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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: March 11, 2013
Actual Record Closed Date: March 17, 2013
Hearing Officer: Judith Schneider, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 11, 2013
Esq. Attorney — Parents
Mother — Parents
District Representative — DOE
On March 11, 2013, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”). The parent alleged that the DOE had failed to provide a placement and related services to which the student was entitled pursuant to an IEP issued by the District (“ ). (Ex. D)
The proceeding was initiated at the request of the parent by correspondence dated October 16, 2013. (Ex. D) I was appointed Impartial Hearing Officer on January 16, 2013. I was available to conduct a hearing within 14 days. At prehearing telephone conferences with the parties from January 16, 2013 through January 24, 2013, I was informed that the student was in a placement and receiving various related services and that the remaining issue was principally compensatory services. The initial hearing was scheduled for March 11, 2013, the first mutually available date for the parties, their witnesses and the hearing officer. (T. 4-5, Ex. I)
The current compliance date is April 28, 2013.[1] The record closed on March 17, 2013, upon my receipt of the transcript.
Findings and Conclusions
1
Subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of, among other things, and anticipated testimony, the scheduling of witnesses and submission of evidence. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and my written decisions were provided to the parties. (T. 5, 13- 14, Ex. II)
2012. The DOE conceded that it did not provide a FAPE from August 6, 2012 through November 15, 2012. (T. 6-7, Exs. B, C).
The parent seeks DOE funding for services to make up for instruction and related services missed as a consequence of the district’s failure to provide a FAPE. (T. 78) Further, the parent seeks DOE authorizations that will enable the student to utilize the requested compensatory services through September 30, 2013 and that the frequency and configuration of delivery of those services be at the sole option of the parent. (T. 7)
It is well established that compensatory services may be awarded to “make up” for what was missed due to a district failure to provide a FAPE. Appeal No. 11-027. The DOE does not dispute entitlement to make up services and agrees that the student may utilize them as requested by the parent. (T. 6-7)
In the instant matter, the DOE and the parent agree that the student missed 12 weeks of instruction and related services. (T. 7)
Pursuant to the IEP, the student was to receive: three (3) 30 minute sessions weekly of (“ ”); three (3) 30 minute sessions of therapy (“ ”); three (3) 30 minute sessions of ”). (Ex. A) The DOE does not dispute the parent’s claim that the student is entitled to authorizations for 36 30 minute sessions for each of those related services. (T. 8-9) 2
Further, to compensate for 12 missed weeks of academic instruction the parent seeks authorizations for 60 hours of SETSS to be delivered after school or during vacations, holidays or breaks at the option of the parent. The DOE does not dispute entitlement to that. (T. 8-9)
2) Assistive Technology”AT”) Evaluation
In her hearing request the parent sought an evaluation. (Ex. D) The DOE agrees to provide an evaluation within 45 days of the issuance of this order. (T. 10)
3) CSE Reconvene
2 The IEP also provided music therapy but the claim for compensatory services to make up for the DOE failure to provide that was withdrawn at the hearing. (T. 9-10)
The parent requested that the CSE be reconvened. (Ex. D) The DOE agrees to reconvene the CSE within 15 days of its receipt of the evaluation to consider, among other things: the evaluation; the addition of music therapy; the addition of parent training; whether the goals in the student’s current IEP are appropriate; such other evaluations as may be conducted subsequent to this order. (T. 10)
4) Additional Issues
In January 2013 a DOE CSE conducted a review and issued an IEP. The parent asserted that she has not received a copy of that IEP. The DOE agreed to provide the IEP immediately. (T. 11) It is the understanding of the parties that the parent will, upon request, be provided with copies of such documents as the CSE relied upon to enable the parent to consider whether she believes additional evaluations should be conducted prior to the CSE reconvene or whether there is relevant preexisting evaluative material not considered. (T. 11-12) 3
Order
1. The DOE shall immediately issue RSAs for:
a) 36 30-minute sessions of ;
b) 36 30-minute sessions of
c) 36 30-minute sessions of ;
d) 60 hours of SETSS to be delivered outside school.
The RSAs for the foregoing shall provide that the services may be utilized through September 30, 2013 and that the time of delivery and configuration of the services shall be at the sole option of the parent.
2. The DOE shall provide an evaluation within 45 days of the issuance of this order.
3. The CSE will reconvene within 15 days of its receipt of the evaluation (unless the parties otherwise agree in writing), to consider, among other things: the evaluation;
The parent agreed that the foregoing addressed all issues in the impartial hearing request. (T. 13) the addition of music therapy; the addition of parent training; whether the goals in the student’s current IEP are appropriate; such other evaluations as may be conducted subsequent to this order.
4. The DOE shall immediately provide to the parent a copy of the IEP issued by its CSE in January 2013. Dated: March 18, 2013
_____________________________
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
DOCUMENTS ENTERED INTO THE RECORD
A IEP from CSD, 5/1/12, 10 pgs. Parent
B Student Registration Form (DOE), 1 pg. Parent
C DOE Registration Form, 8/6/12, 1 pg. Parent
D Impartial Hearing Request, 10/16/12, 4 pgs.. Parent
I Prehearing Conference Memo Impartial Hearing Officer
II Compliance Date Extension Decisions Impartial Hearing Officer
Footnotes
[1] Compensatory Services The parent has alleged and the DOE at the hearing agreed that the student was entitled to a placement and services pursuant to the May 1, 2012 IEP issued by the Batavia CSE from the time of subsequent DOE registration until a new IEP was issued. (T. 7, Exs. A,. D) Further, DOE agreed that the student registered in New York City on August 6, 2012 and that a placement and services did not commence until November 16,