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CASE NUMBER: 595048- NYC: 244918
FINDINGS OF FACT AND DECISION
Student's Name: REDACTED
Service District: REDACTED
Impartial Hearing Officer: Ginger James
Date of Filing: January 17, 2023
Hearing Requested by: Parent
Date of Hearing: April 20, 2023
Record Close Date: May 16, 2023
Date of Decision: May 17, 2023
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 28, 2023
For the Student:
REDACTED, Esq., Parent's Attorney #1
For the Department of Education:
REDACTED, District Representative
Observing Settlement Officer:
REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 21, 2023
For the Student:
REDACTED, Esq., Parent's Attorney #1
For the Department of Education:
REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 27, 2023
For the Student:
REDACTED, Esq., Parent's Attorney #2
For the Department of Education:
No appearance
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 20, 2023
For the Student:
REDACTED, Esq., Parent's Attorney #3
REDACTED, Educational Director of Provider Agency
For the Department of Education:
REDACTED, District Representative
BACKGROUND AND POSITIONS OF THE PARTIES
Parent,[1] through counsel, filed a Due Process Complaint ("DPC") on or about January 17, 2023.
Parent alleges that the Department of Education ("DOE" or "District") failed to provide Student a free appropriate public education ("FAPE") on an equitable basis for the 2022-2023 school year. Specifically, Parent alleges that, for the 2022-2023 school year, the District failed to implement the services contained in an Individualized Education Services Program ("IESP") dated December 16, 2021 ("the December 2021 IESP") (Ex. A; Tr. #3 56, 62, 77). [2]
Regarding relief sought, at the outset, Parent invoked pendency (Ex. A-2; PHC Tr. 9-10; 16-17; Tr. #3 51-53).[3] Regarding final relief, Parent seeks an award consisting of funding of Special Education Teacher Support Services ("SETSS") to be provided in a group five periods per week to be administered in English (Ex. A-2; PHC Tr. 7; Tr. #3 56, 62, 77; Ex. D; Ex. E-3, 4). Parent seeks an order requiring the District to fund the SETSS by issuing payments to providers of Parent's choosing at a "reasonable market rate" (Ex. A-3; PHC Tr. 7-9, 10; Tr. #3 56, 62, 77-78; Ex. D-2).[4] Additionally, Parent seeks attorney's fees and expenses and any other relief that may be just and proper (Ex. A-3).
In light of the foregoing and as more fully discussed below, I find that the District failed to provide Student a FAPE on an equitable basis for the 2022-2023 school year, and that the relief Parent seeks is appropriate. However, I am diminishing the number of hours the District is to fund to account for Parent's failure to provide timely Ten Day Notice ("TDN"). I also decline to award attorneys' fees and expenses.
PROCEDURAL HISTORY
As of January 17, 2023, the date of the filing of the DPC, Student was attending "Private School" for their REDACTED grade year (Ex. A-1; Ex. B-3).
After the filing, the Resolution Period began. It ended on February 16, 2023, with the District failing to conduct a resolution meeting and making no resolution offer.
On January 17, 2023, I was appointed as Impartial Hearing Officer ("IHO") to preside over this matter.
On February 28, 2023, Parent's Attorney #1 and District Representative met with a Settlement Officer for a Settlement Conference and thereafter appeared before me for a Pre-Hearing Conference ("PHC").[5] Parent's Attorney #1 explained that the District had made an offer when the case had been pending previously, and Parent's Attorney #1 and District Representative requested time to discuss settlement (PHC Tr. 4-7).[6] I proceeded with the PHC, including clarifying that although Parent had requested reimbursement at the "provider's prevailing rate," Parent would be "amenable" to an order directing funding at "a reasonable market rate," and that the District would prefer that I order an actual rate in the FOFD (PHC Tr. 7-9, 10). I scheduled the Due Process Hearing ("DPH") for March 21, 2023 with the understanding that they would inform me if settlement was likely (PHC Tr. 11-16). I informed Parent's Attorney #1 and District Representative that I would conduct a Pendency Hearing immediately prior to the start of the DPH (PHC Tr. 16). District Representative objected to a "formal order," stating that Parent is not entitled to pendency pursuant to New York State ("NYS") Educ. Law § 3602-c (PHC Tr. 9-10), and I informed them that they could submit their positions in writing the day of the hearings should they wish to do so (PHC Tr. 16-17).
