NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CORRECTED
FINDINGS OF FACT AND DECISION[1]
Case Number: [236531]
Student’s Name: [REDACTED]
School District: [REDACTED]
Impartial Hearing Officer: Richard J. Zeitler, Jr.
Date of Filing: 09/08/2022
Hearing Requested by: Parent
Date of Hearing: 12/19/2022
Record Close Date: 01/19/2022
Date of Decision: 01/25/2023
Names and Titles of Persons Who Appeared December 19, 2022
For the Student
[REDACTED], Esq.[2]
[REDACTED], Parent
For the New York City Department of Education
[REDACTED], Esq.
Background
On September 8, 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),[3] on behalf of the Student, under Case No. [REDACTED], pursuant to the Individuals with Disabilities Education Act (IDEA or the Act),[4] and the New York State Education Law.[5] The DPC asserts that the Student has been 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 ten (10) periods per week of special education teacher support services (SETSS), direct service in a group, as well as a full-time, one-to-one (1:1) daily Paraprofessional for behavioral support, and the related services of 1:1 counseling (two-30 minute sessions per week), and 1:1 occupational therapy (OT) (three-30 minute sessions per week), all for the 10-month school year.[6] The DPC further alleges that, in anticipation of the 2022-2023 school year, the Parent attempted but was unable to find a qualified SETSS provider that could administer the services recommended in the Individualized Education Services Program (IESP) at the standard rate paid by the DOE, and the Parent now requests that the Department fund the cost of SETSS and the paraprofessional for the 2022-2023 school year at an enhanced rate, and the related services at market rate.[7]
Procedural History
I was appointed the impartial hearing officer (IHO) over this matter on November 22, 2022.[8] On November 3, 2022, a settlement conference was held,[9] and on December 27, 2022, I issued an Order of Extension.[10] The merits hearing was held before me on December 19, 2022,[11] wherein all the Parent’s exhibits were admitted into evidence.[12] The Department presented no exhibits or witnesses, while the Parent offered the live testimony of the Parent, as well as affidavit testimony of the SETSS Provider Agency’s Financial Officer.[13] This decision now follows.
Findings of Fact
The following is not in dispute. The Student is [REDACTED] years old and attends the Private School for the 2022-2023 school year.[14] The Student has been classified by the Committee on Special Education as a student with a Other Health Impairment,[15] and in the Individualized Educational Services Program (IESP) in evidence, the CSE recommended “SETSS... Direct Service... Group service... Language of Service: English... 10 [periods] per week” as well as counseling “2 time(s) per week [at] 30 minutes” each session, OT “3 time(s) per week [at] 30 minutes” each session, and “Paraprofessional Behavior Support... Individual... Daily... Full time[.]”[16] The “DOE did not supply providers for the services it recommended for the Student and failed to inform the Parent how the services would be implemented.”[17] The Parent attempted but was unable to find a provider at the Department’s standard rate, but did find a provider who administers the SETSS and paraprofessional services at an enhanced rate.[18]
The Parent testified as follows. The DOE never provided the SETSS it recommended in the IESP and it did not contact her to arrange for such services.[19] In fact, she was never given any information from the Department as to how she could obtain a SETSS provider or a paraprofessional for the Student.[20] She (or the Agency, on her behalf) contacted at least ten SETSS providers, none of whom were able to assist her son.[21] She then reached out to the SETSS Provider Agency, who has been providing the necessary services to the Student, and the Student has been responding to the services “[r]eally well” and is “making big strides.”[22] She cannot afford the provider’s rate of $195 per hour.[23]
Upon cross-examination and further questioning, the Parent testified as follows. When asked whether the contract she entered into with the Agency covered SETSS only or if it also included “the other services listed in the IESP[,]” she answered, “We’re still figuring that out. But, for now, I was only able to get the SETSS[.]”[24] Even so, the SETSS Provider Agency is also administering the paraprofessional services to the Student.[25] After the school explained how much the Student needed a paraprofessional, and even informed her that the Student could not return to school without one, she entered into an understanding with the Agency that they would provide the paraprofessional as well.[26] The Agency charges $85 per hour for the paraprofessional, who works with the Student 30 to 35 hours per week.[27] The SETSS provider from the Agency has many years of experience and was even “somewhat overqualified[.]”[28] The Agency provided an OT for the Student because the DOE did not assign one.[29]
