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CASE NUMBER: 588515 NYC: 239697
FINDINGS OF FACT AND DECISION
Names and Titles of Persons Who Appeared [REDACTED]
For the Student:
[REDACTED], Esq.
[REDACTED], Educational Director, SETSS Provider Agency
REDACTED, Parent Student
For the Department of Education:
[REDACTED], Consultant Impartial Hearing Representative
Background
On [REDACTED], 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, 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 has been denied a free and appropriate public education (FAPE) in that, for the 2022-2023 school year, the Department recommended and then failed to implement a program of services for the Student, pursuant to its Individualized Education Services Program (IESP).[4] 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 provide the services mandated in the IESP at the standard rate paid by the DOE, and the Parent now requests that the Department fund the cost of SETSS for the 2022-2023 school year at an enhanced rate. [5]
Procedural History
I was appointed the impartial hearing officer (IHO) over this matter on December 21, 2022. On January 11, 2023, a settlement conference was held, and I issued Orders of Extension on February 17, 2023, March 10, 2023, and April 14, 2023.[6] I granted pendency and issued a So-Ordered interim order on pendency on March 27, 2023.[7] The merits hearing was held before me on [REDACTED].[8] All the Exhibits were admitted into evidence.[9] The Department Case No. [REDACTED] presented no witnesses, while the Parent offered the testimony of the SETSS Provider Agency’s Educational Director and the Parent herself.[10] This decision now follows.
Findings of Fact
At the hearing, the following was not in dispute. The Student is REDACTED years old and attends the Private School for the 2022-2023 school year.[11] The Student has been classified by the Committed on Special Education as a student with a Speech and Language Impairment, [12] The IESP recommended “SETSS . . . Direct Service . . . Group service . . . Language of Service: Yiddish . . . 3 [periods] per week”; “Hearing Education Services [HES] . . . Individuals service . . . Language of Service: Yiddish . . . 2 times per week [at] 30 minutes” per session; “Speech-Language Therapy . . . Individual service . . . Language of Service: Yiddish . . . 3 times per week [at] 30 minutes” per session; and the full-time use of hearing assistive technology (FM unit). [13] The Department did not offer the Parent a specific SETSS provider, and the Parent was unable to find a provider at the Department’s standard rate, but did find a provider who can administer the services at an enhanced rate. [14]
The Department’s Case
The Department Representative asserted the following. The DOE “facilitated examinations and evaluations in support of the Student’s educational needs” but the “Student . . . was parentally placed in a private educational program at the Parent’s selection” and that “placement is not appropriate . . . to meet the Student’s needs in accordance with the IESP[.]” [15] The rates “demanded by the Parent via the agency provider are not necessary to meet the educational needs of the this Student and . . . are in excess of what would be a reasonable rate” for “services necessary to meet [the Student’s] educational goals.”[16] In support, the Department submitted in evidence the IESP, the Department’s prior written notice (PWN) offering the Case No. [REDACTED] program recommended in the IESP, a psychoeducational evaluation conducted before the IESP meeting, and an audiogram (audiological evaluation). [17]
The Parent’s Case
SETSS Provider Agency Educational Director
The SETSS Provider Agency’s Educational Director (Director) testified as follows. She holds a Master’s degree in Early Childhood Education, and is awaiting certification for her postMaster’s training in applied behavioral analysis (ABA) [18]; she is also a NYS licensed special education teacher with a bilingual extension.[19] As the Director, she hires the special education teachers who provide instruction to their students (providing instructors), reviews student evaluations and other materials “to determine whether [the] agency can provide appropriate services” and “assigns an appropriate educator to the student.”[20] She also “communicate[s] with the parents to better understand their child’s learning needs” and “visit[s] the schools where [the Agency’s] services are provided and collaborates with the providers and school personnel to address any needs and concerns.”[21] The Agency rate for SETSS is $197.00 per hour. [22]
