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CASE NUMBER: 588739 – NYC: 239886
FINDINGS OF FACT AND DECISION
Student’s Name: REDACTED REDACTED
School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: September 29, 2022
Date(s) of Hearing: December 21, 2022
January 3, 2023
January 6, 2023
February 23, 2023
February 27, 2023
March 9, 2023
Actual Record Closed Date: March 30, 2023
Date of Decision: April 2, 2023
Date of Distribution if Different than Decision Date: N/A Hearing Officer: Jean Marie Brescia, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
December 21, 2022
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED
January 3, 2023
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
REDACTED REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
January 6, 2023
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
REDACTED REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
February 23, 2023
For the Student:
REDACTED REDACTED, Esq.
REDACTED REDACTED, Parent Student
REDACTED REDACTED, Special Education Supervisor, REDACTED REDACTED, LLC
For the Department of Education:
REDACTED REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
February 27, 2023
For the Student:
REDACTED REDACTED, Esq.
REDACTED REDACTED, Parent Student
REDACTED REDACTED, Financial Administrator, REDACTED REDACTED, LLC
For the Department of Education:
REDACTED REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
March 9, 2023
For the Student:
REDACTED REDACTED, Esq.
REDACTED REDACTED, Financial Administrator, REDACTED REDACTED, LLC
REDACTED REDACTED, SETTS Provider
For the Department of Education:
REDACTED REDACTED, Esq.
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 29, 2022. Ex. A.[1] On December 13, 2022, I was appointed by the New York City Department of Education to hear this matter. Parent alleges that the Department failed to provide a free appropriate education to REDACTED for the 2022-2023 school year by failing to implement SETSS mandated by her IESP and seeks funding for three hours per week of SETSS obtained for REDACTED by her parents for the 2022-2023 school year. Ex. A. Parent seeks direct payment for these services to an agency, REDACTED REDACTED Services Inc. (“REDACTED”) at an “enhanced rate.” Exs. A, C.
I conducted a prehearing conference on December 21, 2022. An advocate for REDACTED’s parents appeared; no one appeared on behalf of the Department. At the prehearing conference, the advocate for REDACTED’s parents clarified the relief sought in this proceeding and requested a pendency hearing.
On January 3, an advocate for REDACTED’s parents appeared; counsel appeared on behalf of the Department. Procedural, evidentiary and settlement issues were discussed; and counsel presented arguments with respect to pendency. A hearing as to pendency was conducted. On January 6, discussions relating to pendency, evidentiary issues, and settlement continued; counsel subsequently submitted briefs with respect to pendency. IHO Exs. I, II.
The hearing was scheduled for January 31. The parties requested extensions of the due dates of their pendency briefs and a consequent continuance of the January 31 hearing date. The requests were granted, and the hearing proceeded on February 23. Counsel for REDACTED’s parents and counsel for the Department appeared. The Department did not present the testimony of any witnesses or offer any documents in evidence. REDACTED’s parent testified, as did a witness from REDACTED. Parent’s exhibits A through G were admitted in evidence.
The hearing continued on February 27 with the testimony of the financial administer of REDACTED. On March 1, I signed subpoenas submitted by the Department. Ex. 1. The hearing continued and was completed on March 9 with the testimony of the SETSS provider and additional testimony from REDACTED’s financial administrator. Parent’s Exhibits I through N were admitted in evidence. Also admitted in evidence were the signed subpoenas as Department Exhibit
1. Exhibit I was subsequently withdrawn by REDACTED’s parent because it was a duplicate document.
The parties requested extensions of the compliance date, and written Orders of Extension were issued on December 21, 2022, and January 12, January 25, and February 27, 2023. The reasons for granting the extensions are set forth in the Orders.
The record was closed on March 30, 2023, upon the Hearing Officer’s receipt of correctly marked exhibits from REDACTED’s parents’ counsel.
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 § 4404, and its implementing regulation, 8 N.Y.C.R.R. § 200.5.
REDACTED’s parent, through counsel, consented to the conduct of the hearing via videoconference and to the transmittal of this decision by email. Tr. 3-4.
