New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 607596 - NYC: 254749

FINDINGS OF FACT AND DECISION

Case Number: 254749

Student's Name: REDACTED

District: REDACTED

Scho Hearing Requested By: Parent

R Record Closed Date: April 5, 2024

Hearing Officer: Dora M. Lassinger

The student’s parent requested an impartial hearing on September 6, 2023, seeking implementation, and continuation of the services recommended in an IESP dated December 19, 2022 IESP, during the pendency of due process. Specifically, the parent requested an order awarding the student six periods per week of Special Education Teacher Support Services (“SETSS”) and related services, at an enhanced rate; and compensatory education services. The parent did not challenge the appropriateness of the recommended program. (Par. Ex. A; Tr. p. 35). I was designated to hear this matter on September 8, 2023.

A pendency hearing was scheduled for September 27, 2023. On that date, the parties stated that a pendency agreement had been reached. (Tr. p. 2). The pendency agreement provided that effective September 6, 2023, the student’s pendency program consisted of SETSS six periods per week, group service. (IHO Ex. I).

A hearing on the merits was held on January 30 and March 12, 2024. At the hearing, all claims other than the request for funding for six periods per week of SETSS, at an enhanced rate, were withdrawn. (Tr. p. 134).

Department of Education (“DOE”) Position

The DOE did not present any witnesses at the hearing. (Tr. p. 16). The only evidence received from the DOE was its due process response. (DOE Ex. 1).

At the conclusion of the hearing, the DOE argued that the parent had not demonstrated the appropriateness of the services provided, that the rate requested was not reasonable, and that it should be reduced to $125.00 per hour. (Tr. pp. 128-130).

Parent’s Position

The parent argues that the services being provided through REDACTED (hereinafter “the Agency”) are appropriate; and that the requested rate of $300.00 is in line with an average market rate. (Tr. p. 133).

Evidence at Hearing

On December 19, 2022, the student who is parentally placed in a non-public school, was classified with a Learning Disability and recommended for SETSS six periods per week, direct group service. At the time of the IESP meeting, the student was a REDACTED -grade student, who was reading at a fourth-grade level. Deficits were noted in decoding, comprehension, encoding, vocabulary usage , writing mechanics and grammar. Goals were developed for reading comprehension, vocabulary, math word problems, and for writing, using a graphic organizer. It was noted that the student benefits from multisensory instruction, positive reinforcement and praise, repetition and redirection, and other supports. (Par. Ex. B).

The parent testified, by affidavit, that the DOE did not provide SETSS to her child during the 2023/2024 school year. She stated that she entered into a contract for the services provided by the Agency, and that her daughter has been making progress. She further wrote that she cannot afford to pay $300.00 per hour for the services being provided by the Agency. (Par. Ex. J). She testified that she has not made any payment to the provider. (Tr. p. 51).

On May 9, 2023, the parent signed a notice requesting continuation of special education services from the DOE. (Par. Ex. F).

On July 6, 2023, the parent entered into a contract with the Agency, agreeing to cooperate with the Agency and the DOE in the evaluation, and Impartial Hearing Process to seek payment of services. The contract states the following:

“if the DOE does not pay (the Agency) for provision of these services, I agree it is my responsibility to pay (the Agency’s) rate of $300.00 for SETSS services delivered for the 2023/2024 school year. (Par. Ex. C).

The Agency assigned a provider who is certified to teach up to Grade 6. (Par. Ex.

G, H). The student was in the REDACTED grade during the 2023/2024 school year. (Par. Ex. E).

The parent was referred to the Agency by her daughter’s school. (Tr. p. 40). The Agency also provided SETSS to the student during the 2022/2023 school year. (Tr. p. 41). The parent does not know what rate she is currently required to the pay the Agency; and does not recall what the rate was last year. (Tr. pp. 42-43). She testified that she has not received any bills from the Agency. (Tr. p. 43). She does not know if the Agency has an office; and testified that the contract was mailed to her. (Tr. p. 46).

