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CASE NUMBER: 584245 - NYC: 235882
CASE NUMBER: 235882
FINDINGS OF FACT AND DECISION
Case Number: 235882
Student’s Name: REDACTED REDACTED
School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: September 8, 2022
Date(s) of Hearing: November 3, 2022
November 16, 2022
December 22, 2022
January 24, 2023
Actual Record Closed Date: February 1, 2023
Date of Decision: February 12, 2023
Date of Distribution if Different than Decision Date: N/A
Hearing Officer: Jean Marie Brescia, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON November 3, 2022
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
REDACTED REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON November 16, 2022
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
REDACTED REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON December 22, 2022
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
REDACTED REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON January 24, 2023
For the Student:
REDACTED REDACTED, Esq.
Raizy REDACTED, Parent
REDACTED REDACTED, Supervisor
For the Department of Education:
REDACTED REDACTED, District Representative
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint filed on or about September 8, 2022. Ex. A.[1] On October 25, 2022, I was appointed by the New York City Department of Education to hear this matter. Parent alleges that the Department failed to provide equitable services mandated by an Individualized Special Education Services Plan (“IESP”) for REDACTED for the 2022-2023 and seeks funding for SETSS and related services for REDACTED at the provider’s “prevailing rate.” Ex. A at 3.
I conducted a prehearing conference on November 3, 2022. Counsel for REDACTED’s parents appeared; a District Representative appeared on behalf of the Department. Tr. 2. At the prehearing conference, counsel for REDACTED’s parents clarified the relief requested, pendency was discussed, and a hearing date was scheduled for November 16, 2022. Tr. 6-7.
On November 16, counsel for REDACTED’s parents appeared; and the District Representative appeared on behalf of the Department. A pendency hearing was conducted at the request of Parent’s counsel, and exhibits A through C were admitted in evidence. The hearing on the merits was scheduled for December 22.
The hearing proceeded on December 22 with the Department “reserving” its opening statement and indicating that it would not be presenting the testimony of witnesses. Tr. 22-23. Parent’s counsel presented an opening statement.
The hearing was completed on January 24, 2023. The District Representative presented a brief opening statement and then rested the Department’s case. Tr. 33-34. REDACTED’s parent testified, as did the individual who supervises the SETSS that REDACTED is receiving; exhibits D through G were admitted in evidence.
The parties requested extensions of the compliance date, and written Orders of Extension was issued on November 3, December 22, 2022, and January 24, 2023. The reasons for granting the extensions are set forth in the Orders.
The record was closed on February 1, 2023, upon the Hearing Officer’s receipt and review of the transcript of the final day of the hearing.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
ISSUES
REDACTED’s parents seek funding for SETTS that they obtained for REDACTED, who is parentally-placed in a non-public school. At the hearing, the Department did not present evidence as to its provision of IESP services to REDACTED to for the 2022-2023 school year. The issues to be resolved are therefore:
What services is the Department responsible for providing to REDACTED as per the Department’s IESP?
Did the Department provide such services?
Should the Department be required to fund the services that REDACTED’s parents secured for REDACTED?
Does the balance of the equities favor REDACTED’s parents?
FINDINGS OF FACT
REDACTED is an REDACTED year-old boy whose disability, for the purposes of the IDEA, is classified as learning disabled. He attends a general education program Yeshiva Machzikei Hadas Belz, a non-public religious school. Exs. A, B at 1-2, C.
REDACTED experiences challenges with respect to attention, comprehension, and academics. He is below grade level in reading decoding and comprehension and in math. Exs. B at 2-4, D at ⁋ 2.
The Department’s CSE developed an IESP for REDACTED at a meeting conducted on August 24, 2021. Ex. B.
The CSE recommended that REDACTED receive SETSS, seven periods per week as a direct group service in REDACTED and two periods per week as a direct individual service in REDACTED. Ex. B at 9.
REDACTED’s mother made many phone calls to the SETSS providers included on the Department’s list of approved SETSS providers; none of the providers were available to work with REDACTED at the Department’s standard rate. Ex. D at ⁋ 4; Tr. 60-61.
REDACTED’s mother contacted an agency, REDACTED REDACTED, to provide SETSS to REDACTED. Ex. D at ⁋ 5.
REDACTED’s mother signed a contract with REDACTED REDACTED to provide SETSS to REDACTED for the 2022-2023 school year. Exs. D at ⁋ 8, F. The contract obligates REDACTED’s mother to pay for SETSS provided to REDACTED by REDACTED REDACTED. Ex. F.
The contract does not specify the cost of the services; REDACTED’s mother had an understanding that REDACTED REDACTED would be charging $195 per hour for SETSS. Ex. F; Tr. 63, 66..
REDACTED REDACTED has provided seven hours per week of SETTS to REDACTED during the 2022-2023 school year. Exs. D at ⁋ 7, E at ⁋ 9.
The services are provided at a certified special education teacher who is a bilingual REDACTED provider. Exs. E at ⁋ 10, G; Tr. 42.
The services are provided at REDACTED’s general education school during the morning hours of secular instruction. Ex. E at ⁋ 13; Tr. 43.
REDACTED REDACTED charges $195.00 per hour for SETSS. Ex. E at ⁋ 5.
According to its supervisor of special education services, who is a certified special education teacher, REDACTED REDACTED SETSS rate includes the costs of supervision of the provider, professional development, employment taxes, administrative costs and “overhead.” Ex. E at ⁋⁋ 2-3, 6-7; Tr. 48-49.
