NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBER: 564937 - NYC: 220420
FINDINGS OF FACT AND DECISION
Case Number: 220420
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed., District # REDACTED Impartial Hearing Officer: Harry A. Christodoulou
Date of Filing: 10/27/2021
Hearing Requested by: REDACTED (“Parent”)
Date of Hearing: 08/11/2022; and 09/01/2022
Record Close Date: 09/09/2022
Date of Decision: 09/21/2022
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 11, 2022:
For the Student:
REDACTED (hereinafter referred to as “Parent’s representative”)
Parent
For the Department of Education (“DOE”):
REDACTED (hereinafter referred to as “District’s representative”)
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 1, 2022:
For the Student:
Parent’s representative
REDACTED (hereinafter referred to as “Parent’s Witness”)
For the DOE:
District’s representative
REDACTED (hereinafter referred to as “District’s Witness”)
BACKGROUND AND PROCEDURAL HISTORY
Student is a REDACTED-year-old child classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). Whereas Student’s eligibility for special education supports and services is not in dispute, District’s obligation to provide such supports and services to Student is.
On October 27, 2021[1], the Parent, through the Parent’s representative firm, filed a due process complaint (“DPC”) against the DOE pursuant to the IDEA. I was appointed on October 28, 2021, to preside over the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC, concerning the special education program of the student.
The claims in the DPC relate to Student’s special education program and the provision of related services for the 2021-2022 school year (“SY”), asserting inter alia that: the DOE failed to provide a free and appropriate public education (“FAPE”) for Student by failing to develop a timely education program and supply a Special Education Teacher Support Services (“SETSS”) provider for Student (Exhibit P-A-2). Parent sought an order, inter alia, for Student to be awarded ten hours of SETSS per week at an enhanced rate for the 2021-2022 SY, and the allowance of funding for payment to Student’s SETSS provider/agency for ten hours of SETSS per week at an enhanced rate for the 2021-2022 SY (Exhibit P-A-2).
District’s Witness, who was the representative for the District attending a status conference (“SC”) on May 3, 2022, noted on the record that the DOE was trying to reach Parent to schedule a mandated three-year evaluation and became aware, when the Committee of Special Education (“CSE”) spoke with the Attending School (defined on page 22), that the family had moved out of New York City (“NYC”). District’s Witness indicated that the DOE did not wish to “go any further” until it had confirmation of the date that Parent (and Student) moved out of NYC (T. P21, L18-25).
At the next SC held on May 9, 2022, the District representative present indicated that the DOE was looking for the attendance record of Student in NYC and specifically for a letter from the Attending School with the days that Student was present, as well as when Student was discharged. Parent’s representative in attendance at that SC noted that they would get the letter to the DOE (T. P28, L230-25; P29, L1-7).
I was informed by the representative for the Parent at the next SC held on June 1, 2022 that the letter that the DOE had requested had been obtained and provided to the DOE approximately two week prior the SC (T. P37. L12-18). There was no appearance for the District at that SC.
I was however informed at the following SC held on July 6, 2022 that the letter that the DOE had requested had not been forthcoming (T. P44. L13-16). At this SC, District’s Witness, who was representing the District at this SC, noted on the record that: the DOE had been asking for two months for verification from Parent, not from the agency who had been providing the services to a student who, according to DOE’s records, was no longer living in NYC; the DOE needed to know when Student moved; and that there has been pendency in place since the filing of the DPC in October for a student who was possibly receiving services from the DOE whilst not living in NYC (T. P45, L20-25; P46, L1-4). In response, the representative for the Parent at the SC held on July 6, 2022 stated that the information sought by the District and an official letter would be obtained for District’s Witness and that from Parent’s representative’s understanding, the Student had moved out of NYC in November and that was when the services stopped being provided (T. P46, L8-11).
At the next SC held on July 12, 2022, District’s representative made a motion to dismiss Parent’s DPC. After hearing from the parties, I ruled against the District on the basis that, inter alia, the District’s motion was premature, and expressly preserved the option for the District to re-raise the relief sought once the parties had an opportunity to present their cases (T. P52, L24-25; P53-62; P63, L1-11). I also scheduled the IH.
