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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: July 15, 2014
Actual Record Closed Date: July 23, 2014
Hearing Officer: Lana Flame, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 15, 2014
Mother (Via Telephone) — Student
Impartial Hearing Representative — DOE
By letter dated May 20, 2014, the parents of the student requested an impartial hearing seeking an order for an enhanced rate for their daughter’s five sessions per week of Special Education Teacher Support Services (“SETSS”) mandated on her Individualized Education Services Program (“IESP”) for the 2014-2015 school year. The parents allege that they have been unable to find a provider to meet their daughter’s needs, at the current Department of Education (“DOE”) rate. Nor has the DOE located a provider for their daughter. DOE Ex. 1.
A hearing was held on July 15, 2014, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. Sec. 1415(f)(1). The record was closed on July 23, 2014.
FINDINGS OF FACT
The student has been diagnosed with dyslexia. Parent Ex. D-9-10; Tr. 35-36. The Committee on Special Education found that the student “needs multisensory instruction….She continues to insert, omit and substitute words and sounds when reading and needs further development of her decoding skills.” DOE Ex. 9-1. The student’s IESP dated March 11, 2014, recommends that the student receive 5 sessions per week of SETSS. DOE Ex. 9-9.
The DOE did not dispute that the student is entitled to the SETSS as indicated on her IEP. The DOE provided the parent with a list of many providers, but neither the parent nor the DOE was able to find a provider who was able to provide the student with the type of support the student requires. Tr. 28-29; DOE Ex. 11.
The parents contacted several providers from the list provided by the DOE, and none were able to provide a multisensory approach. Tr. 32-33. The parents have identified a SETSS provider, EBL Coaching, which is able to provide the student with the multi-sensory approach with which the student has made progress. Tr. 32, 36. EBL Coaching charges a rate of $110.00 per session, more than the rate provided by the DOE, which is approximately $50.00. Tr. 33-34, 36. The DOE has paid an enhanced rate to EBL Coaching, for the student, for the past two years. Tr. 34-35.
Decision
In essence, there is no dispute between the parties about the type of services needed by the student or the frequency of those services, in order for the student to obtain a free and appropriate public education (“FAPE”). Neither the parent nor the DOE has been able to find a provider from the list of DOE providers, who can fulfill the student’s IEP recommendations. The parent has found an appropriate provider who is available to provide the student with the mandated services. In the absence of any argument or evidence that the parent's identified rate is excessive, there is no basis to deny the relief requested by the parent in the form of a rate enhancement, not to exceed $110 per hour session. See, Application of a Student with a Disability, Appeal No. 11-045.
ORDER
The parents are entitled to receive an enhanced rate above that provided by the New York City Department of Education to pay for the SETSS mandated on their daughter’s IESP. The enhanced rate is $110.00 per one hour session.
Based on the foregoing, upon receipt of this decision, the DOE immediately shall issue to the parents the proper documentation required so that EBL Coaching can be paid the enhanced rate of $110.00 per one hour session. Dated: July 24, 2014
Lana Flame, Esq. gc
LANA FLAME, ESQ.
Impartial Hearing Officer
LF:gc
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 Resolution Agreement, 6/9/14, 2 pages B Assistive Technology Evaluation, 11/21/13, 4 pages C 4th Grade Anecdotal, June 2013-2014, 4 pages D
Report, 6/15/11 - 6/30/2011, 15 pages
DEPARTMENT OF EDUCATION
1 Due Process Complaint, 5/20/14, 3 pages 2 April 2013 IEP, 4/11/13, 9 pages 3 April 2013 IEP Conference Minutes, 4/1/13, 1 page 4 Non Public School Placement, 4/11/13, 2 pages 5 Non Public School Placement Confirmation, 4/29/13, 1 page 6 December 2013 IEP, 12/3/13, 10 pages 7 Prior Written Notice/Notice of Recommendation, 11/3/13, 4 pages 8 December 2013 IEP Conference Minutes, 12/3/13, 1 page 9 March 2014 IEP, 9/11/14, 14 pages 10 March 2014 IEP Conference Minutes, 3/11/14, 1 page 11 SETSS Provider List, April 2014, 1-394 pages w/cover page