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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 19, 2014
February 5, 2015
Actual Record Closed Date: March 4, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 19, 2014
For the Student:
Parent/Mother (Via Telephone)
For the Department of Education:
CSE- and Chairperson Designee
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 5, 2015
For the Student:
parent
For the Department of Education:
CSE Representative
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 December 19, 2014.
The Student is a year old girl classified as a student with a and . She attends a private school and is eligible for services pursuant to an Individualized Education Services Program.
The Complaint alleged that the Student requires “enhanced rate” at the rate of per .
The District’s opening statement conceded that the Student has been denied a free appropriate public education (FAPE).
The District did not present a case.
FINDINGS OF FACT
The Student has a and needs
Her IESP provides for period of per week. (DOE Exh. 1)
The parent could not find a provider who accepts the Department of Education “rate.” (14) As a result, she found her own provider. Her provider is particularly invaluable in the way she works with the Student. She understands how to . (12-13) She works on her , her , (17-18) The provider’s name is . (15) She charges an . (15)
The Student goes for minutes, through . (18-19)
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 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 Individuals with Disabilities Education Act (IDEA) allegations. The District must show that it offered parents a 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 CSE is reasonably calculated to enable the student to receive educational benefits.
The District has conceded on the first prong. The parent has offered sufficient unrebutted testimony that the provider, Ms. , is providing the Student with valuable services that are necessary for the Student to benefit from her mandate. There is no objection from the school District.
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 periods of per week.
Dated: March 18, 2015
, ESQ.
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 THE RECORD
PARENT
A Teacher Progress Report, 4 pages
DEPARTMENT OF EDUCATION
1 IESP, 7/25/13, 8 pages
IMPARTIAL HEARING OFFICER
I Due Process Complaint, 4 pages.