Introduction
Many parents rely on private special education service providers when their school district fails to deliver the services their child needs, or even those that are mandated on their IEP. However, when seeking reimbursement or direct funding for private services, the district may argue that the rates charged by private providers are too high. Any rate above the extremely low rates that the NYC DOE pays providers is considered an “enhanced rate.” But how are parents supposed to justify “enhanced rates” at an impartial hearing?
A recent State Review Officer (SRO) decision (24-218) issued in July 2024 helps explain this issue. The case involved a parent who sought reimbursement for Special Education Teacher Support Services (SETSS) provided by EdZone, LLC at a rate of $198 per hour. The New York City Department of Education (DOE) challenged this rate, arguing that it was excessive. The SRO ultimately ruled in favor of the parent, requiring the DOE to fully reimburse the $198/hour rate.
This case highlights key takeaways on how parents can justify enhanced provider rates when school districts refuse to fund them.
Disclaimer
I was not involved in the appeal discussed below. However, the decision is publicly available online and serves as an educational resource for parents navigating special education disputes. You can read the full decision by clicking here. Please note that this appeal does not guarantee success in your case, as each situation is unique. If you have specific questions about your circumstances, contact me for guidance.
What Happened in This Case?
1. The DOE Failed to Provide Mandated Services
The student had an Individualized Education Services Program (IESP) requiring:
- 6 periods per week of SETSS (group setting); and
- One 30-minute counseling session per week.
The DOE failed to implement these services. This means that the DOE did not provide any instructors to ensure that the student’s IESP services would be provided. Because of the DOE’s failure to act, the parent hired EdZone to provide individual SETSS at $198/hour.
2. The Parent Notified the DOE of the Private Services
The parent sent a 10-day notice informing the DOE that it had failed to provide services and that the parent would secure a private provider at an enhanced market rate. The DOE did not respond, and the parent filed a due process complaint, which led to an impartial hearing.
3. The DOE Argued That the Rate Was Excessive
The DOE challenged the $198/hour rate, arguing that:
- The services should have been provided in a group, not individually.
- The rate was inflated due to administrative costs.
- The providers had certifications only for birth through second grade, while the student was in seventh grade.
- The parent failed to prove the rate was reasonable.
However, the DOE provided no evidence to support its claim that $198/hour was excessive.
4. The SRO Rejected the DOE’s Arguments
The SRO ruled in favor of the parent, ordering the DOE to reimburse the full $198/hour rate because:
- The student’s needs required individual SETSS, even though the IESP initially recommended a group setting.
- The DOE failed to provide market rate data to prove the rate was excessive.
- The provider’s certifications were not a barrier, as they were still qualified to meet the student’s needs.
Lessons from This Case
This case is a valuable guide for parents facing pushback from the DOE on private provider rates. It should be expected that the DOE will argue that your provider’s rates are too high, so it is important to be as prepared as possible.
- Document everything: Your case is stronger when you have written records, contracts, session notes, and evaluations.
- Push the burden back on the district: They must prove that the rate is excessive, not just claim it.
- Show why your child needed the services: Explain why individual services were necessary for progress.
- Be proactive: Notify the district, attempt to find providers at lower rates, and collect evidence that supports your claims.
Have Questions About Your Case?
Every case is unique, and this decision does not guarantee success in your situation. If you have questions about your child’s special education services, private provider rates, or due process rights, contact me below to discuss your specific circumstances.