Prior to the scheduled start of the IH on August 11, 2022, District’s representative emailed a formal written motion to dismiss for the DOE (Exhibit IHO-I), in which the DOE sought to have Parent’s request denied in its entirety. After learning that Parent was prepared to proceed with the hearing and that District’s representative would have an opportunity to cross-examine Parent, District’s representative indicated that the DOE was prepared to proceed with the hearing and would hold over the District’s motion to dismiss (T. P71; P72, L1-3). The IH commenced on August 11, 2022 and concluded on September 1, 2022.
JURISDICTION
A decision in this matter is being rendered, pursuant to the IDEA[2], and its implementing regulations[3], and the New York State Education Law[4], and its implementing regulations[5].
PARTIES’ POSITIONS AND CASES PRESENTED
DOE:
Prior to resting its case, District’s representative made an opening statement asserting, inter alia, that (T. P75, L24-25; P76, L1-20):
The DOE was not presenting any witness to defend a prong one case in this matter and with the admission of the submitted evidence (Exhibit DOE-2), rested as to prong one; as to prong two, the DOE reserved the right to question Parent and Parent’s Witness in regard to them obtaining SETSS and related service(s) and the appropriateness of those services; and Student had moved out of the NYC jurisdiction and was not entitled to the reimbursement of any expenses thereafter.
The District contacted Parent numerous times to obtain the exact date when Student moved out of the jurisdiction; Parent had failed to provide the exact date; there may be equitable concerns that arose, either through evidentiary material being admitted or that arises during testimony from the Parent's witnesses that favor the DOE. The District requested an opportunity to cross-examine the witnesses that were going to be presented in this case to explore the aspect of any equities.
Once Parent’s case had concluded or rested its case, District called a rebuttal witness[6], namely District’s Witness, who testified as to (T. P111-125):
District’s Witness’s employment and familiarity with this case; District’s attempts to obtain confirmation from Parent as to when Student moved out of NYC; why the information was important, namely because Student had pendency from October and continued to have pendency; Parent not providing the information sought; Student being discharged sometime in February pursuant to the Committee’s numerous attempts to reach Parent.
District’s Witness confirmed in cross-examination that her involvement with the case was only from April 2022, that is after the period pertaining to when SETSS were provided to Student by the Agency (defined on page 22), according to Parent’s Witness, and that District’s Witness was not aware, or had no knowledge as to, whether the DOE made any payments on pendency after November 2021.
In a closing statement District’s representative asserted (T. P126-127) that: the District did not defend a prong 1 argument; Parent did not establish that the unilaterally obtained SETSS at an enhanced rate was appropriate and that Parent had not met her prong 2 burden; Parent had gone beyond the four corners of the DPC, which requested an enhanced rate of $150.00, by now seeking $180.00 per hour; and raised factors that speak to the equities or prong 3 (Parent never responded to many enquiries from the DOE, and did not cooperate with the DOE; Parent called some not all of the providers on the DOE’s list; Parent had taken advantage of the system through pendency). District’s representative referenced the District’s motion to dismiss (Exhibit IHO-I) and requested the matter be dismissed.
Parent:
Parent, through Parent’s representative, submitted seven documents in support of Parent’s case. The proposed exhibits (save for proposed Exhibits P-C and P-F) were admitted to the record and are listed below, after confirming with District’s representative that there were no objections from the DOE to those documents being admitted into evidence. Exhibits P-C and P-F were admitted after addressing the objection to Exhibit P-F, and after the deponent to the affidavit (Exhibits P-C), who was required for cross-examination purposes and/or clarifying questions, joined the hearing to testify (T. P78, L12-25; P79-80; P81, L1-24; P98, L15-25; P99, L1-12).
Parent’s representative made an opening statement asserting, inter alia, that (T. P77, L15-25, P78, L1-11):
Student was denied a FAPE by the DOE for the 2021-2022 SY; entering into the 2021-2022 SY, the last program created for Student was an Independent Education Services Program (“IESP”) created on June 14, 2017; Student was entitled to receive ten hours of SETSS per week during the 2021-2022 SY pursuant to that IESP, however, the DOE failed to actually make a SETSS provider available to Student and conceded that they had failed to provide a FAPE for the Student.
