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NYSED # 569462 / NYC # 224173
FINDINGS OF FACT AND DECISION
Case Number: 224173
Student’s Name: [REDACTED]
School District: [REDACTED]
Impartial Hearing Officer: Richard J. Zeitler, Jr.
Date of Filing: 01/31/2022
Hearing Requested by: [REDACTED]
Date of Hearing: 05/04/2022
Record Close Date: 05/04/2022
Date of Decision: 05/25/2022
Names and Titles of Persons Who Appeared May 4, 2022
For the Student
[REDACTED], Parents’ Representative For the New York City Department of Education
[REDACTED], District Representative
BACKGROUND
On January 31, 2022, 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. 224173, 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 the DOE failed to implement the services described in the last IESP, developed on May 4, 2020,[2] leaving the Parents to implement the IESP and locate a provider of special education supported services (SETSS) on their own.[3] The Parents were unable to find a SETSS Provider willing to work with the Student at the DOE’s standard rate, and they now seek direct and/or prospective payment for the SETSS Provider they found, along with related services, as described in the IESP.[4]
PROCEDURAL ISTORY
I was appointed the impartial hearing officer (IHO) over this matter on March 28, 2022. On April 6, 2022, a pre-hearing conference was held. I issued a Pre-Hearing Conference Summary and Order, on April 15, 2022,[5] as well as two Orders of Extension, on April 15, 2022,[6] and then again on May 11, 2022.[7] The merits hearing was held before me on May 4, 2022, wherein all four of the Parent’s exhibited were admitted into evidence without objection.[8] The Department did not introduce exhibits.
FINDINGS OF FACT
At the hearing, the following was not in dispute. The Student is REDACTED years old and, for the 10-month 2021-2022 SY, is parentally placed in a Private School.[9] The Student is classified by the DOE’s Committee on Special Education (CSE) as a student with a Speech or Language Impairment.[10] The May 4, 2020, IESP specifies that the Student needs “small group literacy support” and “Language supports (expressive, receptive, articulation, social interactions),” through “SETSS in a group of not more than 3.”[11] It was also reported that he has delays “in the areas of Gross Motor skills,” specifically that his “walk is weak,” that he has “difficulty climbing stairs if he doesn’t feel well,” that he has “poor sitting and standing posture, [an] inability to tolerate circle time in [an] upright position,” and “poor motor planning and coordination.”[12] The CSE determined that the Student’s “articulation and language delays in addition to academic skills delays in literacy and math prevent him from consistently engaging and participating in group and social times as well as prevent him from making appropriate progress in the general education curriculum.”[13] Upon these findings, the following special education services were recommended: (1) four periods per week of SETSS, with direct service provided in a group in the [REDACTED] language, (2) two 30-minute sessions per week of physical 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 [REDACTED] language.[14]
The Department was offered an opportunity to present its case at the hearing, as to its burden to present evidence in support of its obligation to ensure the Student has been provided a FAPE. The Department’s Representative exercised the Department’s right to cross-examine the Parents’ witness and to present a closing statement, but the Representative chose not to present a case-in-chief, notwithstanding the Department’s burden with respect to FAPE.[15] The Department’s Representative also expressly did not dispute the Student’s services as described in the IESPs, noting, “We are, however, disagreeing to the enhanced rate.”[16] The Parents’ Representative was then offered an opportunity to present the Parent’s case. The representative relied upon the documents in evidence, including the DPC, the May 4, 2020, IESP, a printout from the NYS Dept. of Education Office of Teaching Initiatives that describes the SETSS Provider’s credentials, and an affidavit from the Student’s Parent that lists 16 SETSS providers the Parent contacted in an attempt to obtain SETSS for the Student.[17]
The Parents’ Representative called the SETSS Provider as their only witness, who testified as follows. She is employed by an agency as a special education teacher, but she works with the Student as an independent provider, administering SETSS to the Student from her home under an arrangement with the Parents. The Student is shy, does not articulate himself clearly, and is “very behind academically in the classroom.”[18] He is also undeveloped socially, which is why she provides the SETSS in her home, where she has found the one-to-one attention she provides him very helpful.[19] She provides services four times per week, and each session is one hour.[20] She tracks his progress by staying in touch with his general education teachers at his school and by measuring his mistakes while she instructs him.[21] For her services, the SETSS provider charges $150 per hour.[22]
On cross-examination, the provider explained how she calculated her rate, stating, “there was so, so much work going into” the Student because “he has very, vey many deficits. I needed to add a lot of work preparing, a lot of work speaking to the teachers at school,” and “I need the stuff they’re doing in school to carry over here” and “it’s just a lot, a lot, a lot, a lot of work that’s going into him, more than I typically have to do. But I’m doing it for him because he needs it.”[23] She consulted with the Student’s regular class teachers usually every week but sometimes biweekly.[24] She developed custom materials for use with the Student, including flash cards, social stories books, and an executive function board to help him concentrate on tasks.[25] She described the board thusly:
I created like a chart that we use for our sessions and it says on the top and it has little like Velcro with pictures of what we're going to be doing. So that helps him see what we're going to be doing. It gets in the frame of mind, helps him concentrate and be in control because he moves it when he's ready to start and then he moves it to, he moves it to a column that says ‘ready,’ when he's ready to start and when he finishes he can move it further. So that has helped him greatly organize himself and regulate while he starts to work... The name, I called it a Ready/Do/Done chart, because it has one column that says ‘ready,’ and then one ‘do,’ and one, ‘and done”... it’s amazing actually for him and especially for anyone that [has] executive functioning delays.[26]
When asked which language the services were given, the SETSS Provider answered, “I would say English and some [REDACTED].”[27] She did not have the “bilingual extension” for her teaching certificate, but she took an exam called the “Baya test” that she said, “should make you somewhat bilingual, but I’m not totally sure.”[28] The SETSS provider believed she began teaching the Student around September 23, 2021.[29] The Student’s mother knew she was a SETSS provider, and she entered into an agreement with the Student’s Parents over the telephone after the mother reached out to her.[30]
In closing, the Department’s Representative argued as follows. The Department objects to an enhanced rate of $150 per hour. There was no substantial explanation for that rate. At four hours per week, the SETSS Provider is charging $600 for a week of service. This provider did not have the bilingual extension on her certification. She testified that she teaches the Student mainly in English, despite the CSE determination in the IESP that SETSS services be provided in [REDACTED]. Finally, there is no signed contract.[31]
In closing, the Parent’s Representative contended the following. The CSC failed to create an IESP for the Student’s current school year, and they did not provide a SETSS teacher, both of which violated the Student’s right to a FAPE. The Parents obtained the SETSS Provider after numerous attempts, and the provider charges $150 per hour. The provider is paid only for time spent with the Student, yet she also creates her materials, is in contact with the school and the parents on a regular basis, and constantly makes adjustments so that he can function well in the classroom. Given the amount of work and time the SETSS Provider puts into helping the Student, the rate should be deemed appropriate.[32]
I find, having reviewed the entire record, including all the evidence admitted at the hearing, that the testimony of the SETSS Provider is credible. It was detailed, comprehensive, and consistent with the record and the allegations in the due process complaint. I note further that the DOE offered no evidence to challenge the veracity of this witness. 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.[33] 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.[34]
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.[35] Instead, the IDEA requires school districts to participate in a consultation process for making special education services available to students in nonpublic schools,[36] 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.[37] “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.”[38] In New York, “Boards of education... shall furnish services to students [with disabilities] 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.”[39] 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.[40] 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.”[41] 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.”[42]
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.[43] 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.[44] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act,”[45] and damage awards are not available under the IDEA.[46] 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.”[47]
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.[48] 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 May 4, 2020,[49] and the Department offered no explanation as to why a newer IESP had not yet been developed. In addition, the Department offered no evidence that it took any action to implement the IESP, instead leaving it to the Parents to contact and obtain a SETSS provider on their own.[50] Despite her best efforts, the Student’s mother was unable to locate a “SETSS provider willing to work with the [S]tudent at the DOE’s antiquated rate of approximately $41.98 per hour[.]”[51] 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,”[52] and a violation of State law.[53] “[B]ecause the district was not authorized to contract for the provision of an independent special education teacher,”[54] the DOE failed to implement the IESP, which constitutes a denial of FAPE.[55]
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.”[56] 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.”[57] The evidence therefore must show that the SETSS Provider’s rate is reasonable and appropriate under the circumstances, The record before me includes evidence that the Student has been provided SETSS four hours per week at the provider’s home, per her agreement with the Parents.[58] The SETSS Provider works independently for the Parents, and she described very comprehensive and labor-intensive 1:1 specialized instruction she administers to the Student, explaining that there is “a lot of work that’s going into him” that she does “because he needs it.”[59] This is supported by the record. In the IESP, the description of the Student’s speech and language impairment including that his “speech is unintelligible,” that “[o]thers cannot understand him at all,” that “he can sometimes give clear answers with two word, but any response longer than two words is very difficult to understand.”[60] The SETSS Provider explained how she administered her services at her home because “he’s not doing well socially so that’s why getting help in school would be more like embarrassing for him.”[61] This was also echoed in the IESP, where it notes, “In the classroom, he is very fearful” and, “His comfort level is greater outside the classroom.”[62]
