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CASE NUMBER: 565321 - NYC: 220767
FINDINGS OF FACT AND DECISION
Case Number: 220767
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: 04/29/2022
Record Close Date: 04/29/2022
Date of Decision: 05/09/2022
Names and Titles of Persons Who Appeared April 29, 2022
For the Student
[REDACTED], Esq.
[REDACTED], Parent
[REDACTED], Educational Director For the New York City Department of Education
[REDACTED], District Representative
BACKGROUND
On November 2, 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. 220767, 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 January 3, 2017, and because the DOE has failed to implement the services described in the January 3, 2017 IESP. 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).[2]
PROCEDURAL HISTORY
I was appointed the impartial hearing officer (IHO) over this matter on March 25, 2022. On April 1, 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 14, 2022.[3] The merits hearing was held before me on April 29, 2022.
FINDINGS OF FACT
At the hearing, the following was not in dispute. The Student is redacted years old and, for the 2021-2022 SY, is parentally placed in a Private School.[4] The Student is classified by the DOE’s Committee on Special Education (CSE) as a student with a Speech or Language Impairment,[5] and the most recent agreed upon IESP, dated January 3, 2017, 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, and (2) two 30-minute sessions per week of speech-language therapy, provided as an individual service in the English language.[6] On September 1, 2021, the Department approved SETSS for the current school year.[7]
In support of its case-in-chief with respect to FAPE, the District representative offered into evidence two forms it sent to the Parent, dated August 24, 2020 and September 1, 2021.[8] Both forms authorized the Parent to choose from a list of SETSS providers, “at no cost to you.”[9] The Department offered no witnesses or other evidence with respect to how it ensured those services were indeed provided, or paid. The Department did not deny that the Student requires the services described in the IESP but asserted that the rate sought by the Student’s SETSS Provider was excessive.
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 January 3, 2017 IESP “outdated and expired.”[10] 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[.]”[11] In other words, the failure to provide or pay the prevailing rate for SETSS services constituted denials of FAPE.
The Parent appeared and, under oath, affirmed her unsigned affidavit, which was then admitted into evidence. Both her written and oral testimony were consistent with the allegations in the DPC. She explained that 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.”[12] Because of this, she reached out to and then contracted with an agency that charges more than the standard rate. 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.”[13] The Parent requests that the Student’s “SETSS periods be reimbursed at a reasonable market rate” because her contract with the Agency obligates her “to pay for the[] SETSS services in the event that the DOE does not pay the Agency,” and paying “up front would impose extreme financial hardship” on the Parent, who “would not be able to pay for these services without outside financial support from friends and family.”[14]
On cross-examination, the Parent testified that she entered into a written agreement with the Agency for the provision of SETSS for SY 2021-2022. She acknowledged that she utilized DOE’s website in an attempt to find a SETSS provider that would accept the standard rate instead of reaching out to DOE directly. The District representative asked about a previous school year where the Student had received SETSS from a provider who accepted the DOE rates. The Parent explained that she no longer utilized that provider because the provider had resigned.
I find the testimony of the Parent detailed, comprehensive, and consistent with the record and the allegations in the due process complaint. I also note that the DOE offered no evidence to challenge her veracity. On these findings, I credit the Parent’s testimony.
The Parent next produced the affidavit of the Agency’s Educational Director, who also appeared for cross-examination. In the affidavit, the Educational Director describes her education and qualifications in the field of special education, as well as her role at the Agency as the one who screens and hires special education teachers and supervisors; she also reviews student evaluations and other clinical materials in order to determine the educational needs of students.[15] The Agency charges $182.00 per hour for its provision of SETSS,[16] 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.”[17] 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.”[18] For the Student here, the Educational Director selected a SETSS teacher “for the 2021-2022 academic school year” that is “certified by NYS to teach students with disabilities” and “is trained and experienced to teach literacy and comprehension to school aged children and adolescents.”[19] The SETSS teacher prepared a progress report, dated November 11, 2021, 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 instruction, visuals and manipulatives, and high levels of encouragement and reinforcements.”[20] The report concludes that it “is crucial for [the Student] to continue receiving specialized instruction to help her function and reach her goals in the mainstream setting.” It is also the Educational Director’s opinion that the Student “has already shown signs of progress with her SETSS provider” and that the Student’s “academic and social delay’s warrant the need for continued services... for the 2021-2022 school year.”[21]
On cross-examination, the Educational Director explained the $182 per-hour rate as follows. Special education teachers hired by the Agency are paid $90-$100 per hour (with the instant SETSS teacher earning $95 per hour). The Agency assigns a supervisor, who performs weekly supervision, including visiting the school, observing the SETSS teacher with the student, and providing support, which is all documented. The Parent’s evidence also includes that the supervisor assigned to this SETSS teacher has been a certified special education teacher since 2013, with extensive additional training.[22] The Education Director described the “programs that are being used with [the Student] includ[ing] Cognitive Connections for executive functioning, Feurestein Mediated Learning Method for comprehension and Social Thinking for the social emotion domain,” which “were identified through a discussion by her [SETSS teacher], direct supervisor and classroom teacher.”[23]
I find the testimony of the Educational Director detailed, comprehensive, and consistent with the record and the allegations in the due process complaint. It was also uncontroverted, as the DOE offered nothing to contradict her statements. I therefore credit the Educational Director and the documents offered in support of her testimony.
