NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBER: 565088 - NYC: 220551
FINDINGS OF FACT AND DECISION
Case Number: 220551
Student’s Name: [REDACTED]
School District: [REDACTED]
Impartial Hearing Officer: Richard J. Zeitler, Jr.
Date of Filing: 11/02/2021
Hearing Requested by: [REDACTED]
Date of Hearing: 05/04/2022
Record Close Date: 05/04/2022
Date of Decision: 05/21/2022
Names and Titles of Persons Who Appeared May 4, 2022
For the Student
[REDACTED], Esq.
[REDACTED], Educational Director For the New York City Department of Education
[REDACTED], District Representative
BACKGROUND
On October 28, 2021, the Parent, by and through the Parent’s Attorney, filed a due process complaint (DPC) against the New York City Department of Education (DOE or Department), on behalf of the Student, under Case No. 220551, pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”), see 20 U.S.C. § 1415(f), and New York State Education Law §§ 4404(1) and 3602-c (2)(b)(1).[1] The DPC asserts that the Student was denied a free and appropriate public education (FAPE) because of the delay in convening an individualized education services program (IESP) meeting since November 15, 2018,[2] and because the DOE has failed to implement the services described in the IESP.[3] The Parent has found a SETSS Provider and the DPC requested pendency in the IESP, and that the provider be paid its prevailing rate for services provided during the 2021-2022 school year (SY).[4]
PROCEDURAL ISTORY
I was appointed the impartial hearing officer (IHO) over this matter on March 23, 2022. On April 6, 2022, a pre-hearing conference was held, where the DOE did not dispute the Parent’s pendency request. I issued an Interim Order granting pendency, as well as a Pre-Hearing Conference Summary and Order, on April 6, 2022,[5] as well as an Order of Extension on April 25, 2022.[6] The merits hearing was held before me on May 4, 2022, wherein all of the Parent’s exhibited were admitted into evidence without objection.[7]
FINDINGS OF FACT
At the hearing, the following was not in dispute. The Student is 11 years old and, for the 2021-2022 SY, is parentally placed in a Private School.[8] The Student is classified by the DOE’s Committee on Special Education (CSE) as a student with a Speech or Language Impairment,[9] and while there are, in fact, two IESPs in evidence, dated November 15, 2018 and December 1, 2020,[10] they both recommends the following services: (1) five periods per week of special education teacher support services (SETSS), with direct service provided in a group service in the English language, (2) three 30-minute sessions per week of occupational therapy, provided as an individual service in the English language, and (3) three 30-minute sessions per week of speech-language therapy, provided as an individual service in the English language.[11]
At the hearing, the Department’s Representative exercised the Department’s right to cross-examine witnesses and present a closing statement, but the Representative also chose to not present a case-in-chief, notwithstanding the Department’s burden with respect to FAPE.[12] The Department’s Representative also expressly did not dispute the Student’s services as described in the IESPs, noting, “There is just the rate issue.”[13]
According to the Parent’s Attorney, the DOE’s failure to provide a FAPE is twofold. First, there has been a “delay in convening a new IE[S]P meeting,” which has left the November 15, 2018 IESP “outdated and expired.”[14] Second, “Parent has been unable to locate a provider” because when she “utilized DOE’s online resources to locate a SETSS and related service provider” she learned that they “were unable to service” the Student “due to the low standard rate offered by the DOE[.]”[15] In other words, the failure to provide services directly or pay the prevailing rate for a SETSS provider both constituted denials of FAPE. In support, the Parent’s Attorney submitted a “10-Day Notice of Private Placement,”[16] dated October 28, 2021. The notice describes how the Parent has “no way of implementing the[] recommendations” in the IESP because the Parent, through the Parent’s Attorney, was “unable to locate providers for the SETSS and related services at the DOE’s standard rate,” which left the Parent with “no choice but to implement the IE[S]P” and then “seek reimbursement or direct payment from the DOE.”[17] The Parent, who testified via affidavit,[18] offered the following. The Student “struggles in many academic and social/emotional areas and requires a lot of extra assistance.”[19] Despite her “best efforts, [she] was unable to locate a SETSS Provider for” the Student, even after “many phone calls to independent SETSS providers on the list that is published on the DOE website,” as “none of them were available to service my child at the standard DOE rate.”[20] Because of this, she reached out to and then “signed a contract which obligates [her] to pay for these services in the event that the DOE does not pay the Agency for services provided.”[21] The Service Provider (‘Agency’) is facilitating SETSS for the Student, specifically “5 hours of SETSS per week for the duration of the 2021-2022 school year,” and the Parent requests that the Student’s “SETSS periods be reimbursed at a reasonable market rate” because paying “for these services up front would pose extreme financial hardship” on the Parent, who “would not be able to pay for these services without outside financial support from friends and family.”[22] Finally, the Parent requests that “DOE continue to fund the other related services for the rest of the school year, per the IESP.”[23] The Department’s representative had no cross-examination questions for the Parent.