In a report dated December 10, 2023, the student’s provider described the student’s difficulties in decoding, reading comprehension, recall and connection with previous knowledge, classroom discussions, concrete questions and text-based answers, writing (sentence structure, paragraph writing) spelling and encoding, multi-digit operations, and with math word problems; with her recommendations for addressing all of these areas of deficit. Her recommendations included introducing multisensory learning approaches, visual aids or graphic organizers, study guides, modeling and practicing strategies, encouraging use of editing strategies, introducing computer technologies for editing and a calculator to remove errors from computation, use of a personal vocabulary journal, breaking down multi-digit operations into smaller steps, and use of hands-on activities and manipulatives. (Par. Ex. E).

The clinical supervisor at the Agency, testified that at the start of the 2023/2024 school year, the Agency performed the Fountas and Pinnell assessment for reading, and Brigance for math; and determined that the student presented with deficits in decoding, reading comprehension, writing, vocabulary, multi-digit operations, math word problems, and functional classroom behavior. He stated that services are provided within and outside the classroom, individually and in small group sessions. He wrote that the student has demonstrated progress with the services provided. (Par. Ex. H; Tr. p. 113-117).

He testified that the Agency provides services to many students at the school which this student attends. (Tr. p. 108). At the start of the year, services were provided to the student individually. As of the time of hearing, however, most of her sessions were being provided with one additional student, with some individual sessions continuing, depending upon the students’ needs. (Tr. p. 109). He was not certain whether group sessions would be billed differently. (Tr. p. 110).

He testified that the student is grouped with another member of her class, who is served by the same provider. (Tr. p. 126).

At the start of the year, the student was reading independently at a Level P, which corresponds to a fifth-grade level. (Tr. p. 115-116). The student has progressed in her fluency, in reading and in her comprehension. Progress was also made in her ability to use a graphic organizer, to explain the main idea. (Tr. p. 118). In math, the student progressed in her ability to perform multi-digit operations, with manipulatives, and with steps broken down. (Tr. p. 125).

In an affidavit dated January 22, 2024,the Director of Operations for the Agency, testified that the student receives up to six hours per week of SETSS, at her private school. He wrote that the Agency’s rate for the service is $300.00 per hour; and that this is a reasonable market rate, based upon his understanding of comparable services in the greater New York City area. He wrote that to date; the student has received 76.75 hours of services. (Par. Ex. I).

The Director of Operations testified that he began working for the Agency in August 2023; and has no knowledge of anything prior to the current school. (Tr. p. 58). He testified that the student’s provider is paid approximately $100.00 per hour. (Tr p. 61). The Agency’s rate of $300.00 per hour is a flat rate charged for each student, regardless of the need or requirements for supervision. (Tr. p. 66). He testified that he believes the rate was established based upon research conducted last July, before he became employed by the Agency. He was not familiar with any document reflecting the research. (Tr. pp. 74-75). He could not identify any other Agency which charged $300.00 per hour for SETSS. (Tr. p. 77).

The Agency has not yet billed the DOE for any services provided to the student during the current school year. (Tr. p. 79). The Director of Operations testified that the Agency has not yet been authorized by the Implementation Unit to bill the DOE. (Tr. p. 80). The Agency has not received payment of $300.00 per hour in any case, as it has not received approval for billing. (Tr. p. 82). The Agency does not provide services in any school district other than New York City. (Tr. p. 85).

The Agency serves approximately 95 students at this student’s school. The Director of Operations testified that the student receives individual and group SETSS; however, there is no difference in the rate when the student is provided with SETSS in a group. (Tr. p. 82).

Findings of Fact, Conclusions of Law and Order

Education Law § 3602c[2][b][1] provides as follows:

“ For the purpose of obtaining education for students with disabilities, as defined in paragraph d of subdivision one of this section, such request shall be reviewed by the committee on special education of the school district of location, which shall develop an individualized education service program for the student based on the student's individual needs in the same manner and with the same contents as an individualized education program. 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. Review of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter.”

The student’s entitlement to special education services, on-site at her private school, arises under Education Law § 3602c[2][b][1], and not under the Individuals with Disabilities Education Act, which creates no individual entitlement. Application of the School District, 09-115; See Bay Shore Union Free School District v. Kain, 485 F. 3d 730 (2d Cir. 2007).

A guidance memorandum from the State Education Department, dated September 2007, titled “Chapter 378 of the Laws of 2007- 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” (hereinafter referred to as “the Memorandum”) explains school district responsibilities under 3602-c of the Education Law. According to the Memorandum, “equitable basis” means that:

“Special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district”.