The Agency’s Financial Officer testified that the Agency administers 10 hours per week of SETSS to the Student at $195 per hour, as well as a full-time paraprofessional at $85 per hour, both for the 2022-2023 school year.[30] The contract the Parent signed states that “the Parent acknowledges and agrees that the Parent is contracting for these services... [and a]s such, responsibility ultimately rests with the Parent for payment of the difference between [the Agency’s] Rate and the DOE rate if [the Agency] does not receive full payment from the DOE for these services.[31]
With respect to credibility, I find as follows. The evidence submitted by the Parent, including her testimony and exhibits, was detailed, comprehensive, and consistent with the allegations in the due process complaint. Moreover, the Department did not offer rebuttal evidence to challenge any statements in the documents, or the veracity of the witness. I therefore find all the Parent’s evidence credible, and the weight afforded to each citation from the record 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.[32] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensively written IEP or IESP.[33] When the program is developed in New York City, a FAPE requires the DOE to both comply with the procedural requirements set forth in the IDEA, and recommend a placement and program that are reasonably calculated to enable the student to receive educational benefits.[34]
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.[35] In general, however, the decision should be determined on substantive FAPE grounds,[36] that is, whether the school district “provid[ed] personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”[37]
Substantively, school districts must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs.[38] The IDEA itself, however, confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools.[39] Under State law, parents who have privately enrolled their child in a nonpublic school may nonetheless seek educational "services" for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made.[40] Then, the district of location's CSE must review the request and "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]."[41] Under the New York State Education Law, the resulting recommended program includes what are deemed “equitable services” for the student in the private placement, and the process has become known as “dual enrollment.”[42]
If a dispute arises between a parent and a school district over the provision of equitable services under an IESP, review may be obtained via an impartial due process hearing, as called for by the IDEA.[43] The remedies available for a school district’s failure to provide appropriate equitable services under dual enrollment is similar to the remedy for a school district’s failure to provide appropriate services under 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 that damage awards are not available under the IDEA.[46] An IHO “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[47] In crafting a remedy for an equitable services matter, I am mindful that, regardless of any deficiencies in the Parent’s justification for a particular rate paid to a provider, the Department is nevertheless obligated to fund the services, as holding otherwise would countenance the denial of FAPE.
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.[48] I must, therefore, determine whether the Department met its burden to demonstrate that its offered program was reasonably calculated and implemented to provide this Student with educational benefits.
The IESP in evidence recommended “SETSS... Direct Service... Group service... Language of Service: English... 10 [periods] per week” as well as counseling “2 time(s) per week [at] 30 minutes” each session, OT “3 time(s) per week [at] 30 minutes” each session, and “Paraprofessional Behavior Support... Individual... Daily... Full time[.]”[49] The Department offered no evidence that it assigned or otherwise offered the Parent a SETSS provider for the 2022-2023 school year, instead leaving it to the Parent to find a provider.
The Department is responsible for implementing the programs it recommends in IEPs and IESPs, and it has been held that the Department may not effectively compel the Parent to resort to self-help in obtaining a SETSS provider.[50] 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,”[51] and a violation of State law.[52] The DOE thus failed to implement the IESP, which constitutes a denial of FAPE.[53]
As to the remedy, however, the inquiry has not ended. Although the Department presented no evidence in this case, “an outright default judgment awarding any and all of the relief requested without question is a disfavored outcome.”[54] 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.”[55] Moreover, the State Review Office (SRO) has held that when, like here, 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.[56] 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.”[57] 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.”[58] The evidence therefore must show that the SETSS Provider Agency’s rates are reasonable and appropriate under the circumstances.