The Student has been receiving three hours of SETSS per week for the 2022-2023 school year from two providing instructors, who are both certified in New York State to teach students with disabilities and are bilingual Yiddish instructors.[23] These instructors “prepare for sessions, create goals, write progress reports . . . meet with teachers and parents” and they “provid[e] direct 1:1 service to” the Student.[24] The “individualized sessions . . . provide a great deal of specialized instruction” to the Student.[25] With the program in place, the Student has “shown signs of progress with her SETSS . . . providers. However, [her] academic and social delays warrant the need for continued services.” [26] Case No. [REDACTED]
Under cross-examination and upon further questioning, the Director testified as follows. The contract that the Parent entered into with the Agency assigned financial liability to the Parent for the cost of its services, and although the contract does not contain the Agency’s hourly rate, that information was provided to the Parent in a separate rate sheet.[27] There are approximately 1,200 students receiving SETSS through the Agency for the 2022-2023 school year. [28]
The two providing instructors who work with the Student collaborate with each other. [29] The Agency pays each of them $100.00 per hour.[30] The remainder of the rate goes to supervision, in order “to ensure progress, [a] high quality of learning, advocacy within the school, and cooperation between providers”; research and materials; professional development and training to the providing instructors; and administrative overhead costs.[31] The Agency will provide services for students with hearing needs, but the Parent here did not request those services from the Agency.[32] The providing instructors do not assist the Student with any religious-based education programs.[33] Both the instructors have a bilingual Yiddish extension on their teaching certificates for students with disabilities. [34]
Parent
The Parent testified as follows. The Student “struggles in many academic and social/emotional areas and requires a lot of extra assistance[,] . . . without [which] she would not be able to maintain her mainstream placement.”[35] She attempted to find the Student a SETSS provider, including by making “many phone calls to independent SETSS providers on the list that is published on the DOE website” but “none of them were available to service [the Student] at the standard DOE rate” and the “DOE did not make available any SETSS provider.” [36] Case No. [REDACTED]
The Parent submitted a ten-day notice (TDN) “informing the D[OE] of [her] intention to implement the” IESP on her own and the Department “did not reach out to [her] with any agreement or objection. She therefore reached out to the Agency, which has been “providing 3 hours of SETSS per week for the duration of the 2022-2023 school year.”[37] She understands that the contract she “signed . . . obligates [her] to pay for these services in the event the DOE does not pay the Agency”; nonetheless, “[p]aying for the[] services up front would pose extreme financial hardship” and she “would not be able to pay for th[e] services without outside financial support from friends and family. [38]
Under cross-examination and upon further questioning, the Parent testified as follows. The Student is in 3rd grade for the 2022-2023 school year.[39] She has not been able to find a HES provider for the current school year.[40] She tried calling many of the providers on a list given to her by the Department but “nobody wanted to take my daughter’s case. They said they’re not available.”[41] She had difficulty finding a provider for SETSS as well, until she contacted the Agency, and “they were able to give [the Student] a provider.” [42]
The Parent understands that the contract she signed makes her liable for the cost of the Agency’s services if the DOE is not ordered to pay for them,[43] but the Student “really needs . . . the services at all costs . . . whatever it is[.]”[44] The Department has been paying for the Student’s SLT, as it has in prior years. [45]
Closing Statements
In closing, the Department Representative argued as follows.[46] The Student is not entitled to an award for SLT because the Parent acknowledged that the Student is already receiving it from the Department. The Student is not entitled to HES because the Parent did not Case No. [REDACTED] exhaust all available remedies. The SETSS obtained by the Parent is not appropriate because one of the providing instructor’s certifications qualifies that instructor to teach special education from birth through grade 2, and the Student is in 3rd grade. Moreover, the equities do not favor an award of a program that charges $197.00 per hour, as the contract the Parent signed did not disclose the rate, and moreover, the Agency charges a standard rate, which means that it was not individualized to the Student. The Director did not explain the Agency’s costs with any specificity, and the Department should not be responsible for any charge beyond the $100.00 per hour it pays the providing instructors or, in the alternative, no more than “the DOE’s standard rate for SETSS services for privately placed students of $150.00 per, per hour.”