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.[24] 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.[25]
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.[26] Instead, the IDEA requires school districts to participate in a consultation process for making special education services available to students in nonpublic schools,[27] 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.[28] “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.”[29] 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.”[30] 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.[31] 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.”[32] 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.”[33]
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.[34] 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.[35] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act,”[36] and damage awards are not available under the IDEA.[37] 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.”[38]
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.[39] Here, the Department’s burden was to demonstrate that the subject IESP was reasonably calculated to provide this Student with educational benefits.
It is undisputed that the last agreed upon IESP was developed on January 3, 2017, and the Department offered no explanation as to why a new IESP had not yet been developed. In addition, the only action taken by the Department to implement the last IESP was to send the Parent two authorizations allowing her to find a SETSS provider from a list on the Department’s website.[40] Despite her best efforts, the Parent was unable to locate a provider on the Department’s list because none of them would accept the Department’s standard rate.[41] 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,”[42] and a violation of State law.[43] “[B]ecause the district was not authorized to contract [out] for the provision of an independent special education teacher,”[44] the DOE failed to implement the IESP, which constitutes a denial of FAPE.[45]
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.”[46] 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.”[47] 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 at a rate of five periods per week in her private mainstream school during the 2021-2022 school year, and that this includes 1:1 specialized instruction.[48] The SETSS teacher is a certified special education teacher who is trained and experienced to teach literacy and comprehension to school aged children and to adolescents,[49] and is supervised via weekly visits from a more senior level special education teacher.[50] Together with the Student’s regular classroom teacher, they developed a comprehensive program for the Student, with the aim to improve her language, reading, comprehension and other academic skills.[51] These efforts are leading to positive results, as the Educational Director reports that the Student is showing progress.[52] For all of this work, the SETSS teacher is paid $95 per hour, more than half of the $182 hourly rate the Agency charges for its services. The evidence offered by the Parent also comprehensively explains and supports 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.[53]
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 an earnest challenge to the Parent’s 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, [54] as well as $175 per hour,[55] and even $200 per hour.[56] When considered against these holdings, the Agency’s $182 cannot be deemed per se unreasonable, and as already noted, the Agency provided a detailed and comprehensive description of all the specialized work it puts into the provision of services to the Student, which the Department failed to rebut. On this record, I cannot and therefore do not find the rate requested by the Parent excessive, and I do find it appropriate under the circumstances.
Notwithstanding my approval of the rate, I am mindful that the equitable remedy claimed in this matter is a form of compensatory education,[57] which means that the Department is only responsible for payment if the parent can also demonstrate that they either already paid the SETSS Provider, or that the parent was legally obligated to pay the provider if the District was no ordered to do so.[58] 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.[59] The Parent therefore is entitled to the 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.
Finally, I must impose one limitation on the remedy in this case. In the due process complaint, the Parent requests that the Agency be paid “for the entire 2021-2022 school year – or the parts which were not serviced.”[60] The Parent’s “Ten Day Notice” and the email transmitting it to the DOE, however, are dated November 2, 2021,[61] which is after the school year began. In addition, the due process complaint is also dated November 2, 2022,[62] and it does not describe when the SETSS services began, or why the Ten-Day Notice could not have been filed before November 2, 2021. The Department was therefore deprived of its right to be notified earlier of the Parent’s intent to obtain payment from the Department for private SETSS. Filing the notice before November 2, 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 16, 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.[63] 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 shall not begin until after the ten-day notice period ended, which here was November 17, 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, for services provided no earlier, however, than November 17, 2021 and less any amounts paid under pendency, at a rate of $182 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.
So Ordered.