The factors that have been found relevant to the reasonableness of a SETSS rate include: the Provider’s explanation of the rate, including its costs and the qualifications of its instructors[59]; the value that specialized certification, such as a bilingual extension, adds to instruction[60]; the Parent’s efforts to locate a DOE-approved SETSS provider from a list provided by the Department to the Parent[61]; and whether the Parent directly paid the Provider or is contractually obligated to pay the Provider in the event the Department is not ordered to fund SETSS at the requested rate.[62] I will therefore determine, in light of these factors, whether the requested rate is unreasonable.[63] Finally I will consider when the Parent notified the Department of the enhanced rate claim, because this establishes the first date the DOE would have had an opportunity to modify its offered rate for SETSS in light of the Parent’s claims.[64]
The record here establishes that the Parent and/or the Agency made the effort to contact a number of SETSS providers, none of whom could or would administer services for the Student.[65] Moreover, the Parent signed a contract declaring, in relevant part, that “responsibility ultimately rests with the Parent for payment... if [the Agency] does not receive full payment from the DOE for the[] services.”[66] As to notice, the Parent’s September 8, 2022 DPC was timely, as this date was also the first day of the 2022-2023 school year,[67] and the DPC describes the Parent’s intent to seek the cited services at an enhanced rate.[68] I find that these factors weigh in favor of an enhanced rate for SETSS.
Weighing against the requested rate is the relative lack of evidence regarding the SETSS Provider’s Agency’s justification for how it calculates the $195 per hour it charges. The SRO has made inquiry into an agency’s costs, including the qualifications of instructors, supervision of instructors, training, assessments of students, materials and equipment for students and instructors, administrative costs, and other aspects of overhead.[69] As the money paid to instructors can be an agency’s primary expenditure, the qualifications of instructors should be an important focus. In, fact, it has been held that while a SETSS provider agency need not necessarily utilize special education certified teachers as instructors, having a certification that is relevant to a Student’s particular needs can certainly inform the determination of an instructor’s overall quality, which in turn can explain a higher rate.[70]
Here, the only evidence regarding qualifications was the Parent’s testimony that the Agency instructor who worked with her son had many years of experience and maybe was “overqualified,”[71] without further explanation as to what that meant. As for overhead, the only evidence came from the Agency’s affidavit, which merely reiterated what the Agency charges. The Parent thus offered very little to substantiate the rate, which I find should factor against the award. That said, I do not find the SETSS Provider Agency’s 2022-2023 rate for SETSS per se unreasonable,[72] and other factors weigh in the Parent’s favor, including her reasonable attempts at finding a suitable provider, the contract that assigned ultimate liability to the Parent, and her timely and proper notice to the Department regarding her enhanced rate claim. I therefore conclude on this record that the rate paid to the SETSS Provider Agency should be $150 per hour.
As for the paraprofessional, I was not provided with any market analysis or other evidence from either party regarding whether $85 is closer to a standard rate or an enhanced rate, and what justifies this charge for the Student’s particular paraprofessional. I note that, under the above law of enhanced rates, both parties should have offered such evidence. Therefore, I will award the higher of the Department’s standard hourly rate for paraprofessional services, or the rate that the Department calculates to be the current market rate (as of the date of this decision), or 75% of the $85 rate requested by the Parent ($63.75), but in any event not more than the requested $85 per hour. Finally, and only to the extent that counseling and OT are recommended in the IESP but are not being provided by the DOE, I will order that the Department pay providers of the Parent’s choice at the rate that the Department calculates to be the current market rate (as of the date of this decision).
