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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: 13
Hearing Requested By: Parent
Date of Hearing: March 2, 2011
April 15, 2011
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
Representative from Neal Rosenberg — Student
CSE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED
ESQ., Attorney — Student
ESQ., Attorney — Student
Mother — Student
SETSS Provider (Via Telephone) — Student
District Representative, CSE- — DOE
By request dated November 15, 2010, the matter of . came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1) and New York State Education Law. Appended to the record are the names of the persons who appeared. This hearing was requested for funding for private individualized teaching services for 2010-2011. The matter was extended numerous s on joint application to June 24, 2011 as a result of witness availability, complexity of issues, decision , and related issues.
The parties stipulated that the child was to receive five periods a week of 40 minute sessions of SETTS services per week. (29)
TESTIMONY AND EVIDENCE
, the mother, indicated that had a major regression when he was years of age. (14) This regression included his ability to properly. (14) He transferred to School. (14) At he began to have . (15) As a result of the , he had something called generalized slowing. (15) He has no concept of , he is disorganized in his , he cannot string together. (16)
After he left , he was placed in an inclusive classroom and then at .
’s, a general education private school. (16) This class is not enough for him; she attended a meeting at the District and they gave her all his services again. (17) Because she switched schools, she had to wait until October to get a P-3 Form and a list of providers. (17) She called all the providers on this list and none would accept the Department of Education rate. (18) She called the District and never heard from them again. (20)
He was supposed to get an hour of SETTS a day. (18)
A friend had used a provider who was approved by the Department of Education and had worked with a child similar to her son. (20) This individual, , started working with twice a week. (20-21) She pays him $ per week. (21) He provided these services in a public place after school. (31, 34-35)
He missed a couple of sessions. (34)
, a history teacher at School, is a certified teacher. (37) He has provided SETTS through the Department of Education according to his own private rate. (37-38) He provides services to students with Individualized Education Programs. (IEP) (38)
He has been tutoring in English and History. (38) Sessions lasted for about an hour. (39)
’s major issues are processing, expressive , structure, . (41) He is working on these areas of deficits; with processing, he gives him extra ; he breaks materials into chunks; he is provided with a planner; they will correspond to work on management issues. (42) These strategies have benefitted . (42-44) He has been paid to the end of December. (47)
FINDINGS AND DECISION
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
The District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 S(1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).
The well-reasoned decision of Judge Lawrence Kahn in Connors v. Mills, 29 IDELR 946 (N.D.N.Y. 1998), expands on Burlington in allowing for tuition payment in circumstances where a claimant cannot "front" money to the school first. Judge Kahn stated that "(i)t simply cannot be the case that an act designed to grant "all" disabled children access to needed services would undermine that very goal by making such access dependent upon a family's financial situation." Id. at 951.
The Individuals with Disabilities Education Act (IDEA) confers no individual entitlement to education or related services upon students who are enrolled by their parents in nonpublic schools. Section 3602-c of the New York Education Law requires the provision of education services to children with disabilities who are enrolled by their parents in nonpublic schools provided that a request for such services is filed with the board of education on or before the first day of June preceding the school year for which the request is made. N.Y. Educ. Law Sect. 3602-c(2)). Education for students with disabilities means education programs "designed to serve" students with disabilities. N.Y. Educ. Law Sect. 3602-c(1)(d). Subdivision 2 of section 3602-c of the Education Law requires boards of education to furnish appropriate education programs to students with disabilities privately placed by their parents in nonpublic schools. These services can be provided to children with disabilities, in appropriate circumstances, according to their individual needs, either in the regular classes of the public schools or elsewhere, including at the nonpublic school the student attends. Bay Shore Union Free Sch. Dist. v. T., 2005 WL 3489246 (E.D.N.Y. Dec. 21, 2005); Application of the Bd. of Educ., Appeal No. 04-079.
On a case involving claims pursuant to allegations per Section 3602-c of the Education Law, the same standards apply as in a case containing IDEA allegations. The District must show that it offered parents a free appropriate public education (FAPE). A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the law, and (b) the IESP developed by its Committee on Education (CSE) is reasonably calculated to enable the student to receive educational benefits.
Here, there is no dispute that the CSE agreed to provide this student with SETTS services five s a week per the IESP that was created in August, 2010. There is also no dispute that the District was unable to find a provider for the parent. Finally, there is no dispute that the parent could not find a provider through the District’s “P-3" form and the corresponding list of providers. Under the circumstances, the District impeded the child’s right to a FAPE. The parent prevails on the first criterion.
On the second criterion, the test for a parents’ placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). The inquiry should be focused on whether the placement is an appropriate setting that provides ly designed services to address ’s education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).
On this record, there is no dispute that has been an appropriate provider for for the 2010-2011 school year. The record reveals that Mr. is a qualified provider who has addressed ’s education needs. The parent prevails on the second criterion.
On the third criterion, reimbursement or payment may be reduced or denied when parents fail to raise the appropriateness in a manner, fail to make the child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. A denial or reduction in reimbursement or payment is discretionary. Application of a Child with a Disability, Appeal No. 04-071.
There is no dispute that the parent did everything asked of her in this connection. The District did not raise the issue of equities. The parent prevails on the third criterion and is awarded reimbursement/payment for 2010-2011 for the services rendered by . Dated: June 24, 2011
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer
MSL:gc
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
A Hearing Request, 11/15/10, 2 pages
B Due Process Response 11/24/10, 4 pages
C IESP, 8/12/10, 12 pages
D Service Invoices various dates, 7 pages
E Proof of Payment various dates, 4 pages
F Report 11/22/09, 15 pages
G Parent Letter to CSE 10/18/10, 2 pages