In closing, the Parent Attorney contended the following.[47] The Department failed to offer the Student a FAPE in that it did not implement the IESP services. The Parent’s chosen program of services was, in fact appropriate and, to the extent she had not obtained a HES provider, this does not mean that she did not want them for the Student. As to the instructors’ certifications, the law does not require the teachers chosen by parents to be certified; nonetheless, it is not “that large of a leap to conclude that” the one instructor who was certified to 2nd grade can still be appropriate for a student in 3rd grade. The Department’s rate of $150.00 per hour for SETSS does not incorporate all the costs that the Director described, such as training, supervision, and office expenses. It is also appropriate to charge a single hourly rate for students, as a “provider should [not] be making arbitrary . . . rate changes . . . based on the difficulty of the child.” Furthermore, the DOE presented no evidence as to what the market rate for the services should be.
Credibility
Upon my consideration of the evidence, including all admitted documents and the testimonies of the witnesses, I determine the following. In admitting the documents, I found them relevant, detailed, and consistent with the allegations in the DPC, as well representative of the facts for which they were offered, and therefore I credit all of them. As for the witnesses, I found no reason to doubt their veracity, with respect to the facts they related or to the opinions of Case No. [REDACTED] the Agency’s Educational Director, and I credit all the testimony as well. The weight I afford the exhibits and testimony 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 need special education programs or services.[48] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP or IESP. [49] 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. [50]
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.[51] In general, however, the decision should be determined on substantive FAPE grounds,[52] that is, whether the school district “provid[ed] personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” [53]
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.[54] The IDEA regulations, however, confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools.[55] 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 Case No. [REDACTED] school is located on or before the first day of June preceding the school year for which the request for services is made. 56 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]."[57] This is “known as the dual enrollment statute, [which] requires the provision of special education programs ‘on an equitable basis’ to students who attend nonpublic schools.”[58] In the matter before me, it is the rate for these equitable services that must be determined.
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.[59] 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.[60] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act,”[61] and that damage awards are not available under the IDEA.[62] An IHO “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[63] 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
Educ. Law § 3602-c(2). But see 20 U.S.C. § 1412(a)(10)(C) which states, “[s]ubject to subparagraph (A), this subchapter does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school . . . and the parents elected to place the child in such private school or facility.” (Emphasis added.) One of those “subject to” conditions is § 1412(a)(10)(A)(vi), which mandates that “[t]he provision of services . . . shall be provided . . . by employees of a public agency . . . or . . . . through contract by the public agency with an individual, association, agency, organization, or other entity.” 20 U.S.C. § 1412(a)(10)(A)(vi) (emphasis added). It is undisputed that the NYC DOE did not provide a special education teacher or itself contract to have a special education teacher provide the IESP services to the Student. While I need not hold that the protection of § 1412(a)(10)(C) have been lifted, and I cannot say with certainty that the DOE is insulted from an IDEA obligation to the Student notwithstanding that the Student attends a NPS. Case No. [REDACTED] paid to a provider, the Department is nevertheless obligated to fund the services, as holding otherwise would countenance the denial of FAPE on an equitable basis.