The Parent’s Attorney next produced the affidavit of the Agency’s Educational Director, which describes her education, experience and qualifications in the field of special education, as well as her role at the Agency, including her responsibility for screening and hiring special education teachers and supervisors, and reviewing student evaluations and other clinical materials in order to determine the educational needs of students.[24] The Agency charges $182.00 per hour for its provision of SETSS, which includes “one-on-one supervision, educational resources and support, professional development and materials, employment taxes, administrative costs and overhead costs” and “monthly professional development training to its providers” that “focus... on special education teaching methods and research-based teaching strategies.”[25] In addition to the above, the Educational Director appoints “an appropriate educator to the student” to “ensure that each teacher assigned has the expertise needed for that specific student.”[26] For the Student here, the Educational Director selected two SETSS teachers “for the 2021-2022 academic school year” who are both “certified by NYS to teach students with disabilities” and “trained and experienced to teach literacy and comprehension to school aged children and adolescents.”[27] The Educational Director also appointed an “Educational Supervisor” to oversee the work of the SETSS teachers. The Educational Supervisor “is a certified special education teacher with many years of experience as an educator.”[28]
One of the SETSS teachers prepared a progress report, dated February 17, 2022, which describes the work being done to address the Student’s delays in reading, math, reading comprehension, and language skills that “require[] specialized instruction using multi-sensory teachings and hands on learning.”[29] Noting that the Student “has made some progress” in the areas of reading comprehension and impulsive behavior control,[30] the report stresses that the Student “is motivated to achieve academic progress” and that it “is crucial for [the Student] to have academic support in order to function in a mainstream setting.”[31] The Educational Director adds that the “progress report entered into evidence is an accurate representation of” the SETSS teachers’ work.[32] Goals have been set for the Student “to work on during the 2021-2022 school year and are reviewed quarterly,” with services that “are provided 1:1 [one-to-one] both in the classroom and in a separate location” with “a great deal of specialized instruction.”[33] The Student’s “progress is measured through quarterly assessments, consistent meetings with the providers and support staff, observation... in the classroom, and daily session notes.”[34] Upon the above, it is the Educational Director’s opinion that the Student “has already shown signs of progress with his SETSS service providers” but that his “academic and social delays warrant the need for continued services... for the 2021-2022 school year.”[35] The Educational Director was present by telephone at the hearing, and on cross-examination, she testified, in part, as follows. The two SETSS teachers that work with the Student are paid $95 per hour and $100 per hour, respectively.[36] As of the date of the hearing, there have been six professional development trainings for the Agency’s SETSS teachers, which are mandatory.[37] The Agency services approximately 800 students.[38]
In closing, the Department’s Representative argued as follows: the Department agrees with the mandated services in the IESP; the Agency’s $182 per-hour rate is excessive; the Parent testified that there is a signed contract with the Agency but it was not presented as evidence, nor was any evidence offered with respect to the Parent’s financial hardship.[39]
In closing, the Parent’s Attorney contended the following: there is no dispute as to services; the Department submitted nothing with respect to FAPE, and nothing in support of their claim that the Agency’s rate is excessive; there is case law from a decade ago, issued by the NYS State Review Office (SRO), that upheld a rate of $150 per hour; “regardless of what the Agency charges, the rate that we’re asking for is reasonable market rate”; this case is about “the services that the District didn’t provide, and was put on notice that they were not providing, and elected to take absolutely no action.”[40]
I find, having reviewed the entire record, including all the evidence admitted at the hearing, that the affidavit testimony of the Parent is credible. It was detailed, comprehensive, and consistent with the record and the allegations in the due process complaint. I note that the DOE offered no evidence to challenge the parent’s veracity. I also credit the affidavit and live testimony of the Educational Director. It was likewise detailed, comprehensive, consistent with the record and the allegations in the due process complaint, and uncontradicted by the Department.[41] Finally, I credit the documents submitted by the Parent, as they were descriptive, internally consistent, probative of the issues before me, and undisputed.