Decision and Order
It is hereby ordered, that the New York City Department of Education shall provide the services requested in the DPC during the pendency of this matter, but only to the extent the Parent has not withdrawn the request for a pendency order before the date of this decision, or the issue of pendency was not stipulated between the parties before the date of this decision; and it is, further Ordered, that the New York City Department of Education shall pay the SETSS Provider Agency for the administration of SETSS, at no more than 10 sessions per week, with Direct, Group Service, in English, for the 10-month 2022-2023 school year, less any amounts paid under pendency, at the rate of $150 per hour, with such payment to be made within thirty (30) days of a 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 administered to the Student for the period covered by each invoice, up to the end of the 10-month 2022-2023 school year; and, it is further, Ordered, that that the New York City Department of Education shall pay the SETSS Provider Agency for the administration of a full-time, daily Paraprofessional for behavior support, individual service, for the 10-month 2022-2023 school year, less any amount paid under pendency, at a rate equal to the higher of (i) the Department’s standard hourly rate for paraprofessional services (but not more than $85 per hour), (ii) the rate that the Department calculates to be the current market rate (as of the date of this decision, but not more than $85 per hour), or (iii) $63.75 per hour; with such payment to be made within thirty (30) days of a submission to the DOE of any invoices for such services, together with an affidavit attached to each invoice attesting to the provision of the Paraprofessional service administered to the Student for the period covered by each invoice, up to the end of the 10-month 2022-2023 school year; and, it is further, Ordered, and only to the extent that it is not already being provided by the Department to the Student for the 2022-2023 school year, that the New York City Department of Education shall pay the provider(s) of the Parent’s choice for the provision of (i) counseling, two sessions per week (30 minutes each session), and (ii) occupational therapy, three sessions per week (30 minutes each session), for the 10-month 2022-2023 school year, less any amount paid under pendency, at the rate that the Department calculates to be the current market rate (as of the date of this decision) for each service, with such payment to be made within thirty (30) days of a submission to the DOE of any invoices for such services, together with an affidavit attached to each invoice attesting to the provision of the service administered to the Student for the period covered by each invoice, up to the end of the 10-month 2022-2023 school year.
So Ordered.
Dated: January 25, 2023
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 | 09/08/2022 | 6 |
B | CSE Individualized Education Services Program | 06/09/2022 | 10 |
C | Call Log | 09/05/2022 | 1 |
D | Parent Agreement | 07/01/2022 | 3 |
E | Affidavit of Services | 12/12/2022 | 1 |
IHO EVIDENCE
Exhibit | Title | Date | Pages |
I. | Order of Extension | 12/27/2022 | 1 |
APPENDIX
Redacted Information | Term Used In FOFD |
[REDACTED] | Student |
[REDACTED] | Parent/Guardian |
[REDACTED] | Parent Attorney |
[REDACTED] | District Attorney |
N/A | Public School |
[REDACTED] | Private School |
[REDACTED] | SETSS Provider Agency |
[REDACTED] | Financial Officer, SETSS Provider Agency |
N/A | Neuropsychologist |
N/A | Committee on Special Education/Committee on Pre-School Special Education |
N/A | Principal |
N/A | Case Manager |
N/A | Occupational Therapist |
N/A | Physical Therapist |
N/A | Speech-Language Therapist |
Footnotes
[1] This decision is only corrected to reflect the correct “Record Close Date,” which was originally “01/19/2022.”
[2] [REDACTED] was not an admitted attorney on the date of the hearing but, according to the New York State Unified Court System website Attorney Search, he was admitted to the Bar on [REDACTED].
[3] See Ex. A-1.
[4] See 20 U.S.C. § 1415(f).
[5] See Educ. Law § 4404(1) et seq., and specifically, § 3602-c.
[6] See Ex. A-3 and Ex. B-6 to B-7.
[7] See Ex. A-2; see also Transcript of the December 19, 2022 merits hearing (Tr.) at pg. 16. The DPC also asserts pendency; however, neither party mentioned pendency at the conference or at the hearing. Given that there is only one IESP in the record and that it was undisputed that the services are found in that document, I will order pendency in that IESP, but only to the extent that the Parent had not withdrawn the pendency request and that it was not resolved before the date of this decision.
[8] The matter was originally assigned to another IHO on October 28, 2022, and then subsequently reassigned to me.
[9] Tr. at pg. 7.
[10] See IHO Ex. I.
[11] See Tr. at pp. 1 and 4.
[12] See Exs. A through E, admitted without objection.
[13] The Parent requested that I allow live testimony of two witnesses from the SETSS Provider Agency. I denied the request, noting my November 3, 2022 email, wherein it was made clear that testimony was expected to be introduced by affidavit only, with appearances by witnesses only for cross-examination or questioning by myself, and only upon the request from the opposition or myself. There were no requests for witness appearances in this case.
