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NYSED # 575238 / NYC # 228023
FINDINGS OF FACT AND DECISION
Case Number: [REDACTED]
Student’s Name: [REDACTED]
School District: NYC Dept. of Ed., District # [REDACTED]
Impartial Hearing Officer: Richard J. Zeitler, Jr.
Date of Filing: 07/01/2022
Hearing Requested by: Parent
Date of Hearing: [REDACTED]
Record Close Date: 09/01/2022
Date of Decision: 09/14/2022
Names and Titles of Persons Who Appeared August 30, 2022
For the Student
[REDACTED], Esq.
[REDACTED], Parent
For the New York City Department of Education
[REDACTED], Esq.
Background
On July 1, 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),[1] on behalf of the Student, under Case No. 228023, pursuant to the Individuals with Disabilities Education Act (IDEA or the Act),[2] and the New York State Education Law.[3] The DPC asserts that the Student was denied a free and appropriate public education (FAPE) in that, for the 2022-2023 school year, the Department has failed to provide the Student with 12-month, at-home, one-to-one (1:1) special education teacher support services (SETSS), administered using applied behavior analysis (ABA) methodology, as the Student had been receiving for years, and as recommended in both the Student’s most recent individualized education program (IEP) and in the last neuropsychological evaluation.[4] The DPC further alleges that, in anticipation of the 2022-2023 school year, the Parent attempted but was unable to find a qualified at-home SETSS provider that could provide the services mandated in the IEP at the standard rate paid by the DOE, and now requests that the Department fund the cost of SETSS for the 2022-2023 school year at an enhanced rate.[5] The DPC also raised the issue of pendency, discussed below.
Procedural History
I was appointed the impartial hearing officer (IHO) over this matter on July 13, 2022. On August 3, 2022, a pre-hearing conference was held, and on August 17, 2022, I issued a Pre-Hearing Conference Summary and Order.[6] An interim hearing was held on the issues of pendency and an independent educational evaluation (IEE) on August 18, 2022, and I issued an Interim Order that resolved both issues on August 28, 2022.[7] I also issued a Scheduling Order on August 24, 2022.[8] The merits hearing was held before me on [REDACTED], wherein all of the Parent’s exhibits were admitted into evidence without objection.[9] The Department presented no exhibits or witnesses, while the Parent testified via affidavit but also appeared for cross-examination and further questioning. This decision now follows.
Findings of Fact
At the hearing, the following was not in dispute. The Student is REDACTED years old and is entering 11th grade at the Public School for the 2022-2023 school year.[10] The Student’s IEP, last developed on November 24, 2021, classifies him with a Speech or Language Impairment,[11] and recommended, inter alia, “SETSS... ABA Methodology... Direct Service... Individual service... 15 time(s) per week... [Duration] period... [Location] Separate Location home based[.]”[12] The Parent attended the IEP meeting, informed the team that she could not find a provider who would accept the Department’s standard rate, and was told that including SETSS payment at a higher rate could not be made part of the IEP.[13]
The Parent does not recall the DOE offering her son a SETSS provider for the 2022-2023 school year.[14] She therefore contacted SETSS Provider 1 and SETSS Provider 2, who have administered SETSS services to the Student in the past, and who agreed to provide the services for a combined 15 hours per week for the 12-month 2022-2023 school year.[15] She cannot afford the services on her own, and the Student would not be able to get them if the Department were not ordered to pay the providers directly.[16]
SETSS Provider 1 has two masters degrees, a Doctorate, a certificate in ABA, and four Professional Teaching Certificates, in Early Childhood Education (age 0-2), Students with disabilities (age 0-2), Childhood Education (grades 1-6), and Students with Disabilities (grades 1-6).[17] She is an adjunct graduate-level college professor, in the areas of research and practice with respect to educating students with disabilities, and has been a provider of special education services to students within the New York City Department of Education for at least nine years.[18] She is also an independent SETSS provider with the DOE, and applies ABA methodology when administering services.[19]
SETSS Provider 1 has worked with the Student since October of 2019.[20] She administers eight hours per week of the Student’s SETSS services, and has found that he “requires a significant level of individual support in order to make academic progress” and that without such support, he “is far below grade level in reading, writing, and math.”[21] Notwithstanding this, the Student has shown progress in reading with prompting and other support, and has shown improvement in completing basic math skills.[22] He “is a visual learner” and a “high level of prompts and supports are needed for him to learn grade level material.”[23] He shows “regression in his academic and expressive language skills” after one week or more away from school.[24] SETSS Provider 1 has regular consultations with SETSS Provider 2, and she reports that the techniques and results explained to her by SETSS Provider 2 are “consistent with the progress that I have observed during my sessions with” the Student.[25] She also noted that she used to charge $125 per hour for her SETSS services, but that both she and SETSS Provider 2 now charged $150 per hour, which is more in line with market rates in the New York City area, “for similar services by a provider with credentials similar to my own.”[26]
SETSS Provider 2 has a master’s degree in teaching special education, and has been a classroom teacher since 2012, and teaching students with special needs since at least 2016.[27] She administers seven hours per week of SETSS to the Student, and has worked with him since July of 2021.[28] SETSS Provider 2 applies similar techniques to SETSS Provider 1 when working with the Student, and has observed progress similar to that described by SETSS Provider 1.[29]
The parties did not offer closing statements. With respect to credibility, I find as follows. The evidence the Parent offered into evidence, including the witness and the expert reports of the SETSS providers, were detailed, comprehensive, and consistent with the allegations in the due process complaint. Moreover, the Department offered nothing to challenge any statements in the documents, or the veracity of the witness. I therefore find everything offered by the Parent credible. The weight afforded to each cited piece of evidence will be reflected in the analysis.
