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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: February 12, 2015
Actual Record Closed Date: April 13. 2015
Hearing Officer: , Esq.
Corrected
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 12, 2015
Parents
Provider, (Via Telephone) — Student
District Representative — DOE
CSE Psychologist, (Via Telephone) — DOE
By Complaint dated November 17, 2014, this matter came before me as Impartial Hearing Officer (IHO) pursuant to the pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.
The matter did not resolve during the resolution period. A prehearing conference was held in this matter on January 20, 2015.
The Student is a year old girl who attends a private school and is eligible for services pursuant to an Individualized Education Services Program. The sole issue in this case is whether the Student is entitled to a provider with an enhanced rate of an .
FINDINGS OF FACT
The Student has in . She is at the in terms of
(41) She has
. (43)
For 2013-2014, the Student received services through and . (21-22) These providers were from ( ) and ( ). (22, 29) They were paid by the DOE at the rate of . (23) The rate is per the teacher’s contract. (27)
This agency has entered into an agreement with the DOE to accept the DOE rate.
(29) Still, there is a procedure for getting an enhanced rate for a student despite the agreement. (40)
For the current school year, the Student’s providers are again , and also . (23) She received per week. (24) Ms.
replaced Ms. because the Student had not been making adequate progress. (50) Ms. provides the services times a week, and Ms.
provides the services times a week. (50) Sessions are an long. (50)
Ms. has been receiving an enhanced rate for her services for the past years. (52) She requests , sometimes she gets , sometimes she gets .
(52)
These are both certified teachers. (27) They are not members of New York State United Teachers and do not teach in New York City schools. (28)
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of
2007.
The Individuals with Disabilities Education Act (IDEA) confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools. Section 3602-c of the New York Education Law requires the provision of special education services to children with disabilities who are enrolled by their parents in nonpublic schools provided that a request for such services is filed with the board of education on or before the first day of June preceding the school year for which the request is made. N.Y. Educ. Law Sect. 3602-c (2)). Education for students with disabilities means special education programs "designed to serve" students with disabilities. N.Y. Educ. Law Sect. 3602-c(1)(d). Subdivision 2 of section 3602-c of the Education Law requires boards of education to furnish appropriate special education programs to students with disabilities privately placed by their parents in nonpublic schools. These services can be provided to children with disabilities, in appropriate circumstances, according to their individual needs, either in the regular classes of the public schools or elsewhere, including at the nonpublic school the student attends. Bay
Shore Union Free Sch. Dist. v. T., 2005 WL 3489246 (E.D.N.Y. Dec. 21, 2005); Application of the Bd. of Educ., Appeal No. 04-079.
On a case involving claims pursuant to allegations per Section 3602-c of the Education Law, the same standards apply as in a case containing IDEA allegations. The
District must show that it offered parents a free appropriate public education (FAPE). A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the law, and (b) the IESP developed by its Committee on Special Education (CSE) is reasonably calculated to enable the student to receive educational benefits.
The District contends that has provided the Student a FAPE by offering the providers in question with the contractual rate for services. There is no testimony on the record that Ms. , the provider for sessions per week for the 2014-2015 school year, should receive anything but the contractual rate.
In regard to Ms. , this individual testified that while she did sign an agreement for the contractual rate, she also indicated that she is entitled to a higher rate.
Ms. indicated that the Student needed a higher level of service given her issues, and that there is an understanding between the parties that such a provider would be able to receive a higher rate. Ms. indicated that she receives anywhere from to an for providing her service.
Ms. is in essence offering parol evidence in connection to the agreement at issue. I find that evidence of custom between the parties should be admissible here to determine the meaning of the contract. There is no rebuttal from the DOE that there is a custom between the parties of having Ms. get an enhanced rate. I will therefore find that the District denied the Student a FAPE by denying Ms. an enhanced rate, and order that Ms. receive an enhanced rate of an for the 2014- 2015 school year.
ORDER
As a result of the foregoing, the Department of Education is ordered to pay Ms.
for all the sessions she has provided for the Student for the 2014-2015 school year, up to per per session. All of the parent’s other requests for relief are denied.
Dated: April 16, 2015
Corrected Date: May 20, 2015 (Correction made to cover page)
.
Impartial Hearing Officer
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 RECORD
PARENT
A Student's Report Card at , 2 pages
B Teacher Progress Report 7 pages
C Student Work Sample, 2 pages
D IESP, Implementation Date 9/6/12
DEPARTMENT OF EDUCATION
1 P-3 P-4 Letter dated 9/9/14, 2 pages
2 P-3 P-4 Letter dated 9/9/14, 2 pages
3 Due Process Complaint dated 11/14/14, 3 pages
4 State Ed Certification Document, dated 9/6/12, 1 page
5 State Ed Certification Document, dated 9/3/13, 1 page.
6 P-3 P-4 for School Year 2013-2014, Dated 10/17/13, 2 pages
7 New York City DOE Independent Provider Registry dated 1/15, 2 pages