ISSUES
REDACTED’s parents seek funding for SETSS services for REDACTED, who is parentally-placed in a non-public school. At the hearing, the Department did not present evidence to defend its IESP for REDACTED for the 2022-2023 school year. The issues to be resolved are therefore:
1. What is the applicable legal analysis in this case, which involves a student parentally placed in a nonpublic school?
2. Do the SETSS services provided by REDACTED address REDACTED’s special educational needs?
3. Does the balance of the equities favor REDACTED’s parents?
a. Do REDACTED’s parents have a legal obligation to pay REDACTED for services it provides to REDACTED?
b. Are REDACTED’s parents unable to pay REDACTED for services it provides to REDACTED, and is such an analysis required in light of recent
Southern District precedent?
c. Are there other equitable issues that might serve to reduce funding in this proceeding?
FINDINGS OF FACT
1. REDACTED is an REDACTED-year-old girl whose disability, for the purposes of the IDEA, is classified as emotional disturbance. Ex. B at 1.
2. REDACTED experiences an emotional disturbance which includes an REDACTED component. Tr. 72. She struggles with attending to classroom instruction, completing tasks in both the classroom and in an individual setting, and academics. Tr. 101; Ex. B at 2. She will “shut down” and refuse to do classwork. Tr. 107; see also Ex. B at 3-4. She requires teacher redirection to complete tasks. Ex. B at 3.
3. REDACTED performs below grade level in reading decoding and comprehension and math computation and math concepts. Exs. B at 3, E, F at 1-2.
4. REDACTED’s emotional needs and her REDACTED impede her learning; and she does not participate in class due to her REDACTED. Ex. B at 3-4.
5. REDACTED was enrolled in REDACTED REDACTED for preschool and continued at the school for kindergarten, first grade, and, during the 2022-2023 school year, REDACTED grade. Tr. 71, 97; Exs. E, F. REDACTED REDACTED is a general education REDACTED school. Tr. 100.
6. The CSE convened on October 14, 2021, and developed an IESP for REDACTED. REDACTED’s father participated in this meeting. Tr. 73; Ex. B at 1, 11.
7. The IESP includes goals in the areas of reading decoding, sight words, vocabulary, and counseling (coping with emotions and social interaction). Ex. B at 6-7.
8. The IESP recommended that REDACTED receive three periods per week of SETSS as a direct group service and counseling, one 30-minute session per week individually and one 30-minute session per week in a group. Ex. B at 8.
9. REDACTED’s father agreed with these services. Tr. 73.
10. The Department did not provide the services to REDACTED, so REDACTED’s father conferred with personnel at REDACTED’s school, who recommended REDACTED as an agency to provide the IESP services to REDACTED. Tr. 74.
11. REDACTED supplies educational and/or related services providers to students with Department services’ “mandates.” Tr. 95-97.
12. REDACTED’s parents entered into an agreement with REDACTED to provide SETSS to REDACTED; REDACTED’s mother signed the contract. Tr. 74-75, 81; Ex. C.
13. The contract is dated July 1, 2022. The contract obligates REDACTED’s parents to pay for any services that REDACTED provides to REDACTED for which the Department does not pay. The contract does not specify the services to be provided, the frequency or duration of those services, or the hourly rate REDACTED’s parents are obligated to pay for any services provided—other than to specify that REDACTED will charge “enhanced market rates.” Ex. C. The contract does not define “enhanced market rates.” Ex. C.
14. REDACTED has not forwarded any bills or invoices to REDACTED’s parents. Tr. 76, 169.
15. REDACTED’s father understands that he is financially obligated to pay for the services that REDACTED provides to REDACTED, but he did not know the rate that REDACTED would charge him for the services. Tr. 76, 80, 82.
16. REDACTED provides REDACTED with three hours per week of SETSS services. Tr. 97-98, 161, 210; Exs. L, M. These services commenced on October 24, 2022. Tr. 98, 208; Ex.
M at 1.
17. The SETSS are provided at REDACTED’s school, as mainly a pull-out service. Tr. 211, 214-215; Ex. G at ⁋ 7.
18. REDACTED does not provide any related services to REDACTED. Tr. 100.
19. The SETSS provider employed by REDACTED to provide SETSS to REDACTED is a New York State certified special education teacher. Tr. 98; Ex. K.
20. REDACTED’s supervisor of the SETSS provider has masters’ degrees in special education and in counseling, and a graduate certificate in behavior analysis. Tr. 95. She is also a New York State certified special education teacher. Ex. G at ⁋ 3.
