Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent

Date of Hearing: January 3, 2013

Actual Record Closed Date: January 14, 2013

Hearing Officer: Diane Cohen, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 3, 2013

Mother

District Representative

On November 15, 2012, I was appointed hearing officer pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), in this matter. The resolution period ended on December 13, 2012, and a pre-hearing conference was held on December 14, 2012. The hearing was held on January 3, 2013.

In the Parents’ hearing request, dated November 2, 2012, they allege that at the time of the hearing request, the Student had not yet begun receiving his related services. They allege that attempts to contact the administrator at the district were not successful. The Mother was told that the physical therapy was sent out to an agency as of August 29, 2012, but she alleges that they had not provided services or contacted her. She further alleges that she had not heard from any other agencies regarding speech therapy and occupational therapy. She alleges that she requested the names of the agencies so that she could contact them, but was told that they were supposed to contact her. The Mother requests that the District either find providers or release related service authorizations for all services. She further requests that she receive services to make up for the time from the beginning of the school year (See Exh. 1, p. 2).

In order for a party to prevail with respect to a compensatory education claim, a party must establish more than a de minimus failure to implement all elements of the Individualized Education Program (IEP), and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP (Houston Independent School District v. Bobby R., 200 F.3d 341 at 349 [5th Cir. 2000]; see also Fisher v. Stafford Township Bd. of Educ., 2008 WL3523992, at *3 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ. of Albuquerque Pub. Schs., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]). Accordingly, in reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" (A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 [2d Cir. March 23, 2010]; see Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811 [9th Cir. 2007] [holding that a material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled student and the services required by the student's IEP]; see also Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 (D.D.C. 2007) [holding that where a student missed a 'handful' of therapy sessions as a result of the or due to the , nevertheless, the student received consistent in accordance with his IEP, and the district's failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student's program]) (See Application of a Board of Education, Appeal No. 10-013).

The evidence shows that after the hearing request was filed, the New York City Department of Education (the “DOE”) provided the Parents with a related service authorization, dated November 29, 2012, for individual occupational therapy two times per week for 45 minutes each session (Exh. 2, p. 1). The DOE also provided the Parents with a related service authorization, dated November 29, 2012, for individual physical therapy two times per week for 30 minutes each session (Exh. 3, p. 2). In addition, they provided the Parents with a related service authorization, dated November 29, 2012, for individual for three sessions per week, 30 minutes each session (Exh. 4, p. 1).

The evidence indicates the Committee on Special Education had convened during the 2012-2013 school year, and developed an Individualized Education Services Program (an “IESP”) for the provision of services for a Student who was parentally placed in a non-public school. The IESP indicates that the Student was to receive on an individual basis in Yiddish, three times per week for 30 minutes each session, beginning October 23, 2012. It further provides that the Student was to receive as an individual service, in English, two times per week for 45 minutes, beginning October 23, 2012. In addition, the Student was to receive physical therapy as an individual service in English, two times per week for 30 minutes, beginning October 23, 2012 (See Exh. 6, p. 4-5).

Prior to the school-age IESP, a pre-school IESP was developed during the 2011-2012 school year. The pre-school IESP provided that the Student was to receive therapy as an individual service in Yiddish three times per week for 30 minutes each session, beginning October 27, 2011. It further provided that the Student was to receive as an individual service in English two times per week for 30 minutes each session, beginning October 27, 2011. There was no provision regarding occupational therapy. (See Exh. 7, p. 6).

At the hearing, the parties agreed that there were twelve weeks from the beginning of the school year to November 29, 2012, which was the date on the related service authorizations. The failure to receive related services for twelve weeks, is in my view, a material failure, and I believe the Student should be entitled to receive compensatory services for those missed services for therapy and . However, the Student was not entitled to receive occupational therapy until October 23, 2012, as set forth above. I believe that the failure to receive related services for five weeks is a material failure as well, and will order that makeup services be provided.

I THEREFORE ORDER that the DOE shall, within three days of the date hereof, provide a related service authorization such that the Parent can obtain services for twelve additional weeks of individual therapy, in Yiddish, three sessions per week, for 30 minutes each session. Such RSA shall be provided in addition to the one already provided and dated November 29, 2012.

I FURTHER ORDER that the DOE shall, within one week of the date hereof, directly pay Pathways for the provision of twelve sessions of physical therapy during the period between September 10, 2012 and November 28, 2012, as set forth in Exhibit A, upon presentation of appropriate documentation.

I FURTHER ORDER that the DOE shall, within three days of the date hereof, provide a related service authorization so that the Parent can obtain services for five weeks of individual , two times per week, for 45 minutes each session. Such Related Service Authorization (RSA) shall be provided in addition to the one already provided and dated November 29, 2012. Date: January 16, 2013

______________________________

DIANE COHEN, ESQ.

Impartial Hearing Officer DC;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

Parents’ Exhibits Date of Exhibit No. of Pages

A. Letter from 12/20/12 1

DOE Exhibits Date of Exhibit No. of Pages

1. Impartial Hearing Request 11/2/12 2

2. RSA for 11/29/12 2

3. RSA for 11/29/12 2

4. RSA for 11/29/12 2

5. Final Notice of Recommendation 10/26/12 1

6. IESP 10/23/12 8

7. IESP 10/27/11 9