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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: February 9, 2012
February 13, 2012
February 27, 2012 Actual Record Close Date: March 5, 2012 Hearing Officer: Judith T. Kramer, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 9, 2012
Mother (via telephone) — Student
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 13, 2012
Parent (via telephone) — Student
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 27, 2012
Advocate — Student
Advocate — Student
Parents
Representative — DOE
INTRODUCTION
On November 16, 2011, an impartial hearing was requested by the parent. On January 26, the impartial hearing officer originally assigned to the case recused themselves. The resolution compliance date was January 30, 2012. There was updated requested made on February 6, 2012 and on February 6, 2012, this IHO was assigned. The proceeding 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 A.R. (“the child “) for part of the 2010-2011 and part of the 2011-2012 school year. No extensions were necessary. The hearing was held at the Department of Education located at . The hearing commenced at 9:00 a.m.
A list of exhibits that were admitted into evidence is attached to this decision.
BACKGROUND
A motion to schedule was set for February 6, 2012. A pre-hearing conference was held on February 8, 2012 but when the DOE did not appear, the pre-hearing conference was adjourned to February 9, 2012. The hearing was scheduled for February 27, 2012 at 9:00am. On February 24, 201 the DOE requested an adjournment due to a scheduling conflict which was denied. The hearing commenced and was completed on February 27,
2012. T
The issue in this case is whether the parent’s is entitled to reimbursement in the amount of $1,500.00 for services that she procured for the child beginning in the summer of 2011 and contining through December 2011, after she was informed by the school that there was no one at the school who was qualified for provide the necessary services.
THE PARENT’S POSITION
The parent contends that the DOE denied the student a FAPE by failing to provide the student with necessary services on his IEP and in school. As such, the parent contends that she in entitled to reimbursement for the services which she procured at her own expense at an enhanced rate of $90.00 per hour.
THE DOE’S POSITION
The DOE did not oppose the parent’s application and presented no evidence to refute the parent’s evidence.
EVIDENCE PRESENTED
The child is a as a kindergartener during the 2010-2011 school year and is attending that school as a first grader for the 2011-2012 school year. (Parents’ Ex. A.1, T.31) He has been diagnosed as and is classified as . (Parent’s Ex.B.16, C.1) He is a 12-month student. (Parent”s Ex. B) While still in his teacher informed the parent that he was engaging in “ “ and was . (Parent’s A.1, T.31-32) he . On one occasion, he . Id. Neither the child’s teacher nor any other school personnel were able provide any suggestions or services to address these . (T.32-33) The parent hired a private behavioral specialist to . (T. 35) This individual, Dr. , has a doctorate degree and a BCBA. (T. 3334,36) She worked together with the school staff to develop an for the child. (Parent’s Ex. A.1) After Dr. worked with the child, the teacher saw a notable decrease in the child’s targeted behaviors. (Parent’s Ex. A.2) The teacher requested that the parent continue the services of Dr. .
In December 2011, there was an IEP meeting during which SETSS was added to the IEP. Both the parent and the DOE agreed that 1) school was unable to provide the child with behavioral intervention services and 2) the services provided by Dr. - were helping the child make . Consequently, the DOE now provides the child with SETSS through his own service provider, Dr. , at DOE expense 2x a week at the enhanced rate of $90.00 per hour. The parent is seeking reimbursement for the services she provided to the student at her own expense prior to the effective date of the new IEP. (Parent’s Ex. A.1)
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]
In this case, the IEP that was in effect prior to the IEP meeting held in December , 2011 failed to provide the child with a satisfactory or with the services. In fact, the teacher urged the parent to obtain her own private provider to work with the child and to develop such a plan for the child because their was no one at with the skills to provided the proper for the child thus, denying the child FAPE.
There is no dispute that from July 28, 2011 until December 6, 2012, the mother provided these much needed services to the child at her own expense. (Parent’s Exs. G, I) She paid a total of $1,500. Id. Indeed, in December 2011, these services were added to the child’s IEP by the DOE and the DOE is now paying for them directly. Accordingly, the parent is entitled to receive reimbursement in the amount of $1,500.
Ordered that:
Within one week of the receipt of this order, the DOE shall reimburse the parent in the amount of $1,500. Dated: March 6, 2012
___________________________
JUDITH T. KRAMER, ESQ.
Impartial Hearing Officer
JTK: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 Parent’s Hearing Request, 11/16/11, 2 pp. B IEP, 12/6/12, 19 pp. C Therapist Report, 10/18/11, 7 pp. D Update, 11/23/11, 2 pp. E Classroom Observation, 9/19/11, 10/20/11, 10/26/11, 1 p. F Receipts, 7/2011 to 12/2011 13 pp. G Affidavit of Services Provided, 12/18/11, 3 pp. H Direct Reimbursement Form, 2/26/12 I Letter from The , 2/22/12, 2 pp.