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.[30] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”).[31] When an IEP is developed in New York City, a FAPE requires the DOE to both comply with the procedural requirements set forth in the IDEA, and that its recommended placement and program are reasonably calculated to enable the student to receive educational benefits.[32]
If a procedural violation is alleged, courts and IHOs may find that a student did not receive a FAPE if the procedural inadequacies: (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits.[33] In general, however, the decision should be determined on substantive FAPE grounds,[34] that is, whether the school district “provid[ed] personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”[35]
If a dispute arises between a parent and a school district over the provision of services under an IEP, “[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.[36] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act,”[37] and that damage awards are not available under the IDEA.[38] An IHO “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[39]
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 where tuition reimbursement is sought, the parent has the burden of proof with respect to the appropriateness of the parent’s chosen educational placement.[40] I must determine whether the Department met its burden to demonstrate that the subject IEP was reasonably calculated and implemented to provide this Student with educational benefits.
The last agreed upon IEP was developed on November 24, 2021, and there is no dispute that the Department recommended – and the Parent agreed – that the Student should receive “SETSS” with “ABA Methodology” as a “home based” and “[i]ndividual service” at a frequency of “15 time(s) per week [.]”[41] The Department offered no evidence that it assigned or otherwise offered the Parent a SETSS provider for the Student’s at-home SETSS, and it did not dispute the Parent’s testimony that she had not been contacted to set up such a provider.
The Department is responsible for implementing the programs it recommends in IEPs, and it has been held that the Department may not effectively compel the Parent to resort to self-help in obtaining a SETSS provider.[42] Such a “de facto delegation from the district to the parent of the obligation to find a SETSS provider... at an acceptable rate is manifestly unreasonable,”[43] and a violation of State law.[44] The DOE thus failed to implement the IEP, which constitutes a denial of FAPE.[45]
As to the remedy, however, the inquiry has not ended. Although the Department chose to not present a case, “an outright default judgment awarding any and all of the relief requested without question is a disfavored outcome.”[46] This is so “even where the district’s conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious.”[47] Moreover, the State Review Office (SRO) has held that when the parent has not already paid the SETSS provider, and seeks direct funding rather than reimbursement, the “matter is in a subset of more complicated cases in which the financial injury to the parent and the appropriate remedy are less clear.[48] Because the Parent had to find the provider on her own and because “caselaw supports reimbursement and direct remedies in a unilateral placement case,” the SRO has determined that the question of whether a SETSS provider should be directly paid is somewhat similar to the Burlington/Carter framework, which “forecloses any complete disavowal of the parent’s burden of production and persuasion related to the private, unilateral services obtained by the parent.”[49] Thus, in a case such as this, where the central issue is whether a third-party SETSS provider selected by a 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 and equitable authority to ensure that the remedy “be appropriate in light of the purpose of the Act.”[50] The evidence therefore must show that the SETSS providers’ rates are reasonable and appropriate under the circumstances.
