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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: May 7, 2015
May 21, 2015
Actual Record Closed Date: June 25, 2015
Hearing Officer: Sharyn Finkelstein, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 7, 2015
FOR THE STUDENT
Attorney
Parent
FOR THE DEPARTMENT
Attorney
(via telephone) School Psychologist
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 21, 2015
FOR THE STUDENT
Attorney
Mother
Father
(via telephone) Literacy Specialist/Special Educational
Teacher
(via telephone) Teacher,
(via telephone) Head of
FOR THE DEPARTMENT OF EDUCATION
Attorney
(via telephone) Teacher Assigned Committee on Special
Education
INTRODUCTION
I was appointed to hear the matter of (“ ”) pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415 (f) (1) for the 2014- 2015 school year. I held a pre hearing conference after the end of the resolution period.
The parties moved to extend the compliance date on various occasions in light of witness availability. 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 explore their positions in accordance with the requirements of due process was greater than any delay in the resolution in this matter. Accordingly, the joint request for extension of the compliance dates were granted. The parties requested to write a closing brief. I received them on June 25, 2015 and the record was closed. A list of persons who attended the hearing and evidence that was submitted is attached.
BACKGROUND
is a year old student who presently attends the as a student. On November 13, 20144 the Committee on Special Education (CSE)
convened and developed an IESP for for the 2014-2015. She is classified with a which is not in dispute. The team recommended a program of (“ ”) in a small group times per week in the classroom and times per week in a separate location and individual and in the classroom and in a separate location. Her parents were given a list of providers, however, they were unable to find a provider who would work at the NYS approved rate for the periods of time that they requested. The parents found a provider willing to work with at the enhanced rate. They had been using this provider since September 2014. The parents bring this hearing to obtain reimbursement for the monies paid to their provider from September 2014 at the enhanced rate and direct payment to their provider for the remaining services during the 2014-15 school year. They seek compensatory damages in the forms of services for additional hours due to the Department's failure to provide service prior to 2014-2015
school year.
DEPARTMENT'S POSITION
The Department was represented by their attorney Ms. . It is their position that the Department developed an Individualized Education Service Program (“IESP”)
that was based on 's individualized needs. They argue that the parent did not specifically allege the relief that is requested. Additionally, they argue that even if the request for the enhanced rate is considered, the request should be denied, because the Department was able to identify an available provider.
PARENT'S POSITION
The parents were represented by their attorney Ms. . They maintain that the Department of Education failed to offer a Free and Appropriate Public Education (FAPE) for the 2012-2013 and 2013-2014 under the Child Find Provisions. They argue that there was no provider provided by the Department and the parents are entitled to reimbursement for monies paid to the provider they found for as well as direct funding for the remaining of services as mandated by the IESP. It is their position that the parents are entitled to compensatory for any services not provided prior to the 2014-2015 school year.
FINDINGS OF FACTS
MS. (hereinafter also referred to as “Mother”) is 's mother.
has attended since . She presented in with lots of issues and Mother knew required small classes.(Tr. 115) She began with a after school for the whole year in or .
Mother met with 's teacher and learned that was very behind in . Parents decided that it would be great for 's teacher to act as her or . (Tr. 117-118) They got her help in the because her levels were very low. They were still using the teacher (Tr 118)
In parents started calling the public schools. They called and Dr. saw and identified her as having some kind of disability with
(Tr 119) began receiving help a week at and her parents hired someone to help days a week at .
Mother met with 's teachers every month to see progress and asked for help. She made a referral to the Committee on Special Education in September of this school year. (Tr. 121)
Ms. works at the Committee on Special Education as a school psychologist. She held 's IESP meeting. She was the district representative and school psychologist. (Tr. 43)
They conducted an initial evaluation ( ) that looks at 's performance on standardized tests which evaluated her overall cognitive potential across four areas of intellectual domain. They looked at her academic achievement score in relation to other students. They administered a standardized battery of tests. (Tr. 16)
's primary deficit was found to be in her awareness. It is related to development, ability and understanding structure of as well as both listening and comprehension. (Tr. 13)
The meeting was approximately an and a . The only person at the meeting who had worked with was who is the teacher who had worked with in the Class. She discussed what she was working on and 's progress. (Tr 54)
Part of the process during the social history interview is to review the parent rights and provide them with a procedural handbook. (Tr 17)
The team recommended periods of , using both and the model as well as and . (Tr.13) They are working on developing 's ability, on her following directions, and on her comprehending texts. This is carried over from subject to subject. (Tr. 14)
is years below level grade level in (Tr 37) is struggling across the board in comprehending material whether it is or
(Tr 37)
The team did not recommend during which subjects the provider would work with . (Tr. 14) The primary focus of the meeting was to identify targeted areas of deficit and to work out interventions that would help . They did not target specific subjects areas (Tr. 55)
Parents did not hear anything after the meeting and called the social worker around December 7. (Tr. 126) On or about December 17, 2014 parents still had not received the IESP. (Tr. 127) Mother received forms for authorization for independent
( Exhibit J and C)
Mother spent hours and days calling every phone number on the list (Tr 130) Not one person could come and help them (Tr 130) (Exhibit B with handwriting and notes)
They had no time during the school day as far as she could remember (Tr 154)
Mother had heard about enhanced rates and was advised to put a request in . (Exhibt B) Ms. is certified in Connecticut as a special education teacher.