Richard J. Zeitler, Jr. Dated: May 9, 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
1.
SETSS Authorization Form
08/24/2020
2
2.
SETSS Authorization Form
09/01/2021
2
PARENT EVIDENCE
Exhibit
Title
Date
Pages
A.
Due Process Complaint
11/02/2021
6
B.
Individualized Educational Services Program (IESP)
01/03/2017
10
C.
Ten Day Notice
11/02/2021
2
D.
Parent’s Affidavit
(undated)
2
E.
Service Provider’s Affidavit
04/27/2022
5
F.
Progress Report
11/11/2021
6
G.
Service Providers’ Credential
09/02/2013 & 08/14/2020
2
IHO EVIDENCE
Exhibit
Title
Date
Pages
I.
Interim Order on Pendency
04/14/2022
5
II.
Pre-Hearing Conference Summary and Order
04/14/2022
3
Footnotes
[1] See Ex. A.
[2] In the DPC, the Parent requests, inter alia, that DOE be compelled to “fund a bank of compensatory periods of all services which [the Student] is entitled to under pendency[.]” The Parent withdrew this demand at the hearing. 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.”
[3] See IHO Exs. I and II.
[4] See Ex. A.
[5] See Ex. B-1.
[6] See id. at B-7.
[7] See Ex. 2.
[8] See Exs. 1 and 2. The Parent’s attorney initially objected to the introduction of these documents but then withdrew the objection, arguing only that they should not be given much weight.
[9] Id.
[10] Ex. A-2.
[11] Id.
[12] Ex. D-1 to D-2.
[13] Ex. D-2.
[14] Id.
[15] See Ex. E-2.
[16] See id. (the affidavit states the hourly rate as $182.50; on cross-examination, however, the Education Director corrected that number to $182.00 per hour).
[17] Id. at E-2 and E-3.
[18] Id. at E-2.
[19] Id at. E-3; see also Ex. G (a printout from the NYS Dept. of Education Office of Teaching Initiatives, which lists the cited SETSS teacher’s active certificate in “Students with Disabilities (Grades 1-6)).”
[20] Ex. F-1. The report states that the Student’s reading is “level T,” which “is a significant delay of two grades below level.” The SETSS teacher is working with the Student to “read with sufficient accuracy and fluency to support comprehension,” to “confirm or self-correct word recognition and understanding,” to “determine the meaning of words and phrases as they are used in a text,” to “recognize figurative language in a text,” to “maintain concentration on a task,” to “spell correctly,” and to “use the relationship between particular words... to better understand each of the words.” Id. at F1 through F5.
[21] Ex. E-4.
[22] See Exs. E-3 (describing the supervisor’s “extensive training in Literacy Instruction... trained by REDACTED” ¶ 15) and G-1.
[23] See Ex. E-4.
[24] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[25] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[26] See 34 C.F.R. § 300.137(a)
[27] See 34 C.F.R. § 300.134.
[28] 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.
[29] 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)).
[30] N.Y. Educ. Law § 3602-c(2)(a).
[31] 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.
[32] 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).
[33] Id.
[34] 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).
[35] 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]).
[36] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[37] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[38] See Doe v. East Lyme, 790 F.3d at 454.
[39] 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).
[40] See Exs. 1 and 2.
[41] Ex. D-1 to D-2.
[42] See Application of a Student with a Disability, Appeal No. 21-068 at pg. 9 (April 21, 2021) at pg. 9.
[43] 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 teacher 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.
[44] See Application of a Student with a Disability, Appeal No. 20-140, at pg. 12 (Sept. 23, 2020).
[45] See Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
[46] See Application of a Student with a Disability, Appeal No. 20-115 (Sept. 3, 2020) at pg. 9.
[47] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[48] See Ex. E-3.
[49] Id.; see also Ex. G (a printout from the NYS Dept. of Education Office of Teaching Initiatives, which lists the cited SETSS teacher’s active certificate in “Students with Disabilities (Grades 1-6)).”
[50] See Ex. G. This is noteworthy because while the provider 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).
[51] See Ex. E.
[52] See id. at E-4.
[53] See id. at E-2 to E-3.
[54] 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).
[55] 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]).
[56] 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).
[57] 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).
[58] 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).
[59] 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”).
[60] See Ex. A-3.
[61] See Ex. C.
[62] See Ex. A.
[63] See, e.g., Application of a Student with a Disability, Appeal No. 21-138 at pp. 12-13 (Aug. 11, 2021) (reduction in 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]).