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.[64] 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 recommended “SETSS . . . Direct Service . . . Group service . . . Language of Service: Yiddish . . . 3 [periods] per week”; “Hearing Education Services [HES] . . . Individuals service . . . Language of Service: Yiddish . . . 2 times per week [at] 30 minutes” per session; “Speech-Language Therapy . . . Individual service . . . Language of Service: Yiddish . . . 3 times per week [at] 30 minutes” per session; and the full-time use of hearing assistive technology (FM unit).[65] The Parent acknowledged that she has not yet obtained an HES provider, and that SLT service have been provided by the Department during the school year, but 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.[66] 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 Case No. [REDACTED] unreasonable,”[67] and a violation of State law.[68] The DOE thus failed to implement the IESP, which constitutes a denial of FAPE on an equitable basis. [69]
As to the remedy, however, the inquiry has not ended. Although the Department chose to not to assert or provide evidence that it offered a FAPE in implementation of its recommended program, “an outright default judgment awarding any and all of the relief requested without question is a disfavored outcome.”[70] This would be the case “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.”[71] 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.[72] 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.”[73] 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 Case No. [REDACTED] appropriate in light of the purpose of the Act.”[74] The evidence therefore must show that the SETSS providers’ 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 Agency’s explanation of the rate, including its costs and the qualifications of its providing instructors [75]; the value that specialized certification, such as a bilingual extension, adds to instruction [76]; the Parent’s efforts to locate a DOE-approved SETSS provider from a list provided by the Department to the Parent [77]; 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.[78] I will therefore determine, in light of these factors, whether the requested rate is unreasonable.[79] 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. [80]
Here the Educational Director credibly explained how the providing instructors are paid $100.00 out of each $197.00 per hour the Agency charges for SETSS, and that the remainder covers the Agency’s costs for supervision of the providing instructors, research and materials used by the instructors in their work with students, professional development and training for the providing instructors, and administrative overhead.[81] I disagree with the Department’s position Case No. [REDACTED]
that a rate award should not consider these factors related to running a business, as this would deter agencies from providing a necessary service that the Department is not.
All the above tends to justify the rate. Also weighing in favor of the Parent are the efforts she made to contact providers on the DOE’s official list of independent SETSS providers, 82 the fact that the DPC was filed near the beginning of the ten-month school year, and that the contract she signed with the Agency makes clear that it is the Parent’s “responsibility to pay any balance of any fee that is not covered by the NYC Department of Education[.]” 83
Weighing somewhat against the Parent’s request are the credentials of one of the Student’s two providing instructors from the Agency. The Student attends 3rd grade for the 2022-2023 school year, and while one of the instructors has a professional certificate in teaching special education for students from birth through 6th grade and passed the exam for a bilingual Yiddish extension in 2017, 84 the other had a professional certificate in teaching special education for students from birth through 2nd grade and had passed the exam for a bilingual Yiddish extension in 2021. 85
On the totality of the record before me, I find that the Provider’s 2022-2023 rate for SETSS is not per se unreasonable, 86 but that a reduction is warranted here because one of the instructor’s qualifications did not fully match the Student’s needs. The Student is in 3rd grade; regardless of whether both the instructors can teach the Student similarly, one of them had a special education certificate that ended one year below the Student’s current grade level. This must be factored into the rate, as certification is still the best indicator of the “reasonable qualifications that are specifically related to the student’s deficits.”[87] That said, I find the impact
Id. ¶ 4. 83 Ex. F-3. 84 See Exs. G-1 and H-1. 85 See Exs. I-1, J-1, and K-1. 86 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, 2023), to $197.06 per hour as of December 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). Case No. [REDACTED]
of this deficit minimal in this case, because it is but one year beyond the instructor’s certification, and because the Department’s evidence demonstrates that the Student was reading one year behind. In the psychoeducational evaluation, conducted during the 2021-2022 school year (when the Student was in 2nd grade), the evaluator noted that the Student struggled to read a 1st grade level story.[88] This was also highlighted in the IESP issued that same year, where it states that an assessment “placed her reading at . . . a mid 1st grade equivalent.”[89] There is no indication that the Student was reading at a 3rd grade level one year later. Thus, if the Student were still reading at a 1st grade level, or even a 2nd grade level, teaching such a reader would be within the purview of both instructor’s certifications.
In considering all the relevant equitable factors, I will award the Parent the full requested rate of $197.00 per hour with respect to the instructor whose special education certification covers students up to 6th grade. As for the second instructor, whose special education certification stops at students who attend 2nd grade, I find that this is a clear deficit that warrants no more than a ten percent rection in the rate ($19.70 per hour), for a rate of $177.30 per hour. The Parent did not offer evidence to demonstrate how much of the Student’s SETSS is provided by each of the instructors. If the Parent submits invoices and affidavits attesting to how many hours each providing instructor administered SETSS to the Student for the 2022-2023 school year, the above rates shall apply to each instructor. For any period where the invoices and affidavits do not or cannot break down how many hours of service were attributable to each instructor, the rates shall be averaged, to a single rate of $187.15 per hour.