On March 21, 2023, Parent's Attorney #1 and District Representative appeared for commencement of the DPH. The District had not conveyed an offer to Parent (Tr. #1 24). In anticipation of proceeding to hearing, Parent's Attorneys' Firm emailed their disclosure to the District's CSE email address (Tr. #1 25-27). However, they failed to include District Representative's email address on that chain (Tr. #1 25-27). I rescheduled the DPH for March 27, 2023 at 11:00 a.m., to give the representative time to review the documents (Tr. #1 27-28).
On March 27, 2023, at 11:00 a.m., Parent's Attorney #2 appeared for the DPH. District Representative did not appear. After receiving no response to emails I sent to District Representative, Parent's Attorney #2 and I appeared on the record (Tr. #2 36-37). Over the objection of Parent's Attorney #2, I did not conduct the DPH and rescheduled it for April 20, 2023 (Tr. #2 39-43). I also granted Parent's Attorney #2's request to extend the compliance date (Tr. #2 37-39), and in light of the delay, offered to try to resolve pendency by email (Tr. #2 38, 43).
On April 20, 2023, Parent's Attorney #3 and District Representative ("the Parties") appeared virtually for the Pendency and the Due Process Hearings. After an off-the-record conversation, Parent's Attorney #3 withdrew their Firm's objection made at the prior appearance and consented to proceed to hearing (Tr. #3 49-50). I immediately conducted the Pendency Hearing, accepting into evidence without objection, Parent's Exhibits A-C (Tr. #3 51-52). District Representative took "no position" on pendency (Tr. #3 52-53). Turning to the DPH, District Representative stated that they were not proffering witnesses or exhibits (Tr. #3 57, 58). District Representative conceded that the District did not implement the requested services, and explained that "[t]he issue from our perspective is the rate at which the services should be ordered" (Tr. #3 57, 58). District Representative asserted that a reasonable rate for services is $175 per hour, and not the $197 per hour requested by Parent (Tr. #3 57). For those reasons, the representative stated they would not seek to cross examine Parent, but would cross-examine the provider (Tr. #3 57). Parent's Attorney #3 submitted Exhibits A through G, which included affidavits by Parent (Ex. D) and Educational Director of Provider Agency ("Director") (Ex. E) (Tr. #3 59-61). District Representative had no objection to their introduction, and I admitted all into evidence (Tr. #3 61). After confirming that they were not seeking to cross-examine Parent (Tr. #3 61-62), District Representative presented an opening statement (Tr. #3 62), followed by Parent's Attorney #3 (Tr. #3 62-63). Director testified through affidavit and live questioning (Ex. E; Tr. #3 66-75). District Representative presented a closing statement (Tr. #3 76-77), followed by Parent's Attorney #3 (Tr. #3 77-78). I granted the Parties' request to extend the compliance date (Tr. #3 78-79).
FINDINGS OF FACT
After a full review of the record generated at the hearing, I make the following findings of fact and determinations. Unless otherwise noted, none of the facts are contested in this matter.
On December 16, 2021, during Student's 7th grade year, the Committee on Special Education ("CSE") convened to consider Student's eligibility for special education and related services (Ex. B-1, 3). The CSE identified Student as a Student with a Learning Disability, presenting with various weaknesses (Ex. B-1; Tr. 73). On the Wechsler Intelligence Scale for Children- Fifth Edition ("WISC-V"), Student scored in the "Low Average" range on the full, fluid reasoning, working memory and verbal comprehension scales (Ex. B-2). Student was assessed at the 2nd grade level in reading comprehension and spelling, the 3rd grade level in letter and word recognition and math concepts and the 4th grade level in math computation (Ex. B-2, 3). Student was assessed on grade level only in writing fluency (Ex. B-2, 3). Parent expressed concerns that Student was delayed in reading, writing and math, and struggled with focusing and memorization (Ex. B-3). The CSE determined that Student could benefit from small group remediation in reading and math, and Parent agreed (Ex. B-3, 4). The CSE developed an IESP recommending SETSS to be provided in a group five periods per week to be administered in English (Ex. B-7). The CSE also recommended various testing accommodations, including extended time, revised directions, reading tests aloud, prompting and breaks (Ex. B-8). Student and Parent reside in New York City and Student is attending Private School for the 2022-2023 school year (Ex. A). Private School is located within the geographic boundaries of the DOE.