Although it's not the Parent's responsibility or obligation, she attempted to find an independent provider for Student on her own, but was unsuccessful in doing so until she retained the services of the Agency, which charged her a rate of $180.00 per hour for those services; Parent is seeking an award of ten hours of SETSS for the Student per week for September through November of the 2021-2022 SY at an enhanced rate of $180.00 per hour for those SETSS services; and Parent had left the state in mid-to-end of November, and is not seeking any funding for the time after she had left the state.
Parent’s representative called two witnesses to testify at the IH, namely Parent and Parent’s Witness. Parent testified (T. P83-90) as to: the DOE’s failure to provide a SETSS provider for the 2021-2022 SY; Parent’s efforts to find a SETSS provider; the agency Parent found to provide SETSS for the Student; the person who worked with the Student; and the progress the Student made.
Parent’s Witness provided testimony:
Via affidavit (Exhibit P-C) as to: her position at the Agency; the services the Agency agreed to provide to the Student for the 2021-2022 SY (ten hours of SETSS per week) and the rate ($180.00 per hour); the Agency’s rate of $180.00 per hour being commensurate with other SETSS agencies in NYC[7]; factors that made up the fee charged; the provider that provided Student with the SETSS (hereinafter referred to as the “Provider”, and defined on page 22) and provider’s certification; the number of hours of total SETSS provided to Student for the 2021-2022 SY as at August 5, 2022 (forty three and a half hours); the amount due to the Agency for those services ($7,830.00); the amount received by the Agency for those services as at August 5, 2022 ($0).
‘Live’ or verbally at the IH (T. P90-105) as to: the date the Agency first commenced providing services to Student for the 2021-2022 SY (September 13, 2021); the last date those services were provided to Student in the jurisdiction of NYC (November 14, 2021); that the Agency had a contract with Parent stipulating the rate ($180.00 per hour) and services the Agency would be providing.
In a closing statement Parent’s representative asserted (T. P127-P131) that:
The burden of proof in this matter rests solely on the DOE in all respects; Student was denied a FAPE by the DOE for the 2021-2022 SY; an IESP was not created for Student within a year prior to the start of the SY; there is no disagreement that Student was entitled to receive ten hours of SETSS per week from the DOE during the SY at issue; the DOE failed to make a provider available to Student; it is the DOE’s responsibility to implement the IESP and not a parents; Parent nevertheless went above and beyond her responsibility by attempting, albeit unsuccessfully, to find an independent provider of her own but was only able to find a provider for Student by retaining the Agency, which charged her a rate of $180.00 per hour for those services.
The DOE argues that Parent did not respond to or cooperate with the DOE, District’s Witness however was not involved in the creation of the IESP or for ensuring that a FAPE was provided to Student, but only reached out to Parent after Student had already left the state, and after the DOE had already failed to provide a FAPE for Student, and failed to complete its responsibility towards Student; being unable to reach Parent after the case was filed, after Student already left the state, is irrelevant to show that the DOE provided a FAPE for Student.
The DOE raised misleading assertions regarding pendency, but as stated by District’s Witness, did not have a basis for her claim; the DOE challenged the rate charged by the Agency for SETSS as being excessive, however the burden of proof rests with the DOE and there is no evidence submitted that Parent could have reasonably obtained the services at a lower rate; the analysis should be limited to whether the rate being sought by Parent is reasonable, and there is no evidence or testimony to show that the rate being sought by Parent is unreasonable. Parent is seeking an award of ten hours of SETSS for Student for September to November for the 2021-2021 SY at an enhanced rate of $180.00 per hour for forty three and a half hours of SETSS for a total of $7,833.00.
PREVAILING PARTY
Parent is the prevailing party, and Parent’s request for SETSS funding at an enhanced rate for the 2021-2022 SY is being granted.
LEGAL FRAMEWORK
A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the Individualized Education Program (“IEP”) developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits[8].
If a procedural violation is alleged, an impartial hearing 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[9].
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[10], and default judgments are disfavored by the federal courts[11]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”[12]. School districts are not required to “maximize” the potential of students with disabilities[13], but must provide “an IEP that is ‘likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement’”[14]. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit”[15].