21. The supervisor testified that she observes REDACTED at school, confers with REDACTED’s SETSS provider, assists REDACTED’s SETSS provider with specific academic strategies to utilize with REDACTED to work on her goals, and reviews the SETSS provider’s weekly session notes of her work with REDACTED.[2] Tr. 97-99, 125-126.
22. The SETSS provider and the SETSS supervisor developed goals for REDACTED. Tr. 108, 114; Ex. F.
23. The SETSS provider administered informal assessments to REDACTED at the beginning of the school year. Tr. 112, 128-129; Ex. E.
24. The SETSS provider collaborates with the classroom teacher daily as to which goals and what material the SETSS provider will work on with REDACTED. Tr. 108.
25. The SETSS provider generally provides SETSS to REDACTED in a group setting with another student (who is also a student on the SETSS provider’s case load). Sometimes, when REDACTED is experiencing REDACTED, the SETSS provider will work with REDACTED individually.[3] Tr. 211-213, 215. 221.
26. The SETSS provider testified that she works with REDACTED mainly on math, with reading work incidental and relating to reading math word problems. Tr. 226. 228-229; see also Ex. N (“Session Notes” describing REDACTED’s math instruction; minimal references to reading and writing). [4]
27. The SETSS provider works with REDACTED on math during every SETSS session because math is REDACTED’s main area of difficulty. The SETSS provider pulls
REDACTED out of class to work on math. Tr. 102, 137.
28. At the beginning of the school year, REDACTED struggled with counting single digit numbers; the SETSS provider works with REDACTED on breaking math processes into small steps and using repetition and flashcards to teach addition. REDACTED has learned to add and subtract single and double digit numbers; and with prompting and support is adding three digit numbers. She also works on addition and subtraction with regrouping.
She is also demonstrating more independence with addition and understanding math terms and using a number line. Tr. 105-106, 226-227; Exs. E, F at 1-2.
29. At the beginning of the year, REDACTED was assessed at Fountas and Pinnell level D (kindergarten-first grade). According to the SETSS supervisor, the SETSS provider has been working with REDACTED on goals for reading fluency, reading accuracy, reading decoding (specifically CVC words), reading comprehension (focusing on main idea, characters and sequencing), and spelling; and REDACTED has made progress. The SETSS provider did not corroborate this testimony. 5 Tr. 102-105, 122-123; Exs. E, F.
REDACTED is now on a Fountas and Pinnell level G in reading fluency and accuracy and scores higher on reading comprehension. Tr. 105; Ex. G at ⁋ 10. I find, based upon the testimony of the SETSS provider, that she works on literacy incidentally to math instruction and that REDACTED’s progress in reading should not be linked to SETSS provided by REDACTED.
30. The SETSS supervisor contended that she and the SETSS provider are working with REDACTED and engaging REDACTED’s mother with strategies to address REDACTED’s non-compliance at school. These strategies include reflective listening, showing REDACTED that her emotions are valued, and praise and encouragement to motivate her and build her confidence. Tr. 107-108.
31. The SETSS provider has informed REDACTED’s father of REDACTED’s progress this school year. Tr. 79-80.
32. REDACTED charges $195.00 per hour for SETSS services. Tr. 162; Ex. D at ⁋ 8.
33. The financial administrator of REDACTED explained, in a conclusory manner, that the $195.00 per hour rate is “consistent with rates charged by other agencies for similar services” and is required “to cover the [agency’s] budget.” Tr. 162; see also Ex. D at ⁋ 7.
34. REDACTED pays the SETSS provider $77.00 per hour plus the “fringe benefits” of Social Security and Medicare taxes, for a total of $90.00 per hour. Tr. 163, 234-235.
35. REDACTED bills at that same rate for one-to-one and group services; and bills separately for each student at the $195.00 per hour rate. Tr. 175, 237, 239.
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 is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew 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). The school district must then implement the IEP. 8 N.Y.C.R.R. 200.4(e)(1), (3).
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. What is the applicable legal analysis in this case, which involves a student parentally placed in a nonpublic school?
In the instant case, I must 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) (emphasis added). “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, Office of State Review Appeal No. 21-
245 at pp. 10-18 (description of districts’ responsibilities under § 3602-c and interplay with IDEA); Application of a Student with a Disability, Office of State Review Appeal No. 20-094; Application of a Student with a Disability, Office of State Review Appeal 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).