As the District had not implemented any services for Student, Parent attempted to locate a SETSS provider by calling independent providers found on a list on the District's website (Ex. D-1). None of those providers were available to administer services to Student (Ex. D-1). Accordingly, Parent contacted Provider Agency (Ex. D-2). [7]
On September 5, 2022, Parent, through Parent's Attorney, sent the District a TDN (Ex. C; Ex. D-2). Pursuant to the TDN, Parent "consent[ed] to all services recommended on [the December 16, 2021] IESP being implemented by the DOE" (Ex. C-2). Parent further relayed that they were unable to locate SETSS and related service providers to administer services at the District's "standard rate," and therefore, Parent would implement the IESP on their own and seek reimbursement or direct payment from the District (Ex. C-2; Ex. D-2). Parent asked the District to respond if the District had any alternative options (Ex. C-2). The District failed to respond (Ex. D-2).
Provider Agency has been providing, and is able to continue to provide, five hours of SETSS to Student for the 2022-2023 school year (Ex. D-2; Ex. E-3; Tr. #3 67). Although Provider Agency is administering the five hours because that is what is recommended on the IESP (Tr. #3 67-68), the Agency "deviates" from the IEP in other areas if they deem it necessary (Tr. #68). For example, the Agency may create different goals for the student "to best address the need[s] of the student" (Tr. #3 68). They also may deviate from an IESP recommendation of group services if the Agency determines that a 1:1 setting is "the way the student is best able to learn, and if that's what the student requires to make progress" (Tr. #3 68). Here, although the CSE recommended that Student receive group SETSS, they are being provided in a 1:1 format (Ex. B-7; Ex. E-4; Tr. 69). Provider Agency considered Student's age, learning style, difficulty focusing, and need for privacy in determining that Student required a 1:1 setting to keep Student motivated and to ensure Student makes progress (Tr. #3 69, 73-74). Additionally, for Student to be placed in an appropriate group, the group would need to consist of students on the same grade level and with the same learning style (Tr. #3 69). Provider Agency determined Student's needs and learning style by: conducting a Fountas and Pinnell literacy assessment; speaking with the family; conferring with Student's school, including its teachers and administrators; meeting with Student; and observing Student in the mainstream setting (Tr. #3 69-70, 72).
Provider Agency is administering Student's SETSS at Private School (Ex. E-4). Student's SETSS are provided by Direct Provider who is certified by NYS to teach students with disabilities from birth through 2nd grade and from 1st through 6th grades (Ex. E-3; Ex. G). The provider is also trained to teach literacy and comprehension to school-aged children and adolescents (Ex. E-3). Direct Provider is modifying class material so that Student can take class examinations (Tr. #3 74). The modifications include using multisensory materials and creating learning experiences for Student outside of the classroom (Tr. #3 74). Provider mainly works with Student on reading comprehension and literacy, particularly fluency (Tr. #3 74-75).
In addition to providing 1:1 service to Student, Direct Provider prepares for sessions, creates goals, writes progress reports and meets with teachers and parents (Ex. E-4). Provider Agency creates goals for Student by reviewing the IEP and various assessments (Ex. E-4; Tr. #3 73). The providers select goals in every needed domain and ensure that the goals are aligned with NYS common core standards (Ex. E-4; Tr. #3 73). The goals help inform lesson plans and the student's progress (Tr. #3 73). Student's progress is measured through quarterly assessments, meetings between Direct Provider and staff, direct observations and daily session notes (Ex. E-4). Student is making progress with SETSS (Ex. E-4).
