New York City Department of Education, Impartial Hearing Decision

FINDING OF FACT AND DECISION

IHO M WEINER

DATE: 05.08.2022

STUDENT:

CASE NUMBER: 201589

CASE NUMBER: 545003 - NYC: 201589

FINDING OF FACT AND DECISION

An impartial hearing was held on October 7, November 1, and December 2 of 2021 and January 13, February 17, March 29 and May 5 of 2022 for a student who has been classified as having a disability pursuant to the Individuals Disability Education Act (IDEA) 20 U.S.C. 1415 (f) (1). This Impartial Hearing Officer was appointed to hear the case on September 27, 2021. The Impartial Hearing Office assigned this case, case number 201589. The parent and district requested extension of the compliance date and those extensions were granted.

The closing date was May 5, 2022 The parent’s advocate was Ms. (REDACTION). A district representative did not appear and thus there were no witnesses nor documents presented for the district. The parents were seeking payment for SETSS only for the 2021/2022 school year and an oral transliterator for the 2020/2021 and the 2021/2022 school years.

Ms. (REDACTION) submitted an IESP dated January 17, 2019. The services recommended in that document lists 5 periods of SETSS; speech, 3 X 30 X 1; Hearing Education Services, 2 X 60 X 1; and Oral transliterator fill time as well as an FM unit.

Ms. (REDACTION) stated prior to any witness testimony that although the hearing request did not list make-up hours for SETSS for the 2020/2021 school year, she requested this IHO to consider providing the student with a bank of hours for that year.

The first witness was the parent/mother. The parent stated for the 2020/2021 school year her son had received the services of an oral transliterator. The student is hearing impaired and has an implant. The services of the oral transliterator in the 2020/2021 school year was beneficial to her son. The parent testified that she did not know how that person helped her son. In the present school year of 2021/2022 he again received the services of such a person and he helped her son.

The student in this school year of 2021/2022 receives the services of a SETSS provider.

The student attends and attended for the prior school year the United Talmudical Academy. The parent did not know if the school provides progress reports and did not know whether her son receives a report card.

At that point in the hearing, it appeared that the parent may require an interpreter when asked a question stated she did not know how to express herself.

The case was continued to March 29, 2022.

On March 29, 2022 the first witness was the parent/father. The witness stated that from his conversations with the oral transliterator, “He making basic - - he’s making sure that all information what - - what the school gives out for the students, this is a teacher or the principal or - - or friends, he (indiscernible) in properly cand clear.” (Tr. 94) The student is hard of hearing and wears hearing aids. The student is REDACTED years old. The witness was not certain but believed his son had an oral transliterator for three years.

Since he has had the services of an oral transliterator “it’s clear in everything- - where he – where he has to be clear…To the teacher, with friends, with me. Everything in his world around is clear.” (Tr. 96) The witness testified that he has visited the classroom this year three times and he receives SETSS. The parent believed it was SEIT and did not know what SETSS stood for as to its initials.

The father/witness testified that the oral transliterator is (REDACTION), the witness’ brother and the student’s uncle. The witness believed the SETSS person was a (REDACTION).

The next witness was Mr. (REDACTION), the owner and director of REDACATED Services. He testified that his agency provides oral transliterators for hearing impaired children.

The witness testified that when he provides such services he is paid by the NYC Department of Education. He charges $80 an hour. The rate is based upon---“Taking in account whatever it costs the provider, the taxes. Whatever it cost to run the office, supervision, training and taking into account we need to borrow money in order to pay for the payroll for the providers. And money costs money. It goes up to 34%. That’s how we came up with that number.” (Tr. 110)

The witness provided an oral transliterator, a Mr. (REDACTION) for the 2020/2021 school year. This person has a high school degree. The 2020/2021 school year was that oral transliterator’s second year in providing such services. This person also provided the same service, oral transliterator for the 2021/2022 school year.

The witness stated that there was supervision for the 2021 school year by a speech therapist. What was the supervision, “So she went down to the school and she saw how he worked with the child. And were in constant touch with the specific case. She’s talking to Mr. (REDACTION). Seeing how he’s doing. If he has any questions that come up…Questions what do I do here, what do I do there. And I’m in touch, me, personally, with the teacher. With the parents. And with the supervisor and the provider.” (Tr. 113)

The witness was asked whether or not the oral transliterator repeats everything the teacher says to the class and the witness stated, “I don’t know if he repeats everything, because the kid obviously hears sometimes. He makes sure that the kid heard. And whatever he did not, he repeats it, correct. So, he repeats, but I don’t know if everything.” (Tr. 115) There was supervision once every two weeks for the 2020/2021 school year and 2021/2022.