LEGAL FRAMEWORK
The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[42] A FAPE has been offered when the education district complies with the procedural requirements set forth in the IDEA, and when the individualized education program developed through those procedures is reasonably calculated to enable the student to receive educational benefits.[43]
With respect to students who are enrolled in nonpublic schools, however, the IDEA does not confer entitlement to all the special education programs or related services they would receive if they attended public schools.[44] Instead, the IDEA requires school districts to participate in a consultation process for making special education services available to students in nonpublic schools,[45] 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.[46] “Th[ese] more limited services provided to parentally-placed children in private schools is commonly known as equitable participation, and is distinct from the FAPE requirement.”[47] In New York, “Boards of education... shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent or person in parental relation of any such student.”[48] The “request shall be reviewed by the committee on special education [CSE] of the school district of location, which shall develop an individualized education service program [IESP] for the student... [and] assure that special education programs and services are made available to student with disabilities... on an equitable basis” to programs at other public or nonpublic schools in that district.[49] Offering services on “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... 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.”[50] As such, 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.”[51]
If a dispute arises between a parent and a school district over the provision of services under an IESP, “[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil” via an impartial due process hearing, as called for by the IDEA.[52] Where it is determined that IESP services were not appropriately provided on an equitable basis, the New York State Education Law permits an IHO to redress the violation under the same broad authority available for violations of the IDEA.[53] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act,”[54] and damage awards are not available under the IDEA.[55] Thus, the tribunal “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[56]
ANALYSIS
Under the IDEA and the NY State Education Law, school districts have the burden of proof that a FAPE has been provided to the student, 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.[57] Here, the Department’s burden was to demonstrate that the subject IESP was reasonably calculated to provide this Student with educational benefits.
The last agreed upon IESP was developed on November 15, 2018, and while the Department did create a more recent IESP with an identical offer of services on December 1, 2020, it offered no explanation as to why a newer IESP had not yet been developed. In addition, the only action taken by the Department to implement either IESP was to rely upon the Parent to contact and obtain a SETSS provider from a list on the Department’s website.[58] Despite her best efforts, the Parent was unable to locate a provider on the Department’s list because none of them were able to provide services at the Department’s standard rate.[59] This effectively compelled the parent to resort to self-help in order to effectuate the IESP, which has been held per se inappropriate: the “de facto delegation from the district to the parent of the obligation to find a SETSS provider to implement the IESP at an acceptable rate is manifestly unreasonable,”[60] and a violation of State law.[61] “[B]ecause the district was not authorized to contract for the provision of an independent special education teacher,”[62] the DOE failed to implement the IESP, which constitutes a denial of FAPE.[63]
Notwithstanding a lack of FAPE or equitable services, this does not end the inquiry. “[T]he caselaw supports [SETSS] reimbursement and direct payment remedies in a unilateral placement case, which forecloses any complete disavowal of the parent’s burden of production and persuasion related to the private, unilateral services obtained by the parent.”[64] In a case such as this, where the central issue is whether a third-party SETSS provider selected by the parent should be remunerated with an enhanced rate over what the Department normally pays, the Parent’s evidence must be scrutinized, consistent with my obligation to ensure that the remedy “be appropriate in light of the purpose of the Act.”