An Educational Supervisor oversees Direct Provider's work (Ex. E-3). Educational Supervisor is a certified bilingual REDACTED special education teacher and a certified teacher's coach (Ex. E-5). The supervisor possesses 20 years of experience in the fields of education and learning disabilities (Ex. E-3). Educational Supervisor's primary focus is cognitive modifiability, but they are trained in various programs and approaches, including Lindamood-Bell Learning Processes and Social Thinking (Ex. E-3-4).
Provider Agency charges $197 per hour for SETSS (Ex. E-2; Tr. #3 70). Of the $197, the Agency pays Direct Provider $100 (Tr. #3 70). The rate paid to Direct Provider would "[v]ery possibly" be lower if the SETSS were provided in a group setting (Tr. #3 70). It is unknown if each parent in a group would be charged $197 per hour because it would depend upon "the scenario or the size of the group, the students involved, [and] the student's needs" (Tr. #3 71). The remainder of the rate funds: educational resources and support; professional development and materials; employment taxes; and administrative and overhead costs (Ex. E-1).[8] It also funds 1:1 supervision to assist with curriculum development, "fine tuning the needs of the students," monitoring the students' progress, working with the families and working with the school (Ex. E-1; Tr. #3 71). The supervisor earns an annual salary (Tr. #3 71).
On July 10, 2022, Parent signed a contract stating that it is Parent's "responsibility to pay any balance of any fee that is not covered by the NYC Department of Education (DOE) prospective payment" (Ex. F-3). The contract does not state the services that are to be provided or the rate for any service, but states that Parent is aware of the schedule of fees (Ex. F-3). Parent seeks direct funding as it would be an "extreme financial hardship" for Parent to pay for the services (Ex. D-2).
LEGAL STANDARDS AND FRAMEWORK
FAPE
The IDEA provides that children with disabilities are entitled to a FAPE. See 20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student's unique needs, provided in conformity with a comprehensive written Individualized Education Program ("IEP"). See 20 U.S.C. § 1401(9). A school district has offered a student a FAPE when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
Dual Enrollment
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs. See 20 U.S.C. § 1412(a)(l)(A); Educ. Law § 4402(2)(a), (b)(2). The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools. See 34 C.F.R. § 300.137(a). Under State law, however, parents who have privately enrolled their child in a nonpublic school may 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. See Educ. Law § 3602-c(2). 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]." Educ. Law § 3602-c(2)(b)(l).
Burden of Proof
Under the IDEA and the NYS 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. See 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. 21-101, 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-of-pocket educational expenses). Accordingly, I first must determine whether the District met its burden to demonstrate that its offered program was reasonably calculated and implemented to provide this Student with educational benefits.
The District conceded that it failed to provide Student a FAPE on an equitable basis for the 2022-2023 school year. During the preliminary portion of the DPH, District Representative stated, "we are conceding that we did not implement the requested services" (Tr. #3 57), and confirmed that the "provision . . . of a FAPE pursuant to equitable services" was a "non-issue" (Tr. #3 58). District Representative reiterated their position during their opening statement (Tr. #3 62) and their closing statement (Tr. #3 76).
Additionally, I find that the District failed to provide Student a FAPE on an equitable basis by failing to implement the services listed in the December 2021 IESP. By failing to implement those services, the District effectively left Student with no special education or related services, causing Parent to seek the recommended services themselves. Student has been identified as a Student with a Learning Disability, presenting with significant delays in a variety of areas (Ex. B-1, 2, 3, 4; Ex. D-1; Tr. #3 73). Student scored in the "Low Average" range on the full, fluid reasoning, working memory and verbal comprehension scales on the WISC-V (Ex. B-2), was assessed at the 2nd to 4th grade levels in various math, reading and writing skills (Ex. B-2, 3), and struggles with focus and memorization (Ex. B-3). Both Parent and the CSE agreed that Student could benefit from small group remediation in reading and math (Ex. B-3, 4), which is what the recommended SETSS were designed to target. Student requires this extra assistance to remain in a "mainstream placement" and is making progress with SETSS (Ex. D-1; Ex. E-4).
