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AMENDED FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: December 16, 2011
Actual Record Close Date: December 28, 2011
Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 16, 2011
Advocate — Student
Parents
Parents
Interpreter — Student
Director of Student Services — DOE
— DOE
INTRODUCTION
On December 16, 2011, an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the alleged failure of the DOE to provide a FAPE to (“the student “) for part of the 20102011 and part of the 2011-2012 school year. After requests for extensions which were granted due to witness availability, the hearing was held at the Impartial Hearing Office of the Board of Education of the City of New York located at 131 Livingston Street, Brooklyn, New York. (See case follow up sheets documenting those extensions, which are attached hereto) The hearing commenced at 10:00 a.m.
A list of exhibits that were admitted into evidence is attached to this decision.
BACKGROUND
On September 28, 2011, the parent filed a request for an impartial hearing alleging that the DOE failed to provide a FAPE for part of the 2010-2011 school year and for part of the 2011-2012 school year. On October 13, 2011 and updated request for an impartial hearing was received. A motion to schedule was set for October 19, 2011. On that date a hearing date of December 16, 2011 was selected by the parties and the appropriate extensions were granted due to witness availability and receipt of the transcript. On November 17, 2011 the DOE requested an adjournment due to a scheduling conflict which was denied. The hearing commenced and was completed on December 16, 2011.
The issue in this case is whether the parent’s request to have her IEP fully implemented and to have all related services as well as transportation provided to the student should be granted.
THE PARENT’S POSITION
The parent contends that the DOE denied the student a FAPE by failing to provide the student with the services as mandated on the IEP and as agreed to in a prior resolution meeting. As such the parent contends that the student has been unable to attend school for months—from o the end of
THE DOE’S POSITION
The DOE has not clearly stated its position.
EVIDENCE PRESENTED
The child is a -old student who attended School during the 2010-2011 school year. (Parents’ Ex. B1) She has been from a due to a that was in 2003. The , her and her to . (T.19) Since then, she has been provided with a paraprofessional (“para”) “at all times” throughout the day to assist her with everything she does on the bus to and from school and in school. (T. 21, 32) She is to receive a twelve-month program. On December 9, 2010, an IEP was issued which reflected these requirements. (Parents’ Ex. C1) That IEP also reflected that the student was . (Parents’ Ex. C.3) On May 27, 2011, the student in school and additional . (T.20, 33) This was not the first time the student had while in the care of her para. Id. The parent requested that a new para be assigned to the student. The school told her that no other para was available. Id. The bus driver told the parent that the student could not ride the bus without a para. (T.22-23) The parent filed a request for an impartial hearing in the spring of 2011. That case was given number . A s a result of filing for that impartial hearing, a resolution meeting was held on June 17, 2011. (T.34) At that meeting, the parent and the DOE agreed that the student was entitled to receive a new full time para and summer services for . The DOE also agreed to provide the parent with to obtain the related services over the summer of 2011. (Parents’ Ex. B, T. 24)
The student did not have a para from May 2011 through the end of October 2011. In addition, no were provided to the parent for the student to receive services over the summer. (T.36) The DOE did not even give the parent a list of providers. (T.29) The parent called the DOE and asked to speak to the person who reached the agreement with her in June. the parent was told that the person did not work at the DOE anymore. (T.30) She was asked to call Ms. with whom she spoke several times. Ms. told the parent they were still working on it. (T.23, 30-31)
Finally, at the end of October 2011, the student was assigned as para and began attending school again .[1] (T.23) She is receiving all of her related services except . (T.37)
CONCLUSIONS OF LAW
Under the IDEA, a child with a disability is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). A FAPE includes special education and related services specially designed to fulfill the unique needs of the student with a disability, and it is provided in conformity with a written IEP. 20 U.S.C. §1401(8). A FAPE “begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, [and] provision for the use of appropriate special education services to address the child’s special education needs . . .” [Application of a Child with a Disability, Appeal No. 99-17] Once the IEP is created, the DOE has a duty to ensure that it is implemented. A failure to implement the mandates on the IEP can constitute a denial of FAPE.
In this case, the IEP that was in effect from December 9, 2010 through December 8, 2011 provided that the student receive a twelve-month program in a special class : and a full time para at all times including door to door bus service. In addition, that IEP provided that the student receive once a week for 45 minutes in a group of ; twice a week for 40 minutes in a group of 3; once a week for 45 minutes in a group of 5; therapy twice a week for 45 minutes in a group of three in addition to the full-time para. There is no dispute that from May 27, 2011 through the end of October 2011, the student received none of the mandated services. This is a flagrant denial of FAPE. Accordingly, the student is entitled to receive compensatory services as detailed below.
Ordered that:
1 While not particularly relevant to this proceeding, it should be noted that In December 2011, an IEP meeting was held. The parent did not receive a notice of the meeting and did not attend. (T.39) She never received a copy of the new IEP (DOE Ex. 2). (T.46) She never signed that IEP. translation of the IEP was ever provided to her. (T.47) This is just another example of how the DOE has continued to ignore the rights of the parent and the needs of the student.
Hearing Officer’s Amended Findings of Fact and Decision [5]
2011-2012 school year as she deems fit in the amounts of time specified on the December 9, 2010 IEP for a period of six months from the date the parent can find a provider. In addition, within one week of the receipt of this order, the DOE shall provide the student with Special Education Teacher Support Services in school five times a week for one hour a day.
2. The DOE shall pay for the student to obtain reading and math tutoring for a period of six months at a rate not to exceed $ per hour for ten hours a week to be utilized at the parents’ discretion after school or on the weekends;
3. The DOE shall pay for the student to obtain reading and math tutoring from a NYS certified special education teacher for a period of six months within one week from the time the DOE is in receipt of this amended order at a rate not to exceed $ per hour for ten hours a week to be utilized at the parent’s discretion after school or on the weekends;
4. The DOE shall provide bus transportation to and from all of these related services and tutoring sessions described above;
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
PARENT
A Letter from , 9/2/11,[1] p. B Agreement after Resolution Meeting on Case Number , 6/17/11,[2] pp. C IEP, 12/9/10, 13 pp.
DEPARTMENT OF EDUCATION
Footnotes
[1] Within one week of the receipt of this order, the DOE shall provide the parent with for , and which the parent can utilize to obtain these related services during the
[5] The DOE shall provide a para to accompany the student to and from these related services and tutoring sessions. Amended Decision Dated: February 3, 2012 Original Decision Rendered: December 30, 2011 ________________________________ Impartial Hearing Officer
[1] Student Attendance Display Screen, 12/15/11, 1 p.
[2] IEP, 12/6/11, 12 pp.