[65] The evidence therefore must show that the Agency’s rate is reasonable and appropriate under the circumstances, The record before me includes evidence that the Student has been provided SETSS five periods per week with related services in his private mainstream school during the 2021-2022 school year, and that this includes 1:1 specialized instruction.[66] One of the SETSS teachers has a Professional Certificate in special education, while the other has an Internship Certificate.[67] They are trained and experienced to teach literacy and comprehension to school aged children and to adolescents, and both are supervised via weekly visits from a more senior level special education teacher.[68] They have prepared sessions, created goals, written reports and – together with their supervisor – developed a comprehensive program for the Student, with the aim to improve her language, reading, comprehension and other academic skills.[69] These efforts are leading to positive results, as the Educational Director and the SETSS teachers report that the Student is showing progress.[70] For all of this work, the SETSS teachers are paid $94 per hour and $100 per hour. The evidence offered by the Parent also comprehensively explains the rest of that rate, including the employment of supervising special education teachers, the materials and other educational support given to its SETSS teachers (including monthly training with a focus on special education teaching methods and strategies), and standard business expenses such as taxes, administrative costs and overhead costs.[71]
The Department offered nothing to rebut the Parent’s evidence supporting the Agency’s rate, such as whether there is an average rate for SETSS, or whether a comparison can be made of rates, or if there is a range of rates for the provision of SETSS similar to that called for in this IESP, either generally or specifically to this school year or this geographic area. Without even and attempt to put forth some evidence, the Department’s mere assertion that the rate was excessive is no challenge at all.
The decisions of the State’s administrative appellate tribunal do, however, provide some guidance as to the appropriateness of a SETSS rate. The decisions have approved rates of $150 per hour, [72] as well as $175 per hour,[73] and even $200 per hour.[74] When considered against these holdings, the Agency’s $182 hourly rate cannot be deemed per se unreasonable.
I do, however, find that the qualifications of one of the SETSS teachers mitigates against the requested rate. With respect to their respective certificates for teaching students with disabilities, one of the SETSS teachers holds a Professional Certificate, while the other has achieved only an “Internship Certificate.”[75] The Parent did not define what “internship” means in this context; however, even allowing for a generous interpretation of such a title, possessing an internship certificate is clearly not a Professional Certificate and it indicates something less than full certification. Given the Parent’s obligation to justify the enhanced rate with their providers’ reasonable qualifications,[76] and there being a lack of explanation for the Internship Certificate, as well as no evidence that the SETSS teacher with the Professional Certificate was present when the Internship Certificate SETSS teacher provided services to the Student, I conclude that a reduce rate is warranted. The SETSS provider justified its overhead costs on top of what it pays its SETSS teachers, but the Department should not be responsible for the entirety of the amount the Agency paid to the teacher holding the Internship Certificate. I therefore find that the overall rate should be no more than $150 per hour.
Notwithstanding my approval of an enhanced rate, I am mindful that the equitable remedy claimed in this matter is a form of compensatory education to the Parent and not to the Agency.[77] The Department should only be responsible for payment if the parent demonstrates that they either already paid the SETSS Provider, or that they obligated to the provider even if the District was no ordered to pay for services.[78] Here, the Parent established that she entered into an agreement with the Agency, and that this left her contractually liable to pay the Agency if the Department is relieved of that obligation, which she credibly asserted would impose an extreme financial hardship upon her.[79] The Parent therefore is entitled to a remedy. I note that but for the Parent having located an agency to provide the SETSS, the Student would likely not have received these necessary services during the 2021-2022 school year. Under such circumstances, it is an appropriate remedy to order the Department to pay the established prevailing rate for the SETSS described in the subject IESP, modified as I described given the qualifications of one of the SETSS teachers.