During the 2022-2023 school year to date, REDACTED has improved his reading decoding and math computation and concepts. Tr. 44, 64.
On September 2, 2022, REDACTED’s parents, through counsel, submitted a ten-day notice to the Department. They informed the Department that they had been unable to locate a SETSS providers who was willing the accept the Department’s “standard rate” and that they would be seeking reimbursement or direct payment from the Department for SETSS services that they would secure for REDACTED. Ex. C.
According to REDACTED’s mother, paying “up front” for the SETSS provided by REDACTED REDACTED would “pose extreme financial hardship” for the family, as a “typical middle income family,” and she would need to seek “outside financial support from friends and family.” Ex. D at ⁋ 9; Tr. 63.
CONCLUSIONS OF LAW
The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012); Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).
A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. REDACTED F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).
The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v).
In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.
In the instant case, I must also consider that REDACTED is a “dually-enrolled” student, and, under New York State Education Law § 3602-c, parents of students with disabilities have the right and ability to select a nonpublic school willing to enroll their child, and places the burden of developing and providing appropriate special education programming upon the school district in which such school is located. The school district must develop an appropriate program for the student in the environment in which the student will receive his or her education (i.e. – the nonpublic school). Section 3602-c expressly states that a school district of location’s CSE “shall develop an [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an [IEP].” Education Law § 3602-c(2)(b)(1). “The committee on special education shall assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.” Id. See, e.g., Application of a Student with a Disability, Appeal No. 21-245 at pp. 10-18 (description of districts’ responsibilities under § 3602-c and interplay with IDEA); see also Application of a Student with a Disability, Office of State Review No. 20-094; Application of a Student with a Disability, Office of State Review No. 20-087. See also Bd. of Educ. of the Bayshore Union Free Sch. Dist. v. Thomas K., 14 N.Y. 3d 289 (2010) (relevance of individualized educational needs of dually-enrolled students).
It is undisputed in this proceeding that the Department did not provide REDACTED with the IESP’s mandated complement of SETSS during the 2022-2023 school year. Since the Department was required by Education Law § 3602-c to provide such services, and failed to do so, I must consider whether the Department should be required, at this time, to provide funding for services that REDACTED’s parents secured through REDACTED REDACTED. I am also called upon to determine whether the Department should be required to pay a specific rate for REDACTED Resource’s SETSS delivered to REDACTED.
As in SRO No. 21-245, a Burlington/Carter analysis is both an appropriate and a practical manner in which to approach and consider this case. See Florence County School District v. Carter, 510 U.S. 7 (1993); School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). Under such an analysis, a board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). Since the Department failed to provide the IESP-mandated services for REDACTED, and REDACTED’s parent was left to her own devices to find a provider for such services, the Department should be required to pay for the services that it was otherwise required, yet failed, to provide to REDACTED.
Under a Burlington/Carter analysis, services which are determined as reimbursable or fundable are fully reimbursed or funded by the school district “unless, as a matter of equitable considerations, the costs sought to be reimbursed are excessive or otherwise should be reduced, or, in the case of direct funding, the parent has not demonstrated a legal obligation to pay the cost and an inability to do so.” SRO No. 21-245 at p. 17 (emphasis added). In short, there must be proof of parents’ legal obligation to pay for services provided to their child. Id. at pp. 17-18. See also, e.g., D.A. v. New York City Dept. of Educ., 769 F Supp. 2d 403, 430 (S.D.N.Y. 2011).
In the instant matter, the contract that REDACTED’s parent entered into with REDACTED REDACTED obligated her to pay for SETSS provided to REDACTED. While the contract did not set forth a specific hourly rate for the services, REDACTED’s mother testified that she understood what the rate was. As to that rate of $195.00 per hour, neither party adduced competent and reliable evidence as to the “excessiveness” of the rate or what would constitute an appropriate rate. The record simply does not support a finding of an award of a particular rate. However, it is concerning that expenses other than payments to the SETSS provider constitute more than 50 percent of the total charge.
Given the testimony and the documentary evidence in the record, as well as the arguments presented by the parties, I will exercise my equitable authority and order funding and services as described in the order below.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered that:
The Department of Education shall fund SETSS, seven periods per week as a direct group service in REDACTED and two periods per week as a direct individual service in REDACTED, for REDACTED, for the 2022-2023 10-month, 36-week school year.
The Department of Education shall pay reasonable market rates, as determined by the Department’s Implementation Unit, for the aforementioned SETSS; and, in any event, that rate shall be capped by the lowest aREDACTED paid by the Department to REDACTED Services for substantially comparable services during the 2022-2023 school year.
SO ORDERED.
DATED: February 12, 2023
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.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT DISCLOSURE
| Letter | Date | Name of Document | Number of Pages |
| A | 9/2/2022 | DPC | 3 |
| B | 8/24/2021 | IESP | 12 |
| C | 9/2/2022 | TDN | 2 |
| D | 12/27/2022 | Affidavit of Parent | 2 |
| E | 12/21/2022 | Affidavit of REDACTED REDACTED | 3 |
| F | 7/6/2022 | Contract | 1 |
| G | Provider Credentials | 1 |
Footnotes
[1] Exhibits shall be referred to as follows: Parents’ Exhibits are designated by a letter; the Department’s Exhibits are designated by a number; and Impartial Hearing Officer’s Exhibits are designated as “IHO.”