The school is a Yeshiva.

The student is receiving through the same agency SETSS, through a (REDACTION). The witness bills the DOE for Mr. (REDACTION) services at $125 an hour. The witness pays the SETSS provider, $80 an hour. The SETSS person here, has a master’s in special education.

The ‘gap’ as referred by the witness is because of taxes he pays and supervision and the money it costs to borrow to pay the provider. The witness admitted he was referring to the money he borrows at a 34% interest rate. The SETSS provider has worked in a school for five years prior to working for the witness. This SETSS provider has worked for the agency for the last three years. The SETSS provider works with the student five hours a week in the evening.

The witness never observed the SETSS provider working with the student. The witness admitted that the class the student is taking listed as REDACTED.

The witness, although testified earlier as listed in the transcript that he observed the oral transliterator working with the student when asked how many students were in the class testified “I have no clue.” (Tr. 121)

DECISION:

The purpose behind the Individuals with Disabilities Education Act (IDEA) 20 U.S.C. sections 1400-1487 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE). A FAPE consists of special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive IEP (20 U.S.C. 1401 [8][D]; 34 C.F.R. 300.13. A board of education may be required to pay for education services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate and equitable considerations support the parent’s claim (Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 [1985]). The parents’ failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206, 207 [1982]).

While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist. 346 F.3d 377, 381 [2nd Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at 10 [S.D.N.Y. Feb 9, 2007]). Under the IDEA, 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 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 (20 U.S.C. section 1415 [f][3][E] [ii]; 34 CFR 300.513 [a][2]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007].

The IDEA directs that an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. section 1415 [f][3]{E] [i]). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of education benefits that must be provided through an IEP” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2nd Cir. 1998]; The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walzak at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2nd Cir 1989]. Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley at 189, 199; Grim at 379). Nonetheless, a school district must provide “an IEP that is likely to produce progress, not regression and…affords the student with an opportunity greater than mere trivial advancement” (Walczak at 130; Perricelli at 15) The IEP must be “reasonably calculated to provide some ‘meaningful benefit” (Mrs. B. v. Milford Bd. Of Educ., 103 F.3d 1114, 1120 [2nd Cir. 1997]).

The agency owner in affidavits wrote that he was hired by the parent to provide oral transliterator services for this student. The hearing request reads that the DOE is to continue to pay for SETSS at a rate of $125 an hour. It does not list the number of hours. It was not until the day prior to the last day of hearing, after testimony was received by the owner of the agency, that the advocate submitted an affidavit for SETSS services, with the document having a date of May 4, 2022. This IHO has informed the advocate on numerous occasions he does not accept affidavits unless the person who signed the affidavit testified. This IHO did not accept the document listed as P, in that the document was presented after the owner and parent testified, and the advocate did not present any SETSS provider. This IHO does not accept affidavits unless the person is present to testify and cross-examined, This IHO had informed the advocate on numerous occasions of such policy, thus the owner of the agency was presented for testimony. There was no document listing a contract between the parents and the agency for SETSS services.

I deny any claim for SETSS provider for any agency. No evidence of SETSS was provided.

I find that there was no actual contract between the parent and the agency. Neither the parent’s testimony, nor the testimony of the owner of the agency include testimony that either parent signed a contract with the agency and thus there was no financial obligation between the parent and the agency to pay for the services claimed were provided. None of the various documents submitted by the advocate, included an actual written contract. The affidavit of Mr. (REDACTION) reads that he was hired by the parent, yet there was no actual contract. I find the claimed oral hiring by the parent, if credible, is not a written contract that obligates the parent to pay the agency. In fact there was not a single dollar paid by the parent to the agency for any services during the two years claimed the agency paid the oral transliterator. Who was this oral transliterator? He was the student’s uncle, the brother of the parent who testified. Clearly there was no contract to pay the student’s uncle for him to sit next to his nephew during the school day.

In reviewing the student’s schedules for the two years in question, the schedules are in fact the exact same schedule, out of five and a half school days there is only ten hours of secular classes.

In document I, a person on a plain white piece of paper typed that this student did not miss one day of school for the 20-21 and 21-22 school year. The person who signed the paper did not list their position relative to the student’s Yeshiva. The document was not on any letterhead of the Yeshiva the student attended. There was no witness testimony to authenticate the document or state who signed the document, a signature I find not legible. I do not find this document credible.

