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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: October 19, 2011
December 22, 2011
Actual Record Closed Date: January 3, 2012
Hearing Officer: Michael S. Lazan, Esq.
Corrected
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 19, 2011
Advocate — Student
Impartial Hearing Designee (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 22, 2011
Advocate — Student
Parents
CSE- Chairperson's Designee — DOE
By Complaint dated July 20, 2011, 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). Appended to the record are the names of the persons who appeared. This hearing was requested to review ’s recommended services for 2010-2011 at her private school, and to request reimbursement for services provided by the parent for such year. The reimbursement request relates to services provided by , a special education teacher.
After the resolution period, the Impartial Hearing Officer (IHO) asked the parties for dates for hearing. (IHO Exh. 1) The parties indicated that they were not ready to proceed within 14 days and needed additional time to prepare for the case and sought an extension of the decision date. The IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension to October 19, 2011. A hearing date was set for October 19, 2011. The parties provided opening statements on this date and presented evidence on this date. The District moved to extend the decision date because of witness availability. The IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension to November 18, 2011. (IHO Exh. 1) Both parties again sought to extend the decision date on November 14, 2011 because of witness availability. The parties indicated that there was no prejudice to the student because of the delay since this was a matter relating to the 2010-2011 school year. The District indicated that it would not be prejudiced by any further delay. Indeed, the District indicated affirmatively that it would prejudiced if the matter were not extended further. (IHO Exh. 1) The IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension to December 17. (IHO Exh. 1) The matter was then rescheduled for December 22, 2011. The IHO indicated that the matter needed to be completed on such date. (IHO Exh. 1) The parties moved to extend the timelines a final time because of witness availability on December 15, 2011. The IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii), adjourned the case and granted the extension to January 18, 2012. (IHO Exh. 1)
FINDINGS OF FACT
The Student is a old classified as a student with other . The Student attends , a private general education school in Brooklyn. Per a “P-4" form from the District dated 8/15/10, the District recommended that the Student receive per week for one hour a week with a maximum class size of 8. (Exh. 1
To implement the P-4 form, the parent contacted providers on a list provided by the District. (18-19) A booklet was provided to her in the summer. (23) No providers were available despite the fact that the parent contact numerous providers. (18, 23) The providers are reluctant to accept the work for the amount to be paid per hour. (33) She contacted at least a dozen providers. (30) Nobody was available, nobody called her back.
(30) As a result, the parent retained her own provider, who provided the services at a rate of $100 per hour. (18-19)
The provider, , is awaiting payment on these services. (19) The parent owes the money to this provider. Ms. is a licensed teacher. (Exh. B, Exh. 20) This teacher has been working with the Student since . (21) Ms. provides services for two hours a day, ten hours a week. (25) These services are provided at the home. (26) Services relate to math, living skills, reading, writing. (26) The child is making progress with the services. (33)
CONCLUSIONS OF LAW
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.
Section 3602-c(2) of the Education Law requires Districts, upon timely request by parents, to furnish appropriate special education programs to students with disabilities privately placed by their parents in nonpublic schools. A board of education may provide appropriate services either in public schools, in private schools or at neutral sites. Application of a Child with a Handicapping Condition, Appeal No. 91-13.
Here, I find that the District failed to show that it could implement all of the SETTS the services recommended on its P-4 form for the 2010-2011 school year. The SETTS services were the main services to be provided to the Student for such school year. As a result, the District denied the Student free appropriate public education (FAPE) for the 2010-2011 school year. Application of a Child with a Disability, Appeal No. 05-097 (where parent could find no SETSS provider off district’s lists, district conceded FAPE denial). Where there has been such FAPE denial, a hearing officer may award “equitable relief in the form of additional services” to students who “remain eligible to attend and have been denied appropriate services.” Application of the Board of Education of the Hyde Park Central School District, Appeal No. 03-075 (missed afterschool sessions). Moreover, an IHO has “broad discretion” to order relief to insure that a child receives the FAPE that they are entitled to. Application of the New York City Department of Education, Appeal No. 05-113. The record reflects that Ms. is qualified provider who is currently owed money for the services. Ms. is a competent and qualified provider has provided the services adequately. There is nothing in the record to suggest that any other provider should have been retained by the parent. The District suggests that Ms. would be the only party to benefit from a decision awarding payment for services. I disagree. The parent will benefit from an order of reimbursement because she has a substantial interest in discharging a debt to a long time provider of services to her child. Under the circumstances here, it is appropriate to order reimbursement for the services obtained by the parent. Dated: January 17, 2012 Corrected Date: January 17, 2011 (Template added)
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 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 DESCRIPTION
A Hearing Complaint, 7/20/11, 3 pgs. B Provider's License. C Provider' Invoices, 10/2011, 10 pgs. D Educational Progress Report, 4/15/11, 3 pgs
DEPARTMENT OF EDUCATION DESCRIPTION
1 SETSS Form, 1 page
IHO DESCRIPTION
I IEP, dated 6/22/09 II Notices and E-mails Relating to Decision Date, 6 pages