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, which exception does not apply in this case[16].
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents’ claim[17].
This case involves a parentally placed student with an 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[18].
The IDEA does not confer entitlement to students enrolled in nonpublic schools to all the special education programs or related services such students would receive if they attended public schools.[19] Instead, the IDEA requires school districts to participate in a consultation process for making special education services available to students in nonpublic schools,[20] and to “allocate a proportional share of federal IDEA funds to provide special education and related services to parentally-placed private school children” with disabilities.[21] These “more limited services provided to parentally-placed children in private schools is commonly known as equitable participation, and is distinct from the FAPE requirement.”[22] 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[23]:
“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...”
Where it is determined that IESP services were not appropriately provided on an equitable basis, the New York State Education Law permits a hearing officer to redress the violation under the same broad authority available for violations of the IDEA.[24] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act”[25] and damage awards are not available under the IDEA.[26] The hearing officer “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[27]
FINDINGS OF FACT AND DECISION
The DOE only produced one exhibit and did not call any witnesses or attempt to defend its provision of the equitable equivalent of a FAPE to Student for the 2021-2022 SY. Resting on the one exhibit admitted for the DOE (Exhibit DOE-2) as regards ‘prong 1’ by no means established that the DOE met its burden in these proceedings. District’s representative in essence conceded that it had denied Student a FAPE for the 2021-2022 SY in closing but sought to rely on ‘prong 2 and prong 3’ assertions in support of its case.
Based on the record and Parent’s evidence, I find that the DOE’s failure to implement the Student’s IESP was tantamount to the denial of a FAPE, and that the IESP services were not appropriately provided on an equitable basis. No SETSS provider was made available by the DOE and Parent was left on her own to find a provider willing to implement the SETSS recommended in the Student’s IESP (T. P84, L4-23).
Relief pursued in these proceedings:
Although the proposed solution catered for, inter alia[28], an award for all related services set forth on Student’s latest IESP for the 2021-2022 SY and related services authorizations for such services “if required by the Parent”, none of this relief was pursued by Parent in these proceedings. The ultimate relief pursued was an award to fund SETSS at an enhanced rate that had been provided to Student for the period September 13, 2021 through November 14, 2021 (Exhibit P-A-2).
Claim for recovery at an “enhanced rate”:
Notwithstanding my finding that the Student was denied the equivalent of a FAPE, and that the recommended IESP services were not provided on an equitable basis by the DOE, during the 2021-2022 SY, that is not the end of the enquiry.
District’s representative challenged the rate being claimed by Parent, namely the enhanced hourly rate of $180.00 as being outside the four corners of the DPC, and also raised equitable assertions, including Student receiving services pursuant to a pendency agreement in circumstances where Student was no longer, according to District’s representative, entitled to services from the District.
Rate claimed:
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”[29].
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.'"[30].
A district is required by State law to locate and assign publicly provided teachers for a dually enrolled student[31]. It has been found that the District's system for providing SETSS 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[32].
It has been held that "a board of education lacks authority to provide instructional services through an independent contractor"[33] and that the application of State law requires that core instruction provided by a school district 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[34].
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"[35].
Parent submitted into evidence an affidavit by the Agency’s controller (Exhibit P-C), as well as a printout of “Certificate Information for SETSS Providers” (Exhibit P-D) for Provider (defined on page 22). District’s representative cross-examined Parent’s Witness. Parent’s Witness stated in her affidavit inter alia that: She is the Controller at the Agency; the Agency agreed to provide Student with ten hours of SETSS per week; the Agency charges $180.00 per hour for SETSS; the Agency’s “rate of $180/hour is commensurate with other SETSS agencies in New York City”; and that in addition to the amount paid directly to the SETSS provider, the remainder of the fee is used by the Agency to pay for overhead, including office staff, materials, training, supervision, assessments, etc. Parent’s Witness was called to testify, however neither representative asked any specific questions of this witness relating to the make-up of the rate, or the amount paid to Provider.
Since 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"[36].
