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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 29, 2012
September 6, 2012
Actual Record Close Date:
Hearing Officer: Esther Mora, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 29, 2012
Parent (via telephone) — Parents
District Representative (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 6, 2012
District Representative-, — DOE
This hearing was requested by the parent on July 24, 2012. A prehearing conference was held on August 24, 2012. A pendency hearing was held on August 29, 2012. I issued a Pendency Order on August 31, 2012, ordering that the student receive pendency services at . A full hearing was held on September 6, 2012. The parent seeks continuation, at school district expense, , at Pros, an independent provider. The classification and recommended service of , is not in dispute. School District The school district representative testified and submitted documentary evidence. (Exhs. 1-11) On February 10, 2012 the school district recommended . (Exh. 1) The school district provided the commencing in the Spring of 2012 pursuant to an RSA letter provided to the parent. (Exh. 11) For the 2012-13 school year the school district has offered to provide the at the . (Exh. 10) The parent did not consent. Parent
The parent testified and submitted documentary evidence. (Exh. A) The parent seeks to have the student continue to receive at school district expense. The parent referred the student for an evaluation and services at the commencement of the 2011-12 school year. The student was determined to be eligible for , but the services did not commence until the Spring of 2012. At the beginning of the school year the parent obtained and paid for the at until she could no longer afford to do so. The parent testified credibly that the student is benefiting from the . She also testified that to interrupt the services again, and to have him start over with a new so soon, would be detrimental to the student. She also testified that because she has she is unable to transport the student to the recommended site during the time they are available to provide the . She is able to take the student to because their hours are flexible.
Findings
As was recently reiterated in Appeal No. 12-082, two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see Forest Grove v. T.A., 557 U.S. 230, __, 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 20607 [1982]).
A "FAPE" is defined as special education and related services: (1) that meet state standards; (2) include an appropriate preschool, elementary, or secondary school education; and (3) that are provided at public expense and in conformity with an IEP (20 U.S.C. § 1401[9]; see Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883, 889 [1984]; Rowley, 458 U.S. at 203 [explaining that a school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"]). Pursuant to the IDEA and its implementing regulations, a district is required to develop an IEP with a written statement of the special education and related services to be provided to a student with a disability (20 U.S.C. § 1414; 34 CFR 300.320[a][4]). "Special education" means specially designed instruction, provided at no cost to parents, to meet the unique needs of the student (20 U.S.C. § 1401[29]; see 34 CFR 300.39[a][1]). The term "related services" includes transportation and other services as may be required to assist a student to benefit from special education (20 U.S.C. § 1401[26], see 34 CFR 300.34[a]).
In the instant case, the parties agree that the student is eligible for speech and language . The hearing record reveals that the parent referred the student for services at the commencement of the 2011-12 school year but the school district did not begin providing the speech and language until the Spring of 2012. Initially, at the beginning of the 2011-12 school year, the parent paid for the herself but when she could no longer offer to do so, there was an interruption in . commenced again in the Spring of 2012 at , the independent provider, at school district expense.
The school district is now seeking to terminate at and provide it instead at with a different . I find that termination of services at Pros at this juncture would be detrimental to the student and deprive him of FAPE. The parent testified credibly as to how the student has benefitted from the services and the record establishes that requiring the student to start over with another therapist at this time would not be beneficial to the student. Therefore, to ensure that the student receives a FAPE, the student must continue to receive services at for the 2012-13 school year.
ORDER
For the 2012-13 school year the student is to receive at at school district expense. Dated: September 13, 2012
_____________________________
ESTHER MORA, ESQ.
Impartial Hearing Officer
EM:jj
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 Impartial Hearing Request, 7/19/12, 1 p.
DEPARTMENT OF EDUCATION
1 IEP, 2/10/12, 7 pp. 2 FNR, 2/10/12, 1 p. 3 Social History, 11/14/11, 2 pp. 4 Educational Evaluation, 11/14/11, 4 pp. 5 Classroom Evaluation, 11/14/11, 1 p. 6 Classroom Observation, 11/28/11, 2 pp. 7 Evaluation, 11/14/11, 4 pp. 8 Evaluation, 1/17/12, 3 pp. 9 Evaluation, 9/19/11, 2 pp. 10 Final Notice of Recommendation, 6/17/12, 1 p. 11 Resolution Agreement, 4/17/12, 2 pp.