Finally, I note one further limitation to the remedy in this case. In the due process complaint, the Parent requests that “DOE continue to fund the program outlined in the IE[S]P dated 11/15/2018” including the provision of “compensatory periods of all services” that the Student “is entitled to under pendency for the entire 2021-2022 school year – or the parts which were not serviced.”[80] The Parent’s “Ten Day Notice” and the email transmitting it to the DOE, however, are dated October 28, 2021,[81] which is after the school year began. In addition, the due process complaint is also dated October 28, 2022,[82] and it does not describe when the SETSS services began, or why the Ten-Day Notice could not have been filed before October 28, 2021. The Department was therefore deprived of its right to be notified earlier of the Parent’s intent to obtain payment at a specific enhanced rate from the Department for private SETSS. Filing the notice before October 28, 2021 would have given the Department an opportunity to rectify the deficiencies described in the Ten-Day Notice by the tenth following business day, which here was November 11, 2021. Equitable considerations allow for an award to be reduced when the parent failed to comply with certain requirements, such as the obligation to provide a proper ten-day notice.[83] Therefore, and to the extent the instant due process complaint requests compensatory services starting from the beginning of the 2021-2022 school year, I find that the Department’s obligation to pay for such services at the enhanced rate shall not begin until after the ten-day notice period ended, which here was November 12, 2021. The award shall be calculated accordingly.
DECISION AND ORDER
It is hereby ordered, that the New York City Department of Education shall pay the SETSS Provider for the SETSS Services it has provided and will provide to the Student during the 10-month 2021-2022 school year, less any amounts paid under pendency, for services provided up to and including November 11, 2021, at the Department’s standard rate, and for SETSS services provided on November 12, 2022 and thereafter, at a rate of $150 per hour, with such payment to be made within thirty (30) days of the SETSS Provider’s submission to the DOE of any invoices for such services, together with an affidavit attached to each invoice attesting to the provision of the SETSS Services provided to the Student for the period covered by each invoice, up to the end of the 2021-2022 school year, along with related services.
So Ordered.
Richard J. Zeitler, Jr. Dated: May 21, 2022
Richard J. Zeitler, Jr. (signed electronically)
Impartial Hearing Officer
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 EVIDENCE
Exhibit
Title
Date
Pages
N/A
N/A
N/A
N/A
PARENT EVIDENCE
Exhibit
Title
Date
Pages
A.
Due Process Complaint
10/28/2021
6
B.
Individualized Educational Services Program (IESP)
11/15/2018
10
C.
Ten-Day Notice
10/28/2021
2
D.
Individualized Educational Services Program (IESP)
12/01/2020
15
E.
Parent’s Affidavit
05/03/2022
2
F.
Service Provider’s Affidavit
04/13/2022
4
G.
Progress Report
02/17/2022
6
H.
Service Providers’ Credential
10/14/2021 & 11/08/2021
2
IHO EVIDENCE
Exhibit
Title
Date
Pages
I.
Interim Order on Pendency
04/06/2022
5
II.
Pre-Hearing Conference Summary and Order
04/06/2022
2
III.
Order of Extension
04/25/2022
1
Footnotes
[1] See Ex. A.
[2] The Parent’s attorney later conceded that there was a more recent IESP, convened on December 1, 2020 (Ex. D), but maintained that the November 15, 2018 document was the last agreed upon IESP.
[3] See id. It is noted that the two IESPs recommend identical services.
[4] See id. The DPC also reserves the Parent’s “right to ask for compensatory SETSS and related services for any periods not provided during the current 2021-2022 school year”; however, this was now specifically sought at the hearing and therefore will not be considered as part of the relief. This decision will therefore address the remaining proposed resolutions, including that I find a denial of FAPE and that the services outlined in the last agreed-to IESP be funded “at the provider’s prevailing rate.”
[5] See IHO Exs. I and II.
[6] See IHO Ex. III.
[7] See Exs. A through H. The Department did not present any exhibits.
[8] See Ex. A.
[9] See Exs. B-1 and D-1.
[10] See footnote 2.
[11] See Exs. B-7 and D-12.
[12] See May 4, 2022 Hearing Transcript (Tr.) at pg. 11:13-19.
[13] See id. at pg. 9:13-14.
[14] Ex. A-2. The Parent’s Attorney did not state whether this same argument would apply to the more recent, December 1, 2020, IESP.
[15] Id.
[16] See Ex. C. The document is electronically signed by the Parent’s Attorney on behalf of the Parent.
[17] Id. at pg. C-2.
[18] See Ex. E.
[19] Id. at pg. E-1.
[20] Id. at pg. E-2.
[21] Id.
[22] Id.
[23] Id.
[24] See Ex. F-1 to F-2.
[25] Id. at F-2 to F-3.
