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CASE NUMBER: 539548 - NYC: 196269
FINDINGS OF FACT AND DECISION
Case Number: 196269
Student’s Name: REDACTED
Date of Birth: REDACTED
District: REDACTED
Hearing Requested By: Parent
Dates of Hearing: April 19, 2021
September 10, 2021
October 18, 2021
October 21, 2021
December 2, 2021
Actual Record Closed Date: December 18, 2021
Hearing Officer: Judith Schneider, Esq.
On April 19, 2021, September 10, 2021, October 18, 2021, October 21, 2021,and December 2, 2021, I conducted an Impartial Hearing (via telephone) for the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of REDACTED (“the student”).
Procedural History
The proceeding was initiated at the request of the parent by correspondence dated July 8, 2020, which concerns the 2019-2020 school year (“SY”) (Case no. 196269) (Ex. A) By correspondence dated September 3, 2020, the parent requested an impartial hearing concerning the 2020-2021 SY (Case No. 197991). (Ex. B1) I was appointed Impartial Hearing Officer or both cases on January 4, 2021. A prehearing conference was conducted on January 11, 2021. The two cases were consolidated by order dated January 11, 2021.
By Interim Order on Pendency dated June 18, 2021 the following was ordered from September 3, 2020 during the pendency of this matter: SETSS: 5 periods per week (Group Service) (REDACTED); Speech Language Therapy: 2x30 (1`:1) (REDACTED):
Hearings scheduled for September 8, 2021 and September 28, 2021 were adjourned.
The parties moved to extend the compliance date on various occasions for settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence and receipt of the transcript and issuance of the decision. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted.
The current compliance date is January 12, 2022. The record closed on December 18, 2021.
Positions of the Parties
All issues concerning the 2020-2021 SY have been resolved and the parent is making no claims and seeking no determination with regard to that period. (T73, 105) The sole remaining claims concern the 2019-2020 SY. The parties agree the student was entitled to SETSS services (5 periods per week, Group REDACTED. However, the parent asserts that group services were not available. (T112) The parent seeks an enhanced rate of $175 per hour for SETSS provided and seeks reimbursement for 127 sessions to be directly paid to REDACTED(“the agency”). The district did not dispute that it did not identify a provider for the required SETSS but objected to the $175 rate. [1] (T78, 89,110, 112, Ex. C2) [2]
Cases Presented The district presented neither documentary or testimonial evidence. Parent submitted documents were admitted into the record (list attached) and presented the testimony of: the Educational Director of the agency which provided the services (“the director”); the parent.
Findings of Fact and Conclusions of Law The parent unilaterally provided services as a consequence of the district’s failure to provide a FAPE and seeks DOE funding through direct payment. (T179-183). A direct payment remedy, when the equities call for it, falls within the Burlington-Carter framework. Appeal No. 21-068. [3] In this matter the district concedes that it failed to provide a FAPE and that the services provided were appropriate. However even in the event of substantial district failure the rate for a parentally selected service or placement must be reasonable. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).
The director testified that this provider is paid $90 per hour and that the range in the agency is $75-100. T123,139) Accordingly the agency’s fee with regard to this student is almost 100% more than what is paid to the provider. The parent asserts that the rate is reasonable in view of appropriate agency expenses which include appropriate provider supervision (at least once every 2 weeks), necessary purchased materials and resources for student and provider use and monthly professional training as well as administrative and overhead expenses. (T124, 139-140, 148-149, 152-153, 156)
No documentary evidence supporting agency expenses has been provided. The evidence shows that the agency services some 500 students, apparently with varying weekly service requirements, receiving services from some 150 providers. (T159) Agency costs for materials vary, materials are shared/utilized for several students when possible although individual workbooks were secured for this student. (T139-142) Although specific information concerning materials expenses was not provided, the range for individual workbooks was reported to be $100-400. (T139-142) The costs for providing the professional development was discussed generally. The information provided did not support a conclusion that it was substantial in view of the number of students served and the service hours likely provided. (T156-157)
The district did not provide evidence of the rates paid generally for the service provided and did not assert what rate it believed was reasonable in the circumstances here. However, the sole support for the claim that the rate is market rate, and therefore on that basis should be considered reasonable, was information obtained from 5 schools providing services to similar schools. (T120-122)
I conclude the evidence does not support a conclusion that the rate requested is reasonable as required by Carter. However, the inadequacy of the district’s authorized rate resulting in the provision of “enhanced” rates has not been disputed and I note that the district has not asserted the appropriateness of its “authorized” rate in this matter. I conclude in the circumstances here that a rate of $130 per hour for services provided in the 2019-2020 SY. I note that the evidence shows that the student is well behaved and cooperative and that the parent did not dispute that provision of services in a group would have been appropriate if available.
In view of the foregoing, I do not address the issue of parental legal obligation and/or financial inability to pay. Appeal No. 21-068. Further I note with regard to my determination in this matter that under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006); Appeal No. 08-052.
ORDER
The district shall directly pay the agency $130 per hour for SETSS provided in the 2019-2020 SY (to a limit of 127 hours) upon provision of by the parent of satisfactory evidence that the services were provided.
Dated: January 1, 2022
_______/s/________________
JUDITH SCHNEIDER, 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.
EXHIBITS
District
NONE
Parent
A Request for Impartial Hearing, 7/8/20, 5 pgs.
B1 Request for Impartial Hearing, 9/3/20, 5 pgs.
B2 IESP, 1/27/20 12 pgs.
C1 IESP, 2/6/18, 12 pgs.
C2 Affidavit Regarding Rate for Services Provided, 7/20/21, 1 pg.
D Teaching Certificate of student’s teacher, Undated, 1 pg.
E Progress Report, 2/17/20, 5 pgs.
F WITHDRAWN
Impartial Hearing Officer
I OMITTED
II Order of Consolidation (#197991), 1/11/21
III Order re Pendency. 6/18/21
Footnotes
[1] District assertions that the school year consisted of 36 weeks and not 40 as specified by the parent are not addressed since the number of sessions requested is less than 5 sessions a week for 36 weeks which the district concedes the student was entitled to.
[2] All initially requested 2019-2020 Speech Language Therapy services have been provided and relief with regard to that is not sought. (Ex. A, T101))
[3] It is well established that reimbursement will be provided when (1) the services offered by the district are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2); and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at 806, n.7 (N.D. N.Y. 1998)