I have no reason to doubt Parent’s testimony that she made attempts to find a provider and was unsuccessful in finding one willing to provide the mandated services at the District’s standard rate. Parent referenced her call list entered into evidence (Exhibit P-G), which listed some of the provider’s she called, implying that there may have been more (T. P84, L10-23). It is not reasonable, as suggested by District’s representative, to have expected Parent to call all of the providers on the list provided on the DOE website, especially as it is not Parent’s obligation in the first place to find a provider.
Parent also testified as to an obligation to pay for the SETSS provided by the Agency to the Student. Even though a contract was not disclosed, there is testimony on record of the proof of an agreement between Parent and the Agency that Parent would ultimately be responsible for the cost of the provided SETSS (T. P85, L7-17; P102, L19-22). Cross-examination by the District’s representative did not discredit Parent or her testimony on this point.
While District’s representative did not challenge the rate of $180.00 per hour claimed as being “excessive”, an equitable consideration has been asserted, namely that the rate claimed does not fall within the four corners of the DPC. I find that this assertion has merit.
It is asserted in the DPC that Parent was unable to find a provider willing to provide Student with all mandated SETSS for the 2021-2022 SY, however the provider was only willing to do so at an enhanced rate of $150.00 per hour (Exhibit P-A-2). From October 27, 2021 when the DPC was filed, the DOE was on notice that Parent was seeking an enhanced rate of $150.00 from the DOE. The first time that there was some indication that Parent may be pursuing a higher rate was when Parent’s disclosure was provided to the District on August 5, 2022[37], as Parent’s Witness details a rate of $180.00 per hour in her calculation of the amount due to the Agency (Exhibit P-C-2), as distinct from the amount claimed by Parent.
Significantly, the rate of $150.00 is asserted in the DPC as the enhanced rate for the SETSS that an Impartial Hearing Officer had previously ordered the DOE to provide Student. That hearing officer’s decision, together with Student’s IESP (Exhibit P-B), was the basis upon which Student’s pendency program and services were being asserted in the DPC for these proceedings (Exhibit P-A-1, & -5).
Up until just four business days prior to the hearing the DOE was on notice that Parent’s provider had been willing to provide Student with SETSS at $150.00, not $180.00 per hour, and that was the rate being sought. It was only at the IH held on August 11, 2022 that it was clear that Parent was seeking the enhanced rate of $180.00 per hour to be awarded, and not the amount claimed in the DPC of $150.00 per hour.
For me to now order a higher rate in circumstances where: there was no attempt made to amend the DPC; the DOE would have already had to have made a determination of the evidence, documentary and witnesses, needed for the hearing pursuant to the ‘5-business day rule’; relying at the time of making that determination that the rate of $150 (not $180) was at issue, which rate had been ordered in the previous decision, would be highly prejudicial to the DOE.
New York State Education Law section 3001 (2016) states that a provider should be licensed in the area of the grade of the child, however, this applies to teachers being employed in public schools. The certification, or lack thereof, is however relevant when it comes to determining a reasonable rate for the services provided.
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[38], 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[39].
Included in Parent’s disclosure is a printout of the Certificate of Information for New York State Teaching Certificate Holder (Exhibit P-D), for the Provider who provided SETSS to Student. It is evident therefrom that Provider held, inter alia, certification for “Special Education Permanent Certificate” and “Pre Kindergarten, Kindergarten And Grades 1-6 Permanent Certificate”.
Whilst Provider was not called as witness and there is no evidence on record to make a finding that Provider provided such specially designed instruction and supports, Provider’s is suitably qualified based on Certificate of Information for New York State Teaching Certificate Holder (Exhibit P-D).
Parent testified that she was very happy with Provider’s services and that Student made progress “for sure” because of Provider’s services. It was the DOE’s obligation to provide the SETSS mandated on the Student’s IESP for the 2021-2022 SY. Had Parent done nothing, Student would likely not have received any SETSS, and missed out on the progress that Parent attested to.
Based on the above factors, I find that Parent is entitled to an award for SETSS and that a reasonable rate in the circumstances of this case for the SETSS to be funded is an amount of $150.00 per hour.