In Parent’s D, the owner of the agency wrote that they provided 41 hours a week of oral transliterator services from September 2, 2020 through June 30, 2021 for a total of ABOUT (IHO’s emphasis) 38 weeks. He did list that they have received $0.00 payment from the parent. In document N, he wrote that they provided 43 hours of services from September 3, 2021 to June 30, 2022 for a total of APPROXIMATELY (IHO emphasis) of 39 weeks. As noted above, the schedules are the same for the two years but in the two affidavits this owner writes for one year it is 41 hours a week and for the other year 43 hours a week for the exact same schedule. In the affidavits the owner writes ‘About’ 38 weeks in one affidavit and then in the other ‘Approximately’ 39 weeks. Yet as to the fee he is seeking from the DOE he is exact, D1 reads, $101,710 and in N1, it reads $103,000. In J1, for the entire month of October there were no services presented and from March 27, 2021 through April 4, 2021 there were no services presented. In reviewing document M, the document reveals no services presented in various days in September. I deduce that the days were for Jewish holidays. Again in document M the list for the days allegedly provided ends on December 26, 2021, because it was notarized on January 6, 2022.

I find based on the review of the documents and the testimony of the agency owner as to expenses (Not one piece of paper for expenses), I find the witness is not credible and that he just makes facts up.

I further note that the person who signed Parent’s M and Parent’s J is an illegible signature and does not be a signature with the last name ‘Pollak.” This IHO cannot be certain in that the signature is as stated illegible. Is it not customary and logical that if requested to sign a document and your signature is not legible, a printed name is listed under the signature? To consider a document credible, a signature should be legible, and a printed name underneath for verification as to who signed the document.

The owner of the agency stated that he goes straight to the DOE for his fees. Why? Because he has not received one dollar from the parent over this two year period and knows he is only going to be paid by the DOE and the parent has no obligation to pay. There was no claim that he even requested any payment from the parent. There is no written agreement that the parent would pay any money if the agency did not receive payment from the DOE, thus no financial obligation. The hearing is not (REDACTION) vs. DOE, it is the Parent’s of (REDACTION) vs. DOE. See SRO decisions 21-096 & 20-099, holding that for any reimbursement under Burlington/Carter the parent has to demonstrate legal obligation and the SRO wrote in that appeal “the parent has not demonstrated a legal obligation to pay the costs and an inability to do so.” (Appeal no. 21-096)

Mr. (REDACTION) in justifying $80 an hour when he pays the oral transliterator (here the brother of the parent) far below the $80 an hour. The difference is supervision, 34% interest on his loans, training. The DOE is not obligated to pay for interest on the witness’ loans. There was not one piece of paper which was a bill either for training, supervision, or even rent and a lighting bill. There was no evidence that a separate office existed from the witness’ home.

I do not find the testimony of Mr. (REDACTION) credible as to his expenses, the number of weeks services were provided and the number of hours of services provided. I do not find the document claiming this student did not miss one day of school for two years credible. I do not find the affidavit of services from the provider credible, whose signature is not legible and who did not testify.

I deny any payment to the agency in that the documents and testimony failed to establish the parent having a financial obligation to pay for the services which were not contracted for the two years in this claim. I further deny payment in finding the testimony of the agency not credible and failing to provide credible evidence of services provided for the period and hours requested.

If the SRO finds that payment should be made to this agency, I find that it should not exceed ten hours a week (only for the hours of secular class) of payment for services at a rate not to exceed $40 an hour. I find that there was no accurate evidence as to the number of weeks presented and with the Jewish holidays listed for the two years, I find a more accurate reading of the number of weeks is 36 weeks. Thus, if any payment should be made---this IHO does not find any payment should be made for the reasons listed---it should not exceed 40 ($ per hour) X 10 ( secular hours in the week) X 36 (number of weeks) = $14,400.

Notice of Right to Appeal:

Within 40 days of the date of this decision, the parent and/or school district has a right to appeal the decision to a State Review Officer of the NYS Education Department under section 4404 of the Education Law and the Individuals 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 and proof of service with the Office of State Review or the SED within two days after service of the request for review is complete. The rules of procedure for proceedings 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

Dated: M. Weiner

IHO

PARTIES ATTENDING HEARING:

Parent

Parent advocate

Owner of agency

PARENTS’ DOCUMENTS:

A.9.21.20 Hearing Request 4pp.

B.1.17.19 IESP 11pp.

C.Not accepted

D.11.04.2021 Affidavit of services 1pg.

E& F & G: Not accepted.

H.20/21 Class schedule 1pg.

I.20/21 & 21/22 Attendance record 1pg.

J.20/21 Provider’s attendance 4pp.

K.Not accepted

L.21/22 Class schedule 1pg.

M.21/22 Provider’s attendance 4pp.

N.12.29.21 affidavit of services 1pg.

0.11.29.21 Hearing request 7pp.

P.Not accepted

Q.Not accepted