New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 131420

Student’s Name:

Date of Birth:

District: 12

Hearing Requested By: Parent

Date of Hearing: January 27, 2011

Hearing Officer: Linda S. Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 27, 2011

For the Student:

parent

For the Department of Education:

Chairperson Designee (via telephone)

On May 26, 2010, I was appointed as Impartial Hearing Officer and conducted an Impartial Hearing case number 127536. Hearings were held on June 22, 2010 and June 30, 2010 pursuant to the Individual with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York, regarding the special education program of. I rendered a decision on July 28, 2010 and ordered that the Department of Education (“DOE”) provide 10 hours of Education (“ ”) services for 10 hours per week for the 2010-2011 school year. Further, I ordered that the DOE pay the the rate of $63 per hour for 10 hours per week from September 7, 2010 until the conclusion of the 2010-2011 school year.

On December 14, 2010, I was appointed Impartial Hearing Officer and conducted an Impartial Hearing (this instant case) on January 27, 2011 pursuant to the Individual with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York, regarding the special education program of same child, (hereinafter referred to as “the Student”).

The hearing was convened at the request of the Parent stamp dated December 14, 2010. On December 28, 2010, I scheduled this hearing for January 27, 2011 and on January 27, 2011, this hearing concluded.

The hearing was requested by the Parent to request an increased rate from $63.00 per hour to $92.00 per hour for the based services from the from for the Student. The Parent received my order in Impartial Hearing case number 127536, but was unable to find a who accepted the rate of $63.00. The Parent stated in her due process request that had not received services since September 2010.

BACKGROUND

The Student is a year old who attends District 12 @ in, New York. On March 23, 2010, developed an Individual Educational Program (“IEP”) that recommended the program for 12 months in a class with a staffing ratio of or children and education and. The March 23, 2010 IEP did not recommend a program. The Parent did not challenge the appropriateness of District 12’s Committee on school Special Education (“ ”)’s recommendations to classify the student with or to place him at @. The Parent maintained that the Student required an additional program consisting of services for 10 hours per week is required as has had numerous and is. She alleged that the -based services helped. During the hearing for an Impartial Hearing case number 127536, the Student’s current provided testified that she was a / (“ ”) / and a certified education and she stated that had been providing services for 2 hours per day for 5 days per week to the Student since the summer of 2008. She stated that she charges $63 dollars per hour to provided services. My decision for Impartial Hearing case number 127536 was based on the testimony of the provider. Accordingly, I ordered that the DOE pay the rate of $63 per hour for 10 hours per week from September 7, 2010 until the conclusion of the 2010-2011 school year.

At the hearing on January 27, 2011, the Parent stated that the for did not know the rate that charged for her services. She stated that provider received $63.00 for her services, but that the rate for was $92.00 per hour. The Parent requested that she receive service of 10 hours per week of at- at the rate of $92.00 per hour (trans. 6). The Parent stated that the rate of pay that the employee stated at the hearing on June 30, 2010 was $63.00 per hour because that was the amount the employee received. The Parent stated that the rate the,, charged her for the services was $92.00 (trans. 8). The Parent also stated that as a result of the insufficient rate of payment in the Order in Impartial Hearing case number 127536 had not received at- from September 2010 to date (trans 12). She requested make-up or compensation at- sessions as a result of the missed sessions (trans 13).

The District representative agreed that the Student was entitled to atservices of 10 hours per week for the 2010-2011 school year and the Parent was entitled to compensatory services for 43 weeks for 10 hours per week at the rate of $92.00 per hour from the date of my decision (trans. 16).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the Student but that education must be appropriate so that there is an opportunity for the student to make progress in his education.

In this case the request is for payment for a program for educational services. The applicable legal standard is well established. It consists of three prongs; the first level of inquiry asks whether the services offered by the DOE are adequate and appropriate. If it is found that the services provided are inadequate or, then the second prong is reached. The second prong asks whether the services selected by the Parent are appropriate; and the third prong ask whether equitable considerations support the Parent’s claim. School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 [1985]. In my decision in Impartial Hearing case number 127536, I find the Parent prevailed on all three prongs. Further I find that the District representative agreed that the Student required a -based program of 10 hours of atservice per week provided by a licensed and certified education as a result of my decision in Impartial Hearing case number 127536.

Testimony adduced at the hearing established that the at- atservices provided by a licensed and certified special education continued until September 2010.

The District representative agreed that the Student was entitled to compensatory at- for the missed sessions.

The District representative agreed that the Student missed sessions for 43 weeks for 10 hours per week.

Compensatory education refers to education for a person to compensate for educational deficiencies that occurred between the ages to. It is a remedy granted to students deprived of FAPE. Compensatory education refers to education for a person to compensate for educational deficiencies that occurred between the ages to. It is a remedy granted to students deprived of FAPE and students who have endured educational failures, and who have during their school age years. Garro v. Connecticut, 23 F.3d 734 (2d Cir. 1994); Melvin v. Bolton School District, 100 F.3d 944 (2d Cir. 1996); Application of a Child Suspected of a Disability, Appeal No. 91-6. I find the SRO in Application of a Child with a Disability, Appeal No. 10-057 held compensatory educational relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of FAPE. I found that no FAPE was provided to the Student for the 2010-2011 school year in my Impartial Hearing case number 127536. In this instant case, it was undisputed that the Student was entitled to compensatory service for the missed at- / services for the 2010-2011 school year. It was further undisputed that the Student missed 43 weeks of at/ services.

Order

I order that the DOE provide 10 hours at- per week for the 2010-2011 school year. I further order that the DOE pay the the rate of $92 per hour for 10 hours per week.

The relief set forth herein shall be effective immediately upon the issuance of this Order and remains in effect for the next 43 weeks as the Student is entitled to compensation beyond the school year 2010-2011.

Dated: February 11, 2011

LINDA S. AGOSTON, ESQ.

Impartial Hearing Officer

LA:dl

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City 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 ON JANUARY 27, 2011

PARENT

None

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I Decision in Impartial Hearing case number 127536, 7/28/10, 10 pp.