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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 7, 2013
November 8, 2013
Actual Record Closed Date: November 22, 2013
Hearing Officer: Jeanne Keefe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 7, 2013
Attorney (Via Telephone) — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 8,
2013
Attorney — Student
Parents
Center Director, (Via Telephone) — Student
MS., Interpreter — Student
, /ASE
INTRODUCTION
On August 28, 2013 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, section 1415 (f) (1), concerning a dispute involving the special education program of Franklin P. (“FPT”).
BACKGROUND
old and has a classification of , the classification is not disputed. A request for an impartial hearing was filed on August 28, 2013 by , Esq. on behalf of the Parent in which it was asserted that the New York City Department of Education (“DOE”) has failed to provide with a free and appropriate public education (“FAPE”) for the 2011-12 and 2012-13 school years in Individual Education Plans (IEP’s) (Ex. A & Ex. 12) and services have failed to result in meaningful progress in reading. The Parent seeks 200 hours of tutoring services at Lindamood-Bell to address . In addition the Parent seeks transportation costs to and from the tutoring center for the Parent and cannot travel alone.
The DOE, through its representative, concedes that FPT did not receive FAPE as set forth in the due process complaint and does not oppose the relief sought, though she opines that perhaps he may need less then 200 hours. (t. 20-21, 70) The DOE did not present any witnesses. , a center director for testified for the Parent regarding the tutoring program and testing that was (t.30-48) In addition, Ms. explained how the number of hours of tutoring help necessary was arrived at (t.51-57) I find Ms. s explanation of the calculation of services credible.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. 1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. 1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. 1414 (d); 34 C.F.R. 300.320). As noted by the State Review Office in Application of a Student With A Disability, Appeal No. 11-068 the burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition for a unilateral placement has the burden of proof regarding the appropriateness of such placement. (Educ. Law Section 4404 (1) (c); see MPG v. New York City Dep’t of Educ., 2010WL3398256 at *7 (SDNY Aug 27, 2010). In the case at hand the Parent is seeking tutoring services.
I find that based on the concession by the DOE was not provided with FAPE for the 2011-12 and 2012-13 school year that in fact FAPE was not provided. Further, as the DOE is not opposed to the relief sought by the Parent and concedes requires additional tutoring such tutoring shall be ordered. While Ms. opines that perhaps does not need 200 hours she appears to base this on a single report (Ex. E) from LindamoodBell. It is undisputed that and I find Ms. ’s calculation of the tutoring hours necessary credible.
ORDER
Therefore, it is hereby ordered that the Department of Education shall provide 200 hours of tutoring services at Lindamood-Bell to address FPT’s reading delays. In addition, the DOE shall pay the cost of transportation to and from the tutoring center for the Parent and Upon receipt of invoices for tutoring services from Lindamood-Bell and receipt of transportation costs the DOE shall make payment within 30 days. Dated: December 4, 2013
________________________
JEANNE KEEFE, ESQ.
Impartial Hearing Officer JK:mv
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 NOVEMBER 8. 2013
A. IEP, dated 3/4/11, 8 pages Parent
B. Evaluation, dated 2/8/11, 7 pages Parent
C. , dated 9/5/12, 1 page Parent
D. Report Card, dated 3/11/13, 1 page Parent
E. Testing Summary, 5/16/13, 3 pages Parent
1. Impartial Hearing Request, dated 8/28/13, 3 pages District
2. Request for IEP meeting letter, dated 1/23/12, 2 pages District
3. Request for IEP meeting, dated 1/2/13, 1 page District
4. Request for Re-evaluation, dated 2/14/13, 1 page District
5. , dated 2/6 & 2/9/12, 3 pages District
6. Bilingual Evaluation, dated 1/26 & 2/15/11
7 pages District
7. Educational Evaluation, dated 2/15/11, 3 pages District
8. Amendment to Annual Review, dated 4/23/13, 1 page District
9. Final Notice of Recommendation, dated 3/21/13, 1 page District
10. Re-eval IEP meeting, dated 3/6/13, 2 pages District
11. Indiv. Education Plan, dated 3/21/13, 10 pages District
12. Indiv. Education Plan, dated 3/2/12, 8 pages District
POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER
I. Statement of Adjournments and Extensions, undated, 1 page