Section 3602-c creates rights for parentally-placed students in New York that do not exist in federal law. See, e.g., Bayshore Union Free Sch. Dist., 14 N.Y. 3d 289; New York State Education Department, Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c September 2007 (“Guidance Document”); Application of a Student with a Disability, Office of State Review Appeal No. 22-046; Application of a Student with a Disability, Office of State Review Appeal No. 21-245; Application of a Student with a Disability, Office of State Review Appeal No. 20-094; Application of a Student with a Disability, Office of State Review Appeal No. 20-087. The message is clear: students with disabilities who are parentally-placed in nonpublic schools “must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program.” Guidance Document at Attachment 1, p. 11 (emphasis added).
The State Review Officer has looked to the principles of the Burlington/Carter line of cases to analyze parents’ claims for payment for services secured by parents for their children who are parentally-placed in nonpublic schools. See, e.g., Application of a Student with a Disability, Office of State Review Appeal No. 22-046 at 9-10. Under the principles of Burlington and Carter, 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). The fact that the school or services selected by the parents are not approved by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement or other funding for services. See Florence County School District v. Carter, 510 U.S. 7 (1993). As a result, I proceed with the following analysis.
Here, the Department did not take any evidentiary steps to defend its IESP for REDACTED and/or otherwise demonstrate that the services set forth in that document met REDACTED’s special educational needs. And, furthermore, the undisputed evidence demonstrates that the Department did not implement the IESP that it had developed for REDACTED. As a result, the Department failed to meet its evidentiary burden. At this juncture, the Burlington/Carter analysis, as applied by the State Review Officer to parental requests for funding for services for their children parentally placed in nonpublic schools, proceeds with consideration of the appropriateness of the parentally obtained services and equitable factors. Do the SETSS services provided by REDACTED address REDACTED’s special educational needs?
REDACTED’s parents have the burden of proof regarding the appropriateness of the SETSS services that they secured for REDACTED. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85. The standard of proof is a preponderance of the evidence.
To meet the above burden, REDACTED’s parents must show that the educational services they secured for REDACTED address her identified special education needs. See C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of a Child with a Disability, Appeal No. 22-046 at pp. 9-10. The Second Circuit instructs that:
No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs . . . . To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.”
Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist.
v. D.M., 831 F. App’x 29 (2d Cir. 2020) (Summary Order). Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3.
As stated in the Findings of Fact, I discount the testimony of the REDACTED supervisor and credit the testimony of the REDACTED SETSS provider. The preponderance of the evidence demonstrates that the SETSS provider is addressing, and meeting, REDACTED’s needs in math. The SETSS provider explained the work she does and the teaching methods and strategies she uses to teach REDACTED math, and REDACTED is clearly benefiting from that instruction and making progress. See ⁋⁋ 26-28. As to the SETSS provider’s only incidental work with REDACTED in reading: REDACTED is making progress in reading despite the SETSS provider’s focus on math instruction; if REDACTED is benefitting from classroom instruction in reading, then she does not need SETSS support for reading. As a result, the SETSS services meet the Second Circuit’s “totality of the circumstances”/instruction “specially designed to meet the [child’s] unique needs” standard by the preponderance of the evidence. Does the balance of the equities favor REDACTED’s parents?
With respect to the third Burlington criterion, whether equitable considerations support REDACTED’s parent’s claims, the evidence establishes that REDACTED’ parents cooperated with the CSE by attending the CSE meeting, communicating with Department personnel about their concerns, and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district). “Important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014). There is no indication in the record that REDACTED’s parents impeded the Department’s efforts to offer REDACTED a FAPE.
Furthermore, under a Burlington/Carter analysis, services which are determined as reimbursable or fundable are 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.” Application of a Student with a Disability, No. 21-245 at p. 17 (emphasis added). In short, for direct funding, as requested in this case, there must be proof of both the parents’ legal obligation to pay for services provided to their child and their inability to pay for those services. 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); Application of a Student with a Disability, No. 22-88 at pp. 11-12; but see Ferreira v. New York City Dep’t of Educ., 22 Civ. 4993 (S.D.N.Y. March 14, 2023) (parents need not demonstrate inability to pay).
(a) Do REDACTED’s parents have a legal obligation to pay REDACTED for services it provides to REDACTED?