Both of the SETTS providers worked with the Student before the 2022-2023 school year, and have worked with him in a home-based program. Provider 1 charged $125 per hour for almost eight years, and has raised her rate to $150 per hour for the new school year, which she states is more in line with market rates in the New York City area, “for similar services by a provider with credentials similar to my own.”[51] She noted that Provider 2 charges the same rate.[52]
Depending on the circumstances of a student’s needs and the qualifications and specialty of the provider, rates of $150 per hour, [53] $175 per hour,[54] and even $200 per hour have been upheld,[55] so I do not find the rate requested per se unreasonable. The cases have also held, however, that while “[g]enerally, teachers at a unilateral placement need not be State-certified... there must be objective evidence of special education instruction or supports that are specially designed by... providers... who have reasonable qualifications that are specifically related to the student’s deficits.”[56] For example, in a case where a teacher who had a special education teaching certificate but not for the grade-level of her student, it was held that her qualifications were sufficient because she had a master’s degree in special education and had taken the exam for certification in the grade level of the student but had not yet received the results.[57]
Here, SETSS Provider 1 has two Masters Degrees, a Doctorate degree, a certificate in ABA, and certificates for students with disabilities ages birth through 2 years old, and 1st grade through 6th grade.[58] It does not work in her favor that she is not State-certified in high-school level students with disabilities; however, given her advanced degrees, plus that she is an adjunct graduate-level college professor teaching topics that include educating students with disabilities, and that she applies the very ABA methodology with the Student that is called for in the IEP,[59] I find that “although [this] teacher was not certified for the particular grade the student was in, she was a certified special education teacher and was qualified, if not certified, to provide SETSS.”[60]
As to SETSS Provider 2, she likewise has an advanced degree, in teaching special education, and has been teaching special education students in classrooms since 2016,[61] and has worked with the Student in the past.[62] Nothing in the record, however, demonstrates what special education certificates SETSS Provider 2 has obtained, which is odd, given that her resume states she has “[a]dministered differentiated lesson plans... [for] students at dissimilar developmental levels” when she was a “Grade 2 Classroom Teacher” and that she “[a]dapted the lesson plans to serve the needs of two students with a speech and language impairment” and “train[ed]... colleagues on working effectively with special needs students” when she was a “Grade 3 Classroom Teacher” and that she “[c]onducted Functional Behavior Assessments” and worked with three students with Autism as a “Special Education Teacher Intern[.]”[63] On this record, and under my equitable authority, I therefore find that SETSS Provider 2 has sufficient qualifications to provide SETSS and to command a rate higher than the Department’s standard rate, but not at the same rate as SETSS Provider 1, who testified that $150 per hour was now customary for providers “with credentials similar to [hers,]”[64] which, on this record, are more substantial that Provider 2’s. Without more proof of Provider 2’s specific certification or certifications, I find that it is not warranted to fund her services at more than $100 per hour.
I am also mindful that the equitable remedy claimed in this matter is a form of compensatory education to the Parent and not to the SETSS providers.[65] The Department should only be responsible for payment if the Parent demonstrates that she either already paid the SETSS providers, or that she was liable to pay the providers even if the District was not ordered to pay for services.[66] Here, the Parent offered no evidence of an express or implied contract with either provider, and when specifically asked about her obligation to the providers if the Department were not ordered to fund them directly, her answer was only that the Student would no longer receive the services because she could not afford them.[67] This may be the case, but it is not proof of an oral agreement of any kind, let alone one that recognizes her responsibility to cover the cost of SETSS services already provided for this 12-month school year, or services still to be provided. When “there is no proof of any agreement, either written or oral, between the parent and the” provider showing “that the parent was responsible for the costs of the SETSS service... the parent’s request... that the services should be funded at the [provider’s] rate... must be denied.”[68] The Department is nevertheless obligated to provide SETSS and to pay its cost. To hold otherwise would countenance DOE’s actions in denying the Student a FAPE. As pendency has been provided in this matter, I will therefore set the rate the Department must pay at no more than the rate ordered with pendency – $125 per hour.[69] This rate shall apply to SETSS Provider 1, and the $100 per hour rate shall apply for SETSS Provider 2, consistent with my above findings.
Decision and Order
It is hereby ordered, that the New York City Department of Education shall pay the two SETSS providers for the administration of at-home, ABA methodology SETSS Services, at no more than 15 hours per week combined, for the 12-month 2022-2023 school year, less any amounts paid under pendency, at a rate of $125 per hour for services provided by SETSS Provider 1, and at a rate of $100 per hour for services provided by SETSS Provider 2, with such payment to be made within thirty (30) days of each 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 12-month 2022-2023 school year.
So Ordered.
Dated: September 14, 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.
Impartial Hearing Request
07/01/2022
7
B.
Individualized Educational Program (IEP)
11/24/2021
29
C.