Another equitable factor that was raised pertains to whether Student received services pursuant to the pendency agreement concluded between the parties, even after the Parent had left NYC. If applicable, such a factor would be a relevant equitable consideration justifying an adjustment of the amount to be awarded to Parent. Given that the DPC was filed on October 27, 2021, pendency rights would have accrued from that date, which date falls within the period of Parent’s claim.
Parent’s Witness stated in response to my clarification question regarding the number of hours provided and the time period, that the Agency had provided forty three and a half hours of services to Student from September 13, 2021 to November 14, 2021 (T. P103, L14-23). Parent’s Witness also stated, in response to my clarification question whether the amounts referenced during the said period were provided in accordance with Student’s IESP, that she did not look at it week by week but that Provider usually has a copy of the IEP[40] and follows the IEP (T. P104, L3-10).
There are approximately nine weeks during the period for which Parent is seeking an award of SETSS. According to Student’s IESP, Student was entitled to ten period of SETSS per week (Exhibit P-B-12), which would equate to approximately ninety periods. Parent is however only seeking an award for forty three and a half, which is less than half. This would suggest that some of the SETSS periods have already been covered pursuant to the pendency agreement. Since neither party provided detailed evidence of what services were, and were not, claimed and paid pursuant to the pendency agreement, my award caters for the possibility that an adjustment is required on equitable grounds to avoid an over-payment, and to cater for services claimed and paid out under pendency related to the time period after the family had left NYC.
Since Parent’s representative has represented that Parent is not claiming any amounts in these proceedings for the time period after Parent (and Student) had left NYC (T. P57, L13-17), a basis for denying the DOE’s motion to dismiss (see below), the qualification to my award to potentially avoid an overpayment should be of no consequence to the amount awarded to Parent if the representation is correct.
In the circumstances, Parent is entitled to an Order for payment of SETSS provided by the Agency to Student during the 2021-2022 SY at an enhanced rate, but adjusted as regards the rate and qualified to avoid an overpayment due to the above equitable considerations. Other than the relief set out in my Order below, I find that no basis and/or evidence in the record supports any additional relief.
DOE’s Motion to Dismiss:
District’s representative filed a Motion to Dismiss for the DOE, relying upon Student having left NYC, and therefore not being a resident of NYC, as relieving the DOE of its obligation to provide Student with a FAPE for the 2021-2022 SY (Exhibit IHO-I). Not only did the evidence establish that Parent and Student only left towards the end of November 2021, but Parent’s representative also confirmed that Parent was not seeking an award for the time period after the family had left NYC. Since District’s representative’s motion sought an order that Parent’s request be denied in its entirety, and the evidence established that the DOE was not relieved of its obligation to provide Student with a FAPE for the entire 2021-2022 SY, the District’s motion is accordingly denied.
ORDER
Based upon the above Findings of Fact, it is hereby:
- • ORDERED that, the DOE is directed (subject to #2 of this Order) to fund Student’s SETSS for the 2021-2022 SY (ten times per week - Period), but only for the period commencing on September 13, 2021 through to November 14, 2021 at the enhanced rate of $150.00, by issuing payment directly to the Agency, upon the submission of invoices for the SETSS rendered to Student during that specified period, together with an affidavit referencing the Agency’s invoices and attesting to the provision of the SETSS provided to the Student for the period covered by each invoice, up to a maximum of forty three and a half hours in total.
- • FURTHER ORDERED that, the DOE’s obligation to fund Student’s SETSS set out in #1 of this Order, shall be reduced by any payments made by the DOE for SETSS and/or periods of SETSS and/or related services provided to, or for and/or on behalf of, Student in terms of a pendency agreement that relate to the period from November 15, 2021 to June 30, 2022.
SO ORDERED.
DATED: September 21, 2022
__H.A.C._(Signed Electronically)___
Impartial Hearing Officer
Harry A. Christodoulou
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.
DISTRICT’S EVIDENCE
Exhibit
Title
Date
Pages
1.
Withdrawn
-
-
2.
Events Sheet
07/22/2020 – 07/11/2020
2
PARENT’S EVIDENCE
Exhibit
Title
Date
Pages
A.
Request for Due Process Proceeding and Notice of Appearance
10/26/2021
8
B.
IESP
06/14/2017
15
C.
Affirmation of Services from Parent’s Witness/Agency
08/05/2022
2
D.