In the instant matter, the agreement that REDACTED’s parents entered into with REDACTED obligated them to pay for services that REDACTED provided to REDACTED if the Department does not pay for the services. The agreement is poorly worded and is missing important terms (such as the cost of the services, the services to be provided, and the number of hours of services). Furthermore, REDACTED appears not to have otherwise informed REDACTED’s father of the cost of services because REDACTED’s father does not know the services’ rate he is obligated to pay REDACTED in the event that he must pay REDACTED. See ⁋⁋ 13-15 above. However, the one term the document is clear about is REDACTED’s parents’ obligation to pay. It is not within my purview as a hearing officer, however, to render a decision about the enforceability of this contract.
(b) Are REDACTED’s parents unable to pay REDACTED for services it provides to REDACTED, and is such an analysis required in light of recent Southern District precedent?
The proof of “inability” to pay is nonexistent (tax returns would be advisable), and it is concerning that REDACTED’s parent has not paid anything to date for services from REDACTED. However, there is a recent decision from the Southern District, which is precedent controlling in this matter, holding that proof in inability to pay is not necessary. See Ferreira v. New York City Dep’t of Educ., 22 Civ. 4993 (S.D.N.Y. March 14, 2023). Thus, an analysis and a ruling on REDACTED’s parents’ inability to pay is neither necessary nor appropriate.
(c) Are there other equitable issues that might serve to reduce funding in this proceeding?
The equitable issues in this case focus the nature of service delivery and the costs of services:
Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable.
See Carter, 510 U.S. at 16.
The inconsistencies found in the SETSS supervisor’s testimony when compared to the testimony of the SETSS provider is concerning and resulted in the discounting of the testimony of the SETSS supervisor. The inconsistencies also call into question: (1) the actual extent of the services provided by the SETSS supervisor for REDACTED and (2) the benefits to REDACTED of any services that the SETSS supervisor might provide. In addition, REDACTED is providing direct SETSS services to REDACTED mainly in a group setting, which is permissible and appropriate under the IESP. However, REDACTED bills for such services as if the services were provided individually, resulting in multiple charges for the same time period of services’ provision. I draw two conclusions from these facts: (1) the Department should not fund the costs of the SETSS supervisor because her function with respect to REDACTED is superfluous and (2) the Department should fund REDACTED’s SETSS services at a “group” rather than individual rate. The Supreme Court has given me broad discretion to fashion equitable relief, and I utilize that discretion in this case to: (1) reduce REDACTED’s $195.00 hourly to $100.00 per hour to account for the removal of the costs of the SETSS supervisor and (2) order that the Department pay for REDACTED’s SETSS services at a reduced “group” rate of 50 percent, resulting in an hourly rate of $50.00 per hour for REDACTED’s SETSS provided by REDACTED.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered that:
The Department shall fund up to three periods of SETSS per week provided by REDACTED to REDACTED during the 2022-2023 school year at the rate of $50.00 per hour.
SO ORDERED.
DATED: April 2, 2023
Jean Marie Brescia, Esq.
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’S EXHIBITS
A. Impartial Hearing Request 09/29/2022 6 pages
B. CSE IESP 10/14/2021 11 pages
C. Parent Agreement 07/01/2022 3 pages
D. Financial Affidavit 02/15/2023 2 pages
E. Assessment Report 11/17/2022 1 page
F. Progress Report 01/30/2023 4 pages
G. Supervisor Affidavit 02/15/2023 3 pages
H. Intake Form 07/01/2022 1 page
J. Provider Hourly Rate 03/09/2023 1 page
K. Certificates List 03/01/2023 1 page
L. Schedule SY 2022-2023 03/09/2023 1 page
M. Invoices 02/02/2023 4 pages
N. Session Notes 03/09/2023 5 pages
IHO EXHIBITS
I. Department Memorandum of Law January 20, 2023 11 pages IHO
II. Parent’s Memorandum of Law February 1, 2023 7 pages IHO
DEPARTMENT OF EDUCATION EXHIBIT
1. Signed Subpoenas March 1, 2023 3 pages DOE
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.”
[2] The SETSS provider is a New York State certified special education teacher. It is unclear why she needed this level of supervision.
[3] The REDACTED supervisor testified that REDACTED’s SETSS was generally provided individually, and sometimes provided in a group. I find that the testimony of the SETSS provider as to this issue is more reliable.
[4] According to the SETSS supervisor, REDACTED’s SETSS provider focuses on both math and literacy with REDACTED. Tr. 98. Again, I credit the SETTS provider’s testimony because the SETSS provider is the individual working with REDACTED regularly and consistently on a weekly basis. 5 See paragraphs 26 and 27 above.