[26] Id. at F-2.
[27] Id at. E-3; see also Ex. H (printout from the NYS Dept. of Education Office of Teaching Initiatives, which lists the cited SETSS teachers’ active Professional certificates in “Early Childhood Education” and “Students with Disabilities” (both “Birth-Grade 2”)).
[28] See Ex. F-3 (describing the Educational Supervisor’s experience “as a General education teacher in a mainstream school, [a] Special Education support teacher, as well as a Master teacher in a Special Education school for children with learning and language disabilities” and having “trained in many reading methodologies and has trained co-teachers and assistant teachers in implementing these programs”).
[29] Ex. G-6. The report further states that the Student “is performing below grade level in all domains” including “a significant delay of three grade levels below fifth grade reading level.” Id. at G-1. The SETSS teachers are working with the Student to “read with sufficient accuracy and fluency to support comprehension,” to “segment a multi-syllabic word into syllables to decode correctly,” to “develop[e] automatic word recognition,” to “demonstrate understanding of a text,” to “answer ‘WH’ questions correctly after reading a passage,” to “express his likes and dislikes and not just answer ‘I don’t know,’” and to “[a]cquire and use accurately grade-appropriate conversational, general academic, and domain-specific words and phrases, including those that signal spatial and temporal relationships.” Id. at G-1 through G-5.
[30] See Id. at G-2 through G-4.
[31] Id. at G-1.
[32] Ex. F-4.
[33] Id.
[34] Id.
[35] Id.
[36] See Tr. at pg. 18:13-21. The Educational Director explained that the higher paid employee is “an Orton-Gillingham-certified teacher.” Id. at pg. 22:18-24.
[37] See id. at pp. 23:16 through 24:2; the Educational Director did not have the attendance records to confirm that the two cited SETSS providers had attended all six trainings, but she noted that there were attendance records and reiterated that attendance was mandatory.
[38] See id. at pg. 22:18-24.
[39] See id. at pp. 25:3 through 26:23.
[40] See id. at pp. 27:3 through 25:15.
[41] For example, the Department’s Representative argued that the Parent could have offered corroborating evidence to support the testimony regarding a signed contract with the Agency, or the assertion of the Parent’s inability to pay the Agency; the Department, however, offered no evidence at all, including anything to dispute the Parent’s testimony.
[42] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[43] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[44] See 34 C.F.R. § 300.137(a)
[45] See 34 C.F.R. § 300.134.
[46] 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.
[47] 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)).
[48] N.Y. Educ. Law § 3602-c(2)(a).
[49] Id. at § 3602-c(2)(b) (emphasis added). This law is known as the “dual enrollment” statute. See Application of a Student with a Disability, Appeal No. 20-115 (Sept. 3, 2020) at pg. 1.
[50] 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).
[51] Id.
[52] Education Law § 3602-c(2)(b)(1); 20 U.S.C. §§ 1221e-3, 1415(e)-(f); Education Law § 4404(1); 34 CFR §§ 300.151- 300.152; 8 NYCRR §§ 200.5(h)-(l).
[53] 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]).
[54] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[55] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[56] See Doe v. East Lyme, 790 F.3d at 454.
[57] Education Law § 4404(1)(c); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012).
[58] See Exs. A-2 and E-2.
[59] Ex. E-2.
[60] See Application of a Student with a Disability, Appeal No. 21-068 at pg. 9 (April 21, 2021) at pg. 9.
[61] See Application of a Student with a Disability, Appeal No. 20-115 at pg. 6 (“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,” id. (internal citation omitted, emphasis added); see also Application of a Student with a Disability, Appeal No. 20-087; and Application of a Student with a Disability, Appeal No. 20-140. In other words, if the DOE is not directly performing core instruction, it should not then be passing the obligation to contract out that instruction onto the Parent.
[62] See Application of a Student with a Disability, Appeal No. 20-140, at pg. 12 (Sept. 23, 2020).
[63] See Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
[64] See Application of a Student with a Disability, Appeal No. 20-115 (Sept. 3, 2020) at pg. 9.
[65] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[66] See Exs. B-7, D-12, and F-3.