[14] See Ex. A-1.
[15] See Ex. B-1. The IESP details the Student’s academic challenges with communication and attention, as well as multiple behavioral challenges in the classroom. See id. at B-1 to B-5.
[16] Id. at B-7.
[17] Ex. A-1.
[18] See id.; see also Ex. C-1.
[19] See Tr. at pg. 21.
[20] See id. at pg. 23.
[21] See id. at pp. 21 to 24 and 36 to 37.
[22] See id. at pg. 24.
[23] See id.
[24] See id. at pg. 27.
[25] See id. at pg. 28.
[26] See id. at pp. 28 to 32 and 35 to 36 and 39 to 40.
[27] See id. at pp. 35 to 36.
[28] See id. at pp. 32 to 34. She did not explain what this meant.
[29] See id.
[30] See Ex. E-1.
[31] Ex. D-3.
[32] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a) and (b)(2).
[33] C.F.R. § 300.13.
[34] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[35] 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).
[36] U.S.C. § 1415(f)(3)(E)i).
[37] Rowley, 458 U.S. at 203.
[38] See 20 U.S.C. § 1412(a)(l)(A); Educ. Law§ 4402(2)(a), (b)(2).
[39] See 34 CFR 300.137(a).
[40] Educ. Law § 3602-c(2).
[41] Educ. Law § 3602-c(2)(b)(l).
[42] See id.; see also, e.g., Application of a Student with a Disability, Appeal No. 22-024.
[43] 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).
[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 East Lyme Bd. of Educ., 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). As explained more fully below, SETSS cases have been treated as a hybrid between unilateral placement theory cases, see, e.g., Application of a Student with a Disability, Appeal No. 20-115, and pure compensatory education cases. See, e.g., 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).
[49] Id. at B-7.
[50] See, e.g., Application of a Student with a Disability, Appeal No. 21-068.
[51] Id.
[52] 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”) (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.
[53] See Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
[54] 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]).
[55] Application of a Student with a Disability, Appeal No. 22-004.
[56] 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]).
[57] Application of a Student with a Disability, Appeal No. 20-115 (finding, inter alia, the analysis "unworkable to the extent that the SETSS services can be construed as a state-approved option”).
[58] East Lyme Bd. of Educ., 790 F.3d at 454 (citation omitted).
[59] Application of a Student with a Disability, Appeal No. 20-140 (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”).
[60] 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).
[61] See, e.g., Application of a Student with a Disability, Appeal No. 21-096 (May 26, 2021).
[62] 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”).
[63] 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”).
[64] See id. (finding further that despite the per se reasonableness of the rate, a reduction in rate that had been imposed by the IHO was justified where the parent did not provide a ten-day notice (TDN), per 20 U.S.C. § 1412[a][10][C][iii] and 34 CFR § 300.148[d][1]). I will contrast this decision, however, to the extent that I do not find a TDN necessary where the parent files a DPC at the beginning of the school year, which provides the same notice and opportunity for the DOE to address how it provides SETSS to the Student as would a TDN.
[65] See id. at pp. 21 to 24 and 36 to 37.
[66] Ex. D-3.
[67] See <https://www.schools.nyc.gov/about-us/news/2022-2023-school-year-calendar> (last visited on Jan. 23, 2023).
[68] See Ex. A-2.
[69] See Application of a Student with a Disability, Appeal No. 20-140.
[70] See id.
[71] See id. at pp. 32 to 34.
[72] Rates have been upheld at $175 per hour, see Application of a Student with a Disability, Appeal No. 21-138, and $200 per hour. See Application of a Student with a Disability, Appeal No. 21-183, at pp. 20-21 (Oct. 29, 2021) (for a bilingual reading specialist). Moreover, in Application of a Student with a Disability, Appeal No. 11-045, decided in July of 2011, the SRO affirmed a standard SETSS rate of $150 per hour. This translates, 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 Jan. 25, 2022), to $197.06 per hour as of December 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).