Decision and Order
It is hereby ordered, that the New York City Department of Education shall pay the SETSS Provider Agency for the administration of SETSS, at no more than three periods per week, for the ten-month 2022-2023 school year, less any amounts paid under pendency, at rates of $197.00 per hour for services administered by the providing instructor certified to 6th grade, and $177.30 per hour for services administered by the providing instructor certified to 2nd grade, as supports that are specially designed by . . . providers . . . who have reasonable qualifications that are specifically related to the student’s deficits”). Case No. [REDACTED] described in this decision, with such payments 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 2022-2023 school year; provided that for any portion of the school year for which the invoices and affidavits do not break down how many hours of service were attributable to each instructor, the rate paid to the Agency for any such time periods shall be $187.15 per hour, regardless of which providing instructor administered the services; and it is further, Ordered, that the New York City Department of Education shall pay for the provision of speech-language therapy, 1:1, in Yiddish, at no more than 3x30 minutes per week for the ten-month 2022-2023 school year, less any amounts paid under pendency and to the extent such services have not already provided, at a rate equal to any agreed upon rate and, if there is no agreed upon rate, then at a rate consistent with rates that the Department has paid for such services with a similarly qualified provider in the last six months, 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 speech-language therapy administered to the Student for the period covered by each invoice, up to the end of the 2022-2023 school year; and it is further, Ordered, that the New York City Department of Education shall pay for the provision of hearing education services, 1:1, in Yiddish, at no more than 2x30 minutes per week for the ten-month 2022-2023 school year, less any amounts paid under pendency and to the extent such services have not already provided, at a rate equal to any agreed upon rate and, if there is no agreed upon rate, then at a rate consistent with rates that the Department has paid for such services with a similarly qualified provider in the last six months, 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 hearing education services administered to the Student for the period covered by each invoice, up to the end of the 2022-2023 school year; and it is further, Case No. [REDACTED]
Ordered, that the New York City Department of Education shall fund and provide for the fulltime use of hearing assistive technology every school day, as described in the April 29, 2022, IESP, for the duration of the ten-month 2022-2023 school year.
So Ordered.
Dated: June 21, 2022
Richard J. Zeitler, Jr. (signed electronically) Impartial Hearing Officer
[REDACTED]
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. Case No. [REDACTED]
DISTRICT EVIDENCE
1. Individualized Education Program 04/29/2022 12 pages DOE
2. Prior Written Notice 05/13/2022 3 pages DOE
3. Psychoeducational Evaluation Report 03/22/2022 7 pages DOE
4. Audiogram 04/26/2022 4 pages DOE
PARENT EVIDENCE
A. DPC 9/28/2022 6 pages
B. IESP 4/29/2022 12 pages
C. TDN 9/28/2022 2 pages
D. Affidavit of Parent 1/30/2023 2 pages
E. Affidavit of Provider 1/23/2023 4 pages
F. Contract 9/22/2022 3 pages
H. G Provider Credentials 2 NYS Teacher Certification Score Report 10/17/2017 2 pages
I. [REDACTED] Early Childhood Education Certification Eff. 04/09/2019 1 page
IHO EVIDENCE
I. Order of Extension 02/17/2023 1 page IHO
II. Order of Extension 2 03/10/2023 1 page IHO
III. Order of Extension 3 04/14/2023 1 page IHO
IV. Order of Pendency 03/27/2023 2 pages IHO
Footnotes
[1] See Ex. A-1.
[2] See 20 U.S.C. § 1415(f).
[3] See Educ. Law § 4404(1) et seq., and specifically, § 3602-c.
[4] See id. at A-2.