(Tr. 108) She is not New York certified but has qualifications necessary for New York State certification as a special education teacher (Tr 98) Her certification is being processed.
Mother found Ms. from (Tr 141) She began working with as her literacy specialist in September 2014 for about . (Tr. 100)
Mother, the teacher and Ms. determined the schedule which consists of to days a week depending on finances. Parents paid dollars an in cash. (Exhibit I)
Parent was told that enhanced rate was approved. (Tr. 133) Parents found out at the end of January that was not accepted as a provider. (Tr 133)
MS. is Teacher Assigned at CSE . She is a teacher for grades through and a special education teacher and building leader. (Tr. 65)
was an escalated case that was sent to her and it was her job to find a provider.
(Tr. 66)
They found a for , Ms. , through the
. She reported this to the parents through a letter (Tr 68) She included the P4 form so that they could get started with the services (Tr. 70) The form is an authorization for .
Mother contacted (Tr 135) The owner gave her the name of the provider who she spoke with and she was unable to accommodate the times (Tr 137)
She communicated with the Department and they said they would try and find someone else.
The Department received a letter from 's mother stating that Ms.
was not able to provide services (Tr 71)
Ms. wrote a second letter to the parents because she had found another provider, Mr. , to come to the school and to work with for and her periods. He confirmed with her that he was able to provide the services during the indicted time at the school. (Tr. 72)
Ms. left Parents a message about at the end of February (Tr
134) Mother spoke with in February (Tr 138) The first time he had said that he would be available. During the second conversation he stated that he absolutely could not do the times needed (Tr 139) She had 's schedule in front of her when she spoke with him. (Tr. 139) She advised the Department that was not available (Tr 140)
Parents indicated that he could not provide services due to a gap in the schedule (Tr. 73) Parents continued services with Ms. who had already been working with .
Ms. works with on an average of , always at the same time. The class is doing literacy when she , She works primarily on literacy but if there is vocabulary or types of things that can be integrated they try to make everything as consistent for her as possible and support her overall.
's her primary needs are her foundational literacy skills. She has very specific needs and her foundational skills need direct instruction. It is difficult to meet 's needs in the classroom setting. They work on her and automatic word recognition and her fluency. The primary goal would be to build 's foundation in literacy (Tr 102) 's fluency is not where it needs to be for for her to read on her grade level. Her foundational skills impact her overall academics (Tr 103)
Ms. collaborates with the classroom teacher and designed a very deliberate specific program based on her needs (Tr 111) She has a few times for and for history. (Tr. 112)
MR. is head of school at the where attends. He is responsible for curriculum and instruction, pupil personnel, fiscal accounting and daily operations of school including the supervision of professional staff. He encouraged family to apply for services through the CSE.
They follow a balanced literacy approach and it is a literacy rich curriculum.(Tr.
169) is in a classroom with a lot of literacy. They follow the and . These are the only standalone subjects.
receives during her during the guided block (Tr 173)
Her fluency and accuracy issues adversely affect her comprehension and the students in her class are at a different level. is during literacy and she is receiving the instruction that she needs (Tr 173)
MS. has been a teacher at the for the past years (Tr
176) The class consists of with an age range from to . is in her class and requires a lot of support to help her with texts.
struggles with fluency and comprehension (Tr 178) The day begins with . They have guided at the same time between . They have at the end of the day. (Tr. 180)
is in the morning and works with her specialist when class is doing guided . In the afternoon she receives to help with because it is a very wordy program. She explained that those are the periods when it is most essential for her to have the support to succeed. (Tr. 182)
is making progress. At the beginning of the year her overall level was about years below where she should have been starting . It was difficult for her to fluently read and decode the text and to understand the text. She has made approximately a years worth of growth and both her accuracy in her and her ability to understand the text has increased. She has developed some strategies and skills that she is generalizing into other things. She is still quite below where she needs to be but there has been an increase in every area. Her has increased from
. (Tr 107)
's confidence is better. Her levels have improved. Her skills and her strategies in trying to figure out how to read the words on the page has changed (Tr 144)
Ms. opined that is absolutely benefiting from the services and described her as make “ ” (Tr. 182)
The parents paid . (Exhibit I)
FINDINGS OF FACT AND CONCLUSONS OF LAW
It is well established that reimbursement for privately obtained educational services may be awarded when a school district fails to provide a child with a FAPE.
School Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359, 369-370 (1985).
Awarding such reimbursement requires the court to find that the District failed to provide an appropriate educational program, the private services are appropriate and equitable considerations support the parent’s claim. The analysis has been extended to allow a parent to obtain compensatory/make-up services if FAPE was denied. See Burr v.
Amback, 863 F.2d 1071, 1078(2nd Cir. 1988), Application of a Child with a Disability, Appeal No. 94-06.
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wagner v. Canasota, 979 F. Supp. 147 [N.D.N.Y. 1997])
Schools are required to locate, identify and evaluate all children with disabilities .
The Child Find mandate applies to all children who reside, within a State, including children who attend private schools and public schools, highly mobile children,migrant children homeless children and children who are wards of the stated. (20 U.S.C.
1412(a)(3)(B); 34 CFR 300.111(d)).
This includes all children who are suspected of having a disability, including children who receive passing grades and are “advancing from grade to grade.” (34 CFR 300.111(c))
One of the main purposes of the Individuals with Disabilities Education Act IDEA (20 U.S.C. §§1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. §1400[d][1][A]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written Individualized Education Program (IEP) (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. §300.347.
A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.
(Application of a Child with a Disability, Appeal No. 04-046;. '" that must likely produce progress more than trivial advancement. See id. at 195 (quotation and other citations omitted)
In this case is there is no allegation that the IESP was not appropriate. The issue in this case centers around the ability of the DOE to find a provider for the services mandated in the IESP. The Department did not approve Ms. at the enhanced rate. The only explanation was that she was not certified in New York. Ms.
testified that there had been an issue with lost paperwork and a transcript was misplaced (Tr. 98) She works with other students in New York City school districts. Parents pay her directly and the Board of Education reimburses the parents. (Tr 99) I find that the Department provided no basis for refusing to accept her as the provider for . This is important to prong one as well as prong two, because, had they accepted her there would have been no need to look for additional providers. Even with that, if the Department was able to find a provider they would still have met their burden.
Attorney for the Department argues that the Department did in fact find providers but it was the parents who declined their services because they were not available during the hours that they unilaterally decided were required. She argues that there is no allegation in the due process complaint that the should have been provided during specific subjects.
It is true that the IESP does not indicate specific subjects for to receive services and there was testimony from the Department's witnesses explaining the reasons why they were not specified. The IESP is vague with respect to when the services should take place and it is left to someone to figure out when the services should be given to . There was testimony from Ms. that she and the parent and the teacher figured this out together and testimony as to why these were the appropriate times. I find that there are no better people qualified to make this decision. had begun receiving these service from Ms. in September. I find no reason for 's schedule which was very specific and planned, to change to perhaps accommodate a different provider. I find that the parent is entitled to a provider who was available during the times that required the . I find that anything else would defeat the whole purpose of .
Additionally there is conflicting evidence about whether a provider was found.
It is undisputed that the from was unavailable in the mornings. I find that this renders her inappropriate.
The only issue is whether Mr. was available to provide services. The
Department's witness stated that he was contacted and remained available.
Parent stated that in fact he advised her that he was unavailable. Department's witness did not speak with Mr. . Ms. had advised her that Mr. was available. (DOE Exhibit 3) Attorney for the parents argues that the simplest way of resolving any inconsistency would have been to have Mr. testify or submit an affidavit. I agree with her argument and find that the Department has failed to satisfy their burden.
With respect to prong 2, as discussed above, it is undisputed that the only reason the Department did not approve Ms. was because she was not certified in New York. There is no such requirement. There is undisputed testimony from all parties who know that she has made progress as a result of the services. She testified that she charges per session which is not at the higher end of her rates. I find that the parents met their burden under prong two.
With respect to the equities I find that the parent did everything to cooperate with the Department. Mother testified as to her calling many many people from the list provided to her from the Department. She testified as to her reaching out to the two specific providers that were given by the Department. I find that nothing would bar the parents from relief.
The parents paid for the services in cash and submitted evidence of payment.
(Exhibit I)
With respect to Child Find, the evidence is undisputed that had been having difficulties since . Her mother credibly detailed the services that the parents provided on their own in order to help with school. I find that the Department did fail to meet their burden under Child Find for the 2012-2013 and 2013- 2104 school year. Certainly by the time was in this school year she desperately required services.
There is no requirement that a student be awarded the exact number of hours that were missed. In