Findings of Fact and Decision
04/02/2022
13
D.
CV of Dr. [REDACTED]
N/A
9
E.
Progress Report by Dr. [REDACTED]
08/22/2022
4
F.
Progress Report by [REDACTED]
08/22/2022
2
G.
Curriculum Vitae of Dr. [REDACTED]
(undated)
6
H.
Curriculum Vitae of [REDACTED]
(undated)
2
I.
Affidavit of Testimony of Dr. [REDACTED]
08/26/2022
5
J.
Affidavit of Testimony of [REDACTED]
(undated)
2
IHO EVIDENCE
Exhibit
Title
Date
Pages
I.
Pre-Hearing Conference Summary and Order
08/17/2022
3
II.
Interim Order on Pendency and IEE
08/28/2022
9
III.
Scheduling Order
08/24/2022
2
Footnotes
[1] See Ex. A-1.
[2] See 20 U.S.C. § 1415(f).
[3] See Educ. Law §§ 4404(1) et seq.
[4] See id. at A-1 through A-3.
[5] See id. at A-4 and A-6. The DPC also requests that the Department “[f]und any other services... necessary for [the Student] to obtain any of the related services” in the IEP; that the Department “[f]und an independent neuropsychological evaluation”; that the Department “[c]onvene an IEP meeting and create an appropriate IEP within sixty (60) days”; and that the Department “[f]und compensatory services[.]” The Parent withdrew all of these claims at the beginning of the hearing, except for the independent neuropsychological evaluation request; however, that issue was resolved in my August 28, 2022 Interim Order (see IHO Ex. II) and is thus moot.
[6] See IHO Ex. I.
[7] See IHO Ex. II.
[8] See IHO Ex. III.
[9] See Exs. A through J.
[10] See Ex. A-2; see also Ex. J ¶ 2.
[11] See Ex. B-1 and B-28.
[12] See id. at B-22.
[13] See Ex. J ¶ 3.
[14] See id. ¶ 4.
[15] See id. ¶ 5.
[16] See Tr. at pp. 18 to 19.
[17] See Ex. G-1; see also Ex. I ¶ 1.
[18] See Ex. G-1 to G-2.
[19] See Ex. I ¶ 2.
[20] See id. ¶ 5.
[21] See id. ¶¶ 6 and 7.
[22] See Ex. E-2 to E-3.
[23] Id. at E-3.
[24] Id.
[25] Ex. I ¶ 16.
[26] Id. ¶ 18.
[27] See Ex. H-1 to H-2.
[28] See Ex. F-1.
[29] See id. at F-1 to F-2.
[30] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[31] C.F.R. § 300.13.
[32] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[33] U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
[34] U.S.C. § 1415(f)(3)(E)i).
[35] Rowley, 458 U.S. at 203.
[36] U.S.C. §§ 1221e-3, 1415(e)-(f); see also Education Law § 4404(1); 34 CFR §§ 300.151- 300.152; 8 NYCRR §§ 200.5(h)-(l).
[37] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[38] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[39] See East Lyme Bd. of Educ., 790 F.3d at 454.
[40] 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).
[41] See Ex. B-22.
[42] See, e.g., Application of a Student with a Disability, Appeal No. 21-068.
[43] Id.
[44] See Application of a Student with a Disability, Appeal No. 20-115 (“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.
[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. 22-054 (June 22, 2022) at pg. 3 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]).
[47] Application of a Student with a Disability, Appeal No. 22-004.
[48] Application of a Student with a Disability, Appeal No. 20-115 (citing E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 [2d Cir. 2014] [holding that equitable considerations allow for direct payment for tuition where the parents were legally obligated to make payments but had not done so due to a lack of financial resources]).
[49] Id.
[50] East Lyme Bd. of Educ., 790 F.3d at 454 (citation omitted).
[51] Id. ¶ 18.
[52] Id.
[53] 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).
[54] 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]).
[55] 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).
[56] Application of a Student with a Disability, Appeal No. 20-140.
[57] See id.
[58] See Ex. G-1 to G-2.
[59] See Ex. I ¶ 2.
[60] Application of a Student with a Disability, Appeal No. 20-140.
[61] See Ex. H-1 to H-2.
[62] See Ex. F-1.
[63] Ex. H-1 to H-2.
[64] Id. ¶ 18.
[65] 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).
[66] See Application of a Student with a Disability, Appeal No. 21-068 (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).
[67] See Tr. at pp. 18 to 19.
[68] See Application of a Student with a Disability, Appeal No. 20-140.
[69] See id.