[5] See id. at A-2 to A-3. The DPC also asserts pendency and requests a bank of hours for “SETSS and related services for the entire 2022-2023 school year – or the parts of which [that] were not serviced”; however, as noted below, I resolved pendency via order on March 27, 2023, see IHO Ex. IV, and the Parent Attorney specifically withdrew the request for a bank of hours. See Tr. at pg. 22. There is thus no need for further discussion on those issues, as they are moot.
[6] See IHO Exs. II and III.
[7] See IHO Ex. IV.
[8] The transcript is denoted as “Tr.”
[9] See Exs. 1 through 5 and A through K. Ex. 3 was admitted over the Parent’s objection. The Parent initially objected to Ex. 4 as well, but later withdrew the objection. The Parent offered Exs. A through G at the hearing, and Exs. H through K are exhibits that I gave the Parent an opportunity to provide after the testimony was heard, in order to complete the record; I admitted Ex K over the Department’s objection.
[10] Both witnesses offered their direct testimony via affidavit, and both were present virtually at the hearing and provided further testimony live.
[11] See Ex. A-1; see also Ex. E ¶ 16.
[12] See Exs. A-1 and 1-1.
[13] Id. at 1-9.
[14] See Ex. A-2.
[15] Tr. at pp. 18 to 19.
[16] Id. at 19.
[17] See Exs. 1 through 4, respectively.
[18] See Ex. E ¶ 2.
[19] See id.
[20] Id. ¶¶ 5 to 6.
[21] Id. ¶¶ 5 and 8.
[22] See id. ¶ 9.
[23] See id. ¶ 14.
[24] Id. ¶ 15.
[25] Id. ¶ 18.
[26] Id. ¶ 20.
[27] See Tr. at pp. 42 to 43.
[28] See id. at pg. 43.
[29] See id. at pg. 44.
[30] See id. at pg. 45.
[31] Id. at pp. 45 to 46.
[32] See id. at pg. 46.
[33] See id. at pg. 47.
[34] See id. at pp. 50 to 52.
[35] Ex. D ¶ 2.
[36] Id. ¶ 4.
[37] Id. ¶ 7.
[38] Id. ¶¶ 8 to 9.
[39] See Tr. at pg. 33.
[40] See id. at pg. 30.
[41] Id. at pp. 30 to 31.
[42] Id. at pg. 31.
[43] See Tr. at pg. 35.
[44] Id.
[45] See Tr. at pp. 36 to 37.
[46] Id. at pp. 68 to 74.
[47] Id. at pp. 74 to 79.
[48] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a) and (b)(2).
[49] 34 C.F.R. § 300.13.
[50] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[51] 20 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).
[52] 20 U.S.C. § 1415(f)(3)(E)i).
[53] Rowley, 458 U.S. at 203.
[54] See 20 U.S.C. § 1412(a)(l)(A); Educ. Law§ 4402(2)(a), (b)(2).
[55] See 34 CFR 300.137(a).
[57] Matter of Bd of Educ. of Bay Shore Union Free School Dist. v. Thomas K., 14 N.Y.3d 289 (2010) (citing Educ. Law § 3602-c[2][b][l]).
[58] See, e.g., Application of a Student with a Disability, Appeal No. 22-024.
[59] 20 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).
[60] 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).
[61] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[62] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[63] See East Lyme Bd. of Educ., 790 F.3d at 454.
[64] 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); see also P. V. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (compensatory education is an appropriate remedy for a denial of FAPE).
[65] Id. at 1-9.
[66] See, e.g., Application of a Student with a Disability, Appeal No. 21-068.
[67] Id.
[68] 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.
[69] See Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
[70] 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]).
[71] Application of a Student with a Disability, Appeal No. 22-004.
[72] 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]).
[73] 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”).
[74] East Lyme Bd. of Educ., 790 F.3d at 454 (citation omitted).
[75] 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”).
[76] 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).
[77] See, e.g., Application of a Student with a Disability, Appeal No. 21-096 (May 26, 2021).
[78] 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”).
[79] 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”).
[80] 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.
[81] See Ex. E ¶ 9; see also Tr. at pp. 45 to 46.
[87] 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
[88] See Ex. 3-5.
[89] See Ex. 1-3.