The implementation of IESP services falls on the district of location insofar as "boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent." Educ. Law § 3602-c(2)(a). The CSE must "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." Educ. Law § 3602-c(2)(b)(1). Additionally, section 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404.
The DOE had the obligation to provide services to Student in conformity with the IESP. See Educ. Law§ 3602-c(2)(a), (b)(l). In failing to do so, the DOE failed to provide Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district. More than that, it has been held that the Department may not effectively compel a parent to resort to self-help in obtaining a SETSS provider. See e.g., Application of a Student with a Disability, Appeal No. 21-101. 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" (id.), and a violation of State law. 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.
REMEDIES
The remedy for a school district's failure to provide appropriate equitable services required under Education Law § 3602-c is similar to the remedy for a school district's failure to provide appropriate services under the IDEA. 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). Under the IDEA, courts can "grant such relief as the court determines is appropriate," limited only by the restriction that "the relief is to be appropriate in light of the purpose of the Act." Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA (see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 [2d Cir. 2002]), "a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies" (Doe v. East Lyme Bd. of Educ., 790 F.3d at 454).
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." 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). Because Parent had to find a provider on their 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 paid directly 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." 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"). In determining whether a provider agency's rates are reasonable and appropriate under the circumstances, various factors have been found relevant, including: the provider's explanation of the rate, including its costs and the qualifications of its instructors (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"]); the value that specialized certification, such as a bilingual extension, adds to instruction (Application of a Student with a Disability, Appeal No. 21-183 [approving compensatory SETSS by a bilingual reading specialist at a rate not to exceed $200 per hour]); and the parent's efforts to locate a DOE-approved SETSS provider from a list provided by the District to the parent (Application of a Student with a Disability, Appeal No. 21-096). Additionally, one must look to whether the parent directly paid the provider or is contractually obligated to pay the provider in the event the District is not ordered to fund SETSS at the requested rate. See e.g. 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"). Ultimately, in light of these factors, I must determine whether the requested rate is unreasonable. See e.g., Application of a Student with a Disability, Appeal No. 21-138 (determining that "there is no basis for a finding that the rate of $175 was unreasonable"). Finally, I will consider when Parent notified the District of the enhanced rate claim as this establishes the first date upon which the District would have had an opportunity to modify its offered rate for SETSS in light of Parent's claims. 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 C.F.R. § 300.148[d][1]). Provider Agency's rate is $197 per hour for SETSS (Ex. E-2; Tr. #3 70). District Representative maintained throughout the hearing that the only issue in this matter is the rate sought. At the start of the proceeding, after conceding that the District failed to implement the SETSS, District Representative stated, "[t]he issue from our perspective is the rate at which the services should be ordered," suggesting a rate of $175 per hour as an appropriate rate (Tr. #3 57). Homing in on the issue, the representative asserted that "the issues get even narrower than that because when [sic] we agree that the student is entitled to the services and that the services that the parent is seeking are appropriate for this student. . . it narrows down to just the issue of the rate" (Tr. #3 59). In their opening statement, District Representative reiterated that the "sole issue from the District's perspective is the rate at which the parent and/or agency is to be paid for the services," and that $175 per hour is appropriate (Tr. #3 62). Finally, in their closing statement, District Representative contended that Student is entitled to the services and that there was "no question that [Director] has knowledge of [Student] and [their] learning. And the issue is solely at what rate is the agency to be reimburse[d] . . ." (Tr. #3 76).
Although at the time the DPC was filed, Parent sought funding for SETSS at Provider Agency's "prevailing rate," Parent has since modified their request to funding at a "reasonable market rate" (Ex. A-3; PHC Tr. 7-9, 10; Tr. #3 56, 62, 77-78; Ex. D-2). [9]
The District did not put forth any evidence to prove that $175 per hour is reasonable and/or that $197 per hour is unreasonable. District Representative cross-examined Direct Provider about their rate, including whether parents each would be charged the same rate of $197 if services were administered in a group, whether a direct provider would be paid less if administering services in a group, and the breakdown of what the remainder of the rate funds after paying the direct provider (Tr. #3 70-72). Although all of that information is helpful to understanding the rates and what they fund, it does not prove that the rate of $197 per hour is unreasonable. Ultimately, in keeping with Parent's request, I find that the District should fund the SETSS at a "reasonable market rate" and I further find that the rate should not exceed $197 per hour.
