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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: December 7, 2012
Actual Record Close Date: December 18, 2012
Hearing Officer: Judith T. Kramer, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 7, 2012
Parents
DOE Representative — DOE
INTRODUCTION
On July 24, 2012, an initial impartial hearing was requested by the parent. An amended request was filed on August 13, 2012. On November 6, 2012, the impartial hearing office assigned me to the case after another IHO recused themselves and the initial compliance date had passed. The resolution compliance date was updated to October 10, 2012 after an updated requested was made. 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 D.V. (“the child “) for the 2012-2013 school year. Extensions of the timeline were granted due to availability of witnesses. The hearing was held at the Department of Education located at 131 Livingston Street, New York. The hearing commenced at 1:00 pm.
A list of exhibits that were admitted into evidence is attached to this decision.
THE PARENT’S POSITION
The parent contends that the DOE denied the student a FAPE by failing to provide the child with his necessary (“ ”) related services at home. As such, the parent contends that the child is entitled to receive services for her child home.
THE DOE’S POSITION
The DOE offered the child’s IEP in evidence. The IEP mandates that the child shall receive related services twice a week for thirty minutes in a group. The DOE contends that such services were offered and the child was, therefore, provided a FAPE.
FINDINGS OF FACT
The child is an who attends . The child come home from school, does his homework and then would get his services. He is mandated to received services two times a week in a group for thirty minutes. (DOE Ex. 1) He also receives SETSS five times a week for an hour each day at home at about 4:00PM. (T. 19 ) His provider works at on . (T. 19, 20) In June, the parent received an FNR offering the child his mandated services at (T. 20-21) The parent filed a request for an impartial hearing and rejected the location of the services. She is asking that the services be provided at her home. The child has other siblings with disabilities who also receives SETSS at home each afternoon. (T. 21) The SETSS provider remains at the home until 6:15 to provide each of the children with SETSS after school. The parent agreed that the child could receive his SETSS last. (T.15) A 94 year old mother-in-law also lives with the family. (T.21) The parent is unable to pick-up the child from his school and bring him to because she has other children and her elderly mother to care for after school.
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 is not at issue. The impartial hearing request is solely limited to the location of where the other related services will be provided. The parent agrees with the related services and the amount of such services reflected therein. Her only complaint with regard to the child is the location of where services will be provided.
The FNR stated that the child would receive his services at . The parent wants the child to receive his services at home. Unfortunately, this is not appropriate. The IEP mandates that the child receive his services in a group. This mandate cannot be accomplished at home. Were he to have his services at home as his mother wishes, he would be getting the services which is contrary to his mandate. The as provided at will be provided to the child in a group most probably by the child’s former provider who works at
However, under the circumstances of the child’s family situation, he may not be able to receive his mandated services unless the DOE provides him with transportation to and from . If he cannot get to his mandate will not met. DOE has the responsibility to see that it is met.
Ordered that:
Within one week of the receipt of this order, the DOE shall provide:1) services to the child twice a week for thirty minutes in a group at ) bus or other transportation which the DOE shall choose to transport the child from and from to his home in order for him to receive his group services as mandated on his IEP. Dated: January 2, 2013
____________________________
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
DEPARTMENT OF EDUCATION
1 IEP, 6/12/12, 8 pp.
IMPARTIAL HEARING OFFICER
I Parent Letter, 8/12/12