Notwithstanding these constraints, the SETSS Provider devised creative strategies to instruct the Student in a suitable environment and with custom materials she developed specifically for him, e.g., the “Ready/Do/Done” board to assist his executive functioning skills while she worked with him to address his speech and language impairments. She explained how all of this translated into an inordinate amount of preparation time before his SETSS could be administered, and she performed this work as an independent provider. All of these factors weigh in favor of a rate higher than that normally offered by the Department. I note that $150 per hour is not per se unreasonable, as the State’s administrative appellate tribunal has approved rates of $150 per hour, [63] $175 per hour,[64] and even $200 per hour.[65]
There are, however, also factors that weigh against granting the rate requested by the Parents. The printout from the NYS Dept. of Education Office of Teaching Initiatives lists her credentials in “Students with Disabilities (Birth – Grade 2)” as a “Transitional B Certificate” that is expired, with no indication that it was renewed or modified. It is not clear from this record that holding an expired Transitional “B” Certificate is sufficient qualification for providing the type of special education given to the Student. While SETSS providers need not necessarily be State-certified,[66] 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.[67] The provider also did not fully explain why she taught the Student mostly in English, notwithstanding that the IESP called for instruction in [REDACTED]. In addition, the SETSS Provider did not produce progress reports, or testify that any were generated, so there is no evidence that any of her work was reviewed or assessed.[68]
The factors weighing against an enhance rate convince me that the SETSS should not be paid at the rate requested by the Parents. That said, the sheer amount of work the SETSS Provider put into helping the Student learn, and the meaningful opportunity for progress resulting from those efforts, all weigh in favor of some enhancement to the rate notwithstanding. Thus, in consideration of all the factors and circumstances, I deem the outcome most “appropriate in light of the purpose of the [Individuals with Disabilities in Education] Act”[69] to be an enhanced SETSS rate that is equal to double the Department’s standard rate for the provision of SETSS. In making this determination, I also note that the Department offered nothing to rebut the Parent’s evidence supporting the provider’s rate, and that but for the Parents having located a SETSS provider on their own, 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 an enhanced rate.
There is one further limitation that must be placed upon the award in this case. In the due process complaint, the Parent requests that DOE fund the program outlined in the IESP for the entire 2021-2022 school year.”[70] The DPC, however, is dated January 31, 2022,[71] and it does not describe why or how notice that an enhanced SETSS rate would be sought could not have been submitted to the Department before January 31, 2022. 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. Filing the DPC before January 31, 2022 would have given the Department an opportunity to rectify the deficiencies described in that document earlier. Equitable considerations allow for an award to be reduced when there is a lack of notice.[72] 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 January 31, 2022. 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 administered to date and that will be administered to the Student during the 10-month 2021-2022 school year, less any amounts paid under pendency, for services provided up to and including January 31, 2021, at the Department’s standard rate, and for SETSS services provided on February 1, 2022 and thereafter, at a rate equal to double the Department’s standard rate, 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, to the extent documentation is submitted to show that they have also been provided.
So Ordered.
Richard J. Zeitler, Jr. Dated: May 25, 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
01/31/2022
4
B.
Individualized Educational Services Program (IESP)
05/04/2020
13
C.
Service Providers’ Credential
Undated
2
D.
Parent’s Affidavit
01/12/2022
1
IHO EVIDENCE
Exhibit
Title
Date
Pages
I.
Pre-Hearing Conference Summary and Order
04/15/2022
2
II.
Order of Extension
04/15/2022
1
III.
Order of Extension 2
05/11/2022
1
Footnotes
[1] See Ex. A.
[2] See Ex. A-2.
[3] See id.
[4] See id. The DPC also requests pendency for the Student’s services described in the IESP for the duration of this matter. At the Pre-Hearing Conference, however, the parties informed me that they would attempt to negotiate and stipulate to pendency on their own, and that they would seek my intervention only if they were unsuccessful. See IHO Ex. I. Neither party has raised pendency since, including at the hearing, and it will not be addressed in this decision.
[5] See IHO Ex. I.
[6] See IHO Ex. II.
[7] See IHO Ex. III.
[8] See Exs. A through D. The Department did not present any exhibits.