I base my finding that "a reasonable market rate" is warranted on the following facts. First, although the CSE recommended that Student receive group SETSS, I do not find that 1:1 services are unreasonable in this matter. Provider Agency considered Student's age, learning style, difficulty focusing, and need for privacy in determining that Student required a 1:1 setting to keep Student motivated and to ensure Student makes progress (Tr. #3 69, 73-74). Provider Agency determined Student's needs and learning style by reviewing the IEP and a literacy assessment, and by meeting with multiple people involved in Student's education (Tr. #3 69-70, 72). Student also has significant learning challenges, including being assessed as low as the 2nd grade level in reading comprehension and spelling, the 3rd grade level in letter and word recognition and math concepts and the 4th grade level in math computation (Ex. B-2, 3). Additionally, an appropriate group is not available in which to place Student (Tr. #3 69).
Second, although I find that Direct Provider is not certified to teach Student's grade level (Ex. E-3; Ex. G), I find that the provider is trained to teach literacy and comprehension to school-aged children and adolescents (Ex. E-3), and is providing instruction tailored to Student's needs (Tr. #3 74-75). Moreover, I find that Direct Provider is supervised by a highly qualified supervisor (Ex. E-3-4) and that Student is making progress (Ex. E-4).
Third, I find that Parent attempted to secure a SETSS provider by calling independent providers found on a list on the District's website, but that none were available to administer services to Student (Ex. D-1).
Fourth, I find that Parent is contractually obligated to pay Provider Agency in the event the District is not ordered to fund SETSS at the requested rate (Ex. F-3).
Accordingly, in the absence of evidence to prove that $197 per hour is unreasonable, and in light of Parent's request for reimbursement at a "reasonable market rate," I am ordering that the District pay Provider Agency "a reasonable market rate" for these services. The "reasonable market rate" is to be consistent with rates that have been paid by the Implementation Unit for comparable individual SETSS within six months of the date of this decision, and is not to exceed $197 per hour.
Finally, I am diminishing the number of hours which must be funded to account for the lateness of the TDN Parent provided to the DOE. On September 5, 2022, Labor Day, Parent sent the District a TDN informing the District that Parent would be seeking funding for services through Provider Agency (Ex. C; Ex. D-2). New York City public school students began school on September 8, 2022.[10] Accordingly, I find that Parent was to have provided the District notice by August 24, 2022, ten business days prior to September 8, 2022. As Parent's TDN was served on September 5, 2022, Parent deprived the District of a full opportunity to remediate any issues raised in that notice. As a school year consists of 36 weeks, and Parent's notice was approximately 1 ½ weeks late, I am ordering that the District find the five hours of SETSS for a period of 34 ½ weeks.
OTHER CONTENTIONS
Parent seeks payment of attorneys' fees and expenses associated with representation in this matter (Ex. A-3). The IDEA does not authorize an administrative officer to award attorneys' fees or other costs to a prevailing party. Entitlement, if any, to costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008; Application of a Child with a Disability, Appeal No. 06-109. Therefore, I would be exceeding the scope of my authority by determining that the Parent is the prevailing party entitled to attorney fees.
Other than the relief set out in my Order below, and my findings detailed in this section of "Other Contentions," I find the Parties' remaining contentions to be unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all of Parent's remaining claims not discussed herein are dismissed with prejudice.
