, even though only 68 hours were provided. To hold otherwise, would be to countenance the District’s actions in denying the Student a FAPE and permit the District to benefit financially from its conduct in failing to provide a SETSS provider that could provide the full 108 hours to the Student.
Had an obligation to pay been established on the record, I would have found, given the qualifications of the SETSS Provider established (and the lack of evidence that the Student was provided with special education instruction or supports that were specially designed by the student's provider who had reasonable qualifications that were specifically related to the student's deficits) and the make-up of the Agency’s standard rate (which includes expenditure of a capital nature that would apply over a number of years and be depreciated accordingly), that an equitable rate in the circumstances of this case would have been $100.00 per hour.
ORDER
IT IS THEREFORE ORDERED:
- • THAT, the DOE is directed to fund the Student’s SETSS for the 2019-2020 school year (09/01/2019 through to 06/30/2020) up to 108 hours at the District’s usual or standard rate.
- • THAT, the DOE shall issue payment for the full sum referred to in #1 above (i.e. 108 hours multiplied by the District’s usual or standard rate) directly to the Agency, upon the submission of invoices for 68 (sixty eight) hours of SETSS rendered to the Student during the 2019-20 school year.
SO ORDERED.
DATED: December 17th, 2020
____HAC____(Signed Electronically)___
Impartial Hearing Officer
Harry Aristargos Christodoulou
Hearing Officer’s Fact of Finding and Decision
_______________________________________________________________________
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.
APPENDIX A – PERSONALLY IDENTIFIABLE INFORMATION
STUDENT v. SCHOOL DISTRICT
REDACTED
APPENDIX B – ADMITTED EXHIBITS
STUDENT v. SCHOOL DISTRICT
EXHIBIT NUMBER
DATE
DESCRIPTION
NO. OF PAGES
Parent’s
Exhibits:
P-A
05/28/20
A Request for Due Process Proceeding and Notice of Appearance
4
P-B
06/18/20
Due Process Response
3
P-C
09/01/19
Authorization for Independent SETSS
1
P-D
09/01/19
Parent’s Call List
1
P-E
11/26/20
Affirmation of REDACTED
2
P-F
10/12/20
Certificate Information for REDACTED (SETSS Provider)
2
District’s
Exhibits:
None
-
-
-
IHO Exhibits:
None
-
-
-
Footnotes
[1] U.S.C. § 1400 [d][1][A].
[2] C.F.R. § 300.13.
[3] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[4] Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017).
[5] U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[6] U.S.C. § 1415[f][3][E][i].
[7] Rowley, 458 U.S. at 203.
[8] Asserted to be have been created on or about REDACTED.
[9] Provisions of section 3602-c; See also 34 CFR 300.130 and 300.145-147.
[10] 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, September 2007.
[11] NYS Educ. Law § 4404(1)(c).
[12] See Carter, 510 U.S. 7, 14, noting that unilateral placements need not meet state standards such as state certification for teachers. See also Application of a Student with a Disability, Appeal No. 12-125.
[13] Application of a Student with a Disability, Appeal No. 20-140.
[14] Application of a Student with a Disability, Appeal No. 20-140.
[15] Ventura de Paulino v New York City Dept. of Educ., 959 F3d 519, 526-27 [2d Cir 2020] [citations omitted].
[16] See Application of a Student with a Disability, Appeal No. 20-115; Application of a Student with a Disability, Appeal No. 20-087; Application of a Student with a Disability, Appeal No. 20-140.
[17] Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeal of Woodarek, 46 Ed Dept Rep 1, Decision No. 15,422).
[18] See Bd. of Co-op. Educ. Servs. for Second Supervisory Dist. of Erie, Chautauqua & Cattaraugus Ctys. v. Univ. of State Educ. Dep't, 40 A.D.3d 1349, 1350 [3d Dep't 2007].
[19] Educ Law § 3602-c[2][a].
[20] Application of a Student with a Disability, Appeal No. 20-140.
[21] See Application of a Student with a Disability, Appeal No. 20-140 citing E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 [2d Cir. 2014]; also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 430 [S.D.N.Y. 2011] this latter case finding it appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, had not done so due to a lack of financial resources. See also Application of a Student with a Disability, Appeal No. 20-087.