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The instruction offered must be specially designed to meet the child’s unique needs through an individualized education program. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). The IEP must be reasonably calculated to enable the child to make progress appropriate in light of his circumstances. Id. at 1002.

A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Forest Grove School District v. T.A., 557 U.S. 230 (2009); School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985).

To qualify for funding under the IDEA, the parents must demonstrate that the parental 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.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).

In these proceedings, the DOE did not dispute that it had failed to implement the IESP, which was still in effect, at the start of the 2023/2024 school year. Therefore, I find that it failed to meet its burden of proving the appropriateness of its actions; or that it provided services to the student, on an equitable basis.

The parent presented evidence that the Agency furnished the student with a provider certified to provide special education; who provided specialized instruction designed to meet the student’s unique needs in reading, math and writing. Therefore, I find that the parent met her burden of proving the appropriateness of the services she selected.

I also note that regardless of the appropriateness of the services, the DOE was obligated to fund SETSS, six hours per week, from September 6, 2023 until the date of this decision, pursuant to the pendency implementation agreement. (IHO Ex. I).

Equitable Considerations

I find that the contract which the parent signed with the Agency is vague, and unlikely to be enforced. The contract provides that the parent is obligated to pay $300.00 for SETSS services delivered for the 2023/2024 school year, without indicating that this is an hourly rate, or how much service will be provided. The Agency has not yet billed the parent or the DOE for its services; and the parent does not know what her obligation is under the contract. The parent does not know what she was charged last year, and states that she was never billed. I further find that the rate charged by the Agency is not reasonable, and should be reduced. See Application of New York City Department of Education , Appeal No. 23-139.

While the Agency’s Director of Operations testified that the hourly rate of $300.00 per hour is comparable to rates charged in the community; he was unable to name one Agency that charged a comparable rate. A review of decisions from the Office of State Review, indicates that SETSS was provided at the rate of $200.00 per hour for the current school year, Application of a Student with a Disability, 24-025; and at the rate of $175.00 per hour, during the 2022-2023 school year. Application of a Student with a Disability, Appeal No. 23-218; Application of a Student with a Disability, Appeal No. 23-065. The Agency has never received $300.00 per hour for SETSS.

The Director of Operation’s claimed ignorance of prior billing practices and of rates charged by other agencies, is not credible. The rate being charged is triple what is paid to the actual provider; and is not adjusted when services are provided in a group. Thus, when the student receives her services with another student (which was occurring frequently at the time of hearing), the Agency is billing the DOE $600.00 per hour for SETSS.

Based upon the foregoing, I find that a reasonable rate for the SETSS provided to the student individually during the 2023/2024 school year is $200 per hour; and $150.00 per hour, when provided in a group.

ORDER

For all of the foregoing reasons, it is hereby ordered that the DOE shall directly fund SETSS, six hours per week, at the rate of $200.00 per hour, for SETSS provided individually, and $150.00 per hour, for SETSS provided in a group, for the duration of the 2023/2024 school year; upon presentation of an affidavit from the provider, accompanied by time sheets for the SETSS actually provided, indicating whether services were provided individually or in a group.

Dated: April 8, 2024 Dora M. Lassinger

DORA M. LASSINGER, 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 Office (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.

DOCUMENTATION ENTERED INTO THE RECORD

Department of Education

#	DOCUMENT DESCRIPTION	DATE	PAGE COUNT
1	Due Process Response	09.21.23	3

IHO Exhibits

1. Pendency Implementation Form, 9-27-23, 1 p.
2. Extensions, various dates, 5 pp.

Parents

1. Impartial Hearing Request, 9-6-23, 6 pp.
2. IESP, 12-19-22, 9 pp.
3. Enrollment Agreement, 7-10-23, 2 pp.
4. Session Log, various dates, 1 p.
5. Progress Report, 12-10-23, 6 pp.
6. June 1 letter, 5-9-23, 1 p.
7. Teacher Certification Details, 1 p.
8. Affidavit of REDACTED 1-15-24, 3 pp.
9. Affidavit of REDACTED, 1-22-24, 2 pp.
10. Affidavit of Parent, 1-3-24, 2 pp.