ORDERS
IT IS HEREBY ORDERED THAT the Department of Education ("DOE") shall fund Special Education Teacher Support Services ("SETSS") five times per week to be administered in English by a licensed special education teacher of Parent's choosing at a "reasonable market rate" consistent with rates that have been paid by the Implementation Unit for comparable services for individual SETSS within 6 months of the date of this Order for a period of 34 ½ weeks of the 2022-2023 school year. This "reasonable market rate" shall not exceed $197 per hour; and it is further
ORDERED THAT the DOE shall pay the provider listed above within 15 days of receipt of invoices for services rendered and an accompanying sworn affidavit attesting that the services billed for were provided; and it is further
ORDERED THAT if Parent requests assistance finding a provider to provide the above services at any time, the DOE must locate three providers who are ready, willing, and able to begin providing the services to Student according to the terms of this order. If Parent presents a good faith basis for rejecting the three providers, the DOE must locate two additional providers from which Parent may choose. The DOE shall not be required to identify more than five providers in any given six-month period. Nothing stated here prevents Parent from locating and utilizing a provider of their own choosing; and it is further
ORDERED THAT to the extent such services, as described above, are not utilized by Student by one year from the date of this Order, any remaining services shall expire.
May 17, 2023 (signed electronically)
Ginger James
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.
APPENDIX A- REDACTION IDENTIFICATION PAGE
Redacted Information Term Used In FOFD
REDACTED Student
REDACTED Parent
REDACTED Parent's Attorney #1
REDACTED Parent's Attorney #2
REDACTED Parent's Attorney #2
REDACTED
Parent's Attorneys' Firm
REDACTED District Representative
REDACTED Service District
REDACTED Private School REDACTED Educational Director of Provider Agency
REDACTED Provider Agency
REDACTED Direct Provider REDACTED Educational Supervisor
REDACTED Observing Settlement Officer
APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Due Process Complaint Individualized Education Services Program 01/17/2023 6 pages
B. ("IESP") 12/16/2021 10 pages
C. Ten Day Notice ("TDN") 09/06/2022 2 pages
D. Affidavit of Parent 03/20/2023 2 pages
E. Affidavit of Provider 03/06/2023 5 pages
F. Contract 09/02/2022 2 pages
G. Provider Credentials 12/08/2022 1 page
DOE EXHIBITS
None
IHO EXHIBITS
None
Footnotes
[1] No personal identifying information is contained within the body of this Findings of Fact and Decision ("FOFD"). For personal identifying information, please refer to the attached appendix. Further, this FOFD contains no references to the gender binary. The pronoun "they" is used as needed.
[2] References to the transcript from the Pre-Hearing Conference are denoted "PHC Tr." References to the Due Process Hearing scheduled for March 21, 2023 and March 27, 2023 are denoted "Tr. #1" and "Tr. #2," respectively. References to the Due Process Hearing conducted on April 20, 2023, are denoted "Tr. #3."
[3] I addressed pendency by way of a separate Order issued on May 9, 2023.
[4] In the DPC, Parent's Attorneys' Firm had requested that the SETSS be funded at the "provider's prevailing rate" (Ex. A-3). However, at the Pre-Hearing Conference and the Due Process Hearing, Parent sought "a reasonable market rate" (PHC Tr. 7-9; 56, 62, 77-78; Ex. D-2). Parent's Attorney #2 also withdrew their claim for compensatory hours (Tr. #3 56-57).
[5] Settlement conferences are conducted by an OATH Settlement Officer or OATH IHO not assigned to the case whose purpose is to aid the parties in exploring and facilitating a resolution to the DPC. The substance of the conference is confidential, and the parties are directed to attend with knowledge of the dispute and settlement authority should there be an interest in resolution. Settlement Conferences are not recorded.
[6] On September 8, 2022, Parent's Attorneys' Firm filed the same claims as in this matter. For reasons not germane to the instant proceedings, on December 29, 2022, I issued an Order of Termination without prejudice.
[7] Although Parent testified that they contacted Provider Agency after sending the TDN, Parent had signed a contract with the Agency on July 10, 2022 (Ex. D).
[8] Director was unable to provide a "percentage breakdown" for individual items such as administrative costs and overhead (Tr. #3 71-72).
[9] As discussed at the PHC, the District would prefer that I order an actual rate in the FOFD (PHC Tr. 7-9, 10).
[10] See https://www.schools.nyc.gov/about-us/news//2022-2023-school-year-calendar (last visited May 16, 2023).