Certificate Information for SETSS Providers
2021 - 2022
1
E.
Email from School re: Attendance
08/04/2022
1
F.
Letter from School
08/__/2022
1
G.
Parent’s Call List
08/24/2021
1
IHO’S EVIDENCE
Exhibit
Title
Date
Pages
I
Motion to Dismiss for the DOE, plus exhibits
08/10/2022
19
APPENDIX
REDACTED
Footnotes
[1] The DPC was filed with the Impartial Hearing Office at 5:42pm on October 26, 2021, after regular business hours (Exhibit P-A-8). Accordingly, the “Date of Initial Request” reflected in my notice of appointment is listed as October 27, 2021.
[2] U.S.C. § 1400 et seq.
[3] C.F.R. § 300 et seq.
[4] Educ. Law Art. 89 § 4404 et seq.
[5] NYCRR § Part 200.
[6] Parent’s representative objected to the rebuttal witness being called, which objection was dealt with on the record (T. P107-110).
[7] I understood this assertion to be: commensurate with the rate charged by other SETSS agencies in NYC.
[8] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[9] 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].
[10] U.S.C. § 1415[f][3][E][i].
[11] See Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]; G.M. v. Dry Creek Joint Elementary Sch. Dist., 595 F. App'x 698, 699 [9th Cir. 2014]; Jalloh v. Dist. of Columbia, 535 F. Supp. 2d 13, 19-20 [D.D.C. 2008]; and Sykes v. Dist. of Columbia, 518 F. Supp. 2d 261, 267 [D.D.C. 2007], as well as Application of a Student with a Disability, Appeal Nos. 20-167; 20-203 and 21-032.
[12] Rowley, 458 U.S. at 203.
[13] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.
[14] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[15] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[16] NYS Educ. Law § 4404(1)(c).
[17] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[18] Provisions of section 3602-c; See also 34 CFR 300.130 and 300.145-147.
[19] See 34 C.F.R. § 300.137(a).
[20] See 34 C.F.R. § 300.134.
[21] E.T. and D.T. ex rel. E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at 10 (S.D.N.Y. 2012) (citing J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 665 [S.D.N.Y. 2011] [internal quotation marks omitted]); see also 20 U.S.C. § 1412(a)(10)(A)(i)-(ii); 34 C.F.R. §§ 300.131 – 300.133.
[22] E.T. and D.T. ex rel. E.T., supra., at 11 (internal quotations and citations omitted); c.f. Application of a Student with a Disability, Appeal No. 20-115 (Sept. 3, 2020) at pg. 4 (noting that in a particular case the difference in applying a FAPE standard or an “equitable services standard” is a “distinction without a difference” where N.Y. Educ. Law § 3602-c “has been routinely treated... as providing eligible students with an individual right to special education services that must be tailored to the student’s particular needs by the CSE” that are then protected “through the due process hearing system called for by the IDEA” (internal citations omitted)).
[23] 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.
[24] See Application of a Student with a Disability, Appeal No. 20-023 (citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 [D. Conn. 2017]).
[25] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[26] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[27] See Doe v. East Lyme, 790 F.3d at 454.
[28] Although a pendency order was also sought, the parties referenced a pendency agreement having been reached between the parties during the hearing (Exhibit P-A-5, -6, & -7).
[29] Application of a Student with a Disability, Appeal No. 20-140.
[30] Ventura de Paulino v New York City Dept. of Educ., 959 F3d 519, 526-27 [2d Cir 2020] [citations omitted].
[31] Educ Law § 3602-c[2][a].
[32] 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.
[33] Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeal of Woodarek, 46 Ed Dept Rep 1, Decision No. 15,422).
[34] 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].
[35] Application of a Student with a Disability, Appeal No. 20-140.
[36] 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.
[37] This is the date that Parent’s disclosure was sent by email to District’s representative and me. It is also the date of Parent’s Witness’s affidavit (Exhibit P-C-2).
[38] 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.
[39] Application of a Student with a Disability, Appeal No. 20-140.
[40] Although Parent’s Witness referenced an IEP, I understood her to be referencing Student’s IESP (Exhibit P-B) as that is what I had expressly asked her about.