[67] See Ex. H (a printout from the NYS Dept. of Education Office of Teaching Initiatives, listing one of the teachers as having obtained a “Students with Disabilities (Birth-Grade 2), Professional Certificate,” while the other has only a “Students with Disabilities (Birth-Grade 2), Internship Certificate” (emphasis added)). This is noteworthy because while SETSS providers need not necessarily be State-certified, see Application of a Student with a Disability, Appeal No. 12-125 (Dec. 12, 2013), the appropriateness of the SETSS services selected by the Parent must be demonstrated, through objective evidence of special education instruction or supports that are specially designed by the student’s providers, who must have reasonable qualifications related to the student’s deficits. See Application of a Student with a Disability, Appeal No. 20-140 (Dec. 12, 2013).
[68] See Ex. F-3.
[69] See Ex. F-3 through F-4.
[70] See Ex. F-4 and Ex. G-2 through G-4.
[71] See id. at F-2 to F-3.
[72] At the due process hearing, the Parent’s attorney cited Application of a Student with a Disability, Appeal No. 11-045 (July 25, 2011), which awarded a SETSS rate of $150 per hour 11 years ago. According to the U.S. Department of Labor’s Bureau of Labor Statistics, Consumer Price Index Inflation Calculator (found at <https://www.bls.gov/ data/inflation_calculator.htm>, last visited May 8, 2022), $150.00 in July 2011 has a purchasing value of $190.89 as of March 2022 (the latest month calculable). See Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 A.D.3d 13 (2nd Dept. 2009) (judicial notice may be extended to government websites that provide official data).
[73] See, e.g., Application of a Student with a Disability, Appeal No. 21-138 at pp. 12-13 (Aug. 11, 2021) (determining that “there is no basis for a finding that the rate of $175 was unreasonable” but affirming a lower SETSS rate where it was further found that the Parent’s actions warranted a reduction, including that the parent did not provide a ten-day notice per 20 U.S.C. § 1412[a][10][C][iii] and 34 CFR § 300.148[d][1]).
[74] Application of a Student with a Disability, Appeal No. 21-183, at pp. 20-21 (Oct. 29, 2021) (approving compensatory SETSS by a bilingual reading specialist at a rate not to exceed $200 per hour).
[75] See Ex. H.
[76] See Application of a Student with a Disability, Appeal No. 20-140 (Dec. 12, 2013).
[77] See Foster v. Bd. of Educ. Of the City of Chicago, 611 Fed. App.’x 874, 878-79 (7th Cir. 2015) (compensatory education includes reimbursement for out-out-pocket educational expenses).
[78] See Application of a Student with a Disability, Appeal No. 21-068 at pg. 12 (April 21, 2021) (holding that “it is not appropriate equitable relief... to require the district to either reimburse the parent for the costs of SETSS or to directly fund SETSS” where “there is inadequate proof that the parent has expended any funds to pay for SETSS... or is legally obligated to do so”); c.f. Mr. and Mrs. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 430 S.D.N.Y. 2011) (appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award and the parents were obligated to make payments but had not due to a lack of financial resources).
[79] See Ex. E-2. I note that had I not credited the Parent, it would have behooved either the Parent to produce a copy of the executed contract to prove that the Parent was legally responsible for payment. See Application of a Student with a Disability, Appeal No. 21-245 (Feb. 4, 2022) (reversing an enhanced rate award where there was no “reliable evidence that the parent has paid or is liable to [the SETSS provider] for services”); see also Application of a Student with a Disability, Appeal No. 20-087 at pg. 10 (Aug. 20, 2020) (“Obviously, a written contract with the price that the parents were responsible for, signed in advance [of] or contemporaneously with the initiation of the unilaterally obtained services, would have been much more convincing”).
[80] See Ex. A-3.
[81] See Ex. C.
[82] See Ex. A.
[83] See, e.g., Application of a Student with a Disability, Appeal No. 21-138 at pp. 12-13 (Aug. 11, 2021) (reduction in [SETSS] award warranted where the parent did not provide a ten-day notice per 20 U.S.C. § 1412[a][10][C][iii] and 34 CFR § 300.148[d][1]).