[9] See Ex. A.
[10] See Ex. B-1.
[11] Id. at B-5.
[12] Id.
[13] See id. at B-6.
[14] See id. at B-10.
[15] See Hearing Transcript (Tr.) at pp. 6:20 through 7:15.
[16] See id. at pg. 7:9-10.
[17] See Exs. A through D, respectively. Ex. D includes the provider who was eventually hired and who testified at the hearing.
[18] Tr. at pg. 13:1-11
[19] See id. at pg. 13:11-16.
[20] See id. at pp. 14:24 through 15:2.
[21] See id. at pp. 15:9 through 16:4.
[22] See id. at pg. 16:5-7 and 16:17-19.
[23] See id. at pp. 18:23 through 19:20.
[24] See id. at pg. 21:6-11.
[25] See id. at pp. 26:10 through 28:10.
[26] See id. at pp. 27:5 through 28:10 (internal quotations supplied).
[27] Id. at pg. 22:7-8.
[28] See id. at pp. 22:9 through 23:10; she added, “I took it in [REDACTED], that’s the other language I would have spoken to him had I wanted to teach him [REDACTED], but I don’t.” Id. at pg. 23:16-18. I read this literally, to mean that she was mentioning in passing that she did not teach the Student [REDACTED], and I do not take it to mean that chose not to teach the Student in [REDACTED].
[29] See id. at pp. 23:25 through 24:16.
[30] See id. at pp. 25:3 through 26:7.
[31] See id. at pp. 30:12 through 31:9.
[32] See id. at pp. 31:13 through 32:10.
[33] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[34] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[35] See 34 C.F.R. § 300.137(a)
[36] See 34 C.F.R. § 300.134.
[37] 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.
[38] 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)).
[39] N.Y. Educ. Law § 3602-c(2)(a).
[40] 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.
[41] 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).
[42] Id.
[43] 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).
[44] 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]).
[45] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[46] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[47] See Doe v. East Lyme, 790 F.3d at 454.
[48] 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).
[49] See Ex. B.
[50] See Exs. A-2 and D.
[51] Ex. A-2.
[52] See Application of a Student with a Disability, Appeal No. 21-068 at pg. 9 (April 21, 2021) at pg. 9.
[53] 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.
[54] See Application of a Student with a Disability, Appeal No. 20-140, at pg. 12 (Sept. 23, 2020).
[55] See Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
[56] See Application of a Student with a Disability, Appeal No. 20-115 (Sept. 3, 2020) at pg. 9.
[57] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[58] It is not clear whether related services have been provided at the Student’s private mainstream school during the 2021-2022 school year, at least with respect to physical therapy, as the SETSS Provider has not spoken with the Student’s physical therapist. See Tr. at pp. 28:18 through 29:9.
[59] See id. at pp. 18:23 through 19:20.
[60] Ex. B-1.
[61] Tr. at pg. 13:13-15.
[62] Ex. B-1.
[63] See 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. 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).
[64] 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]).
[65] 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).
[66] See Application of a Student with a Disability, Appeal No. 12-125 (Dec. 12, 2013).
[67] See Application of a Student with a Disability, Appeal No. 20-140 (Dec. 12, 2013).
[68] I note here that I do not find the agreement between the SETSS Provider and the Parents a negative factor even though it was made over the telephone. The Department offered no authority in support of its argument that an oral contract must rejected. While the evidence here “demonstrates how difficult it can be prove an oral contract (even if one is permissible in this context) that shows the contract’s essential terms – namely, the educational services to be provided and the amount” charged by the provider, Application of a Student with a Disability, Appeal No. 20-115 at pg. 10 (Sept. 3, 2020) (internal citation omitted), I still find that the agreement here was enforceable, as the SETSS Provider testified she spoke with the Student’s mother on the phone about the services she would administer and the rate the Parent’s would be charged. When asked directly what type of agreement she had with the Parents, the SETSS Provider testified, “What, how they’re going to pay?” She then explained that this was discussed on the phone. See Tr. at pg. 25:18-25. I find that in this testimony, the SETSS Provider was specifically obligating the Parents to pay the $150 rate she described earlier in her testimony. See Tr. at pg. 16:17-19.
[69] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citing Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359, 369, 105 S.Ct. 1996 (1985)).
[70] See Ex. A-3.
[71] See Ex. A. The Parents’ Representative also acknowledged that there is no evidence of the Department having been notified of the Parent’s intent to seek an enhanced rate before January 31, 2022. See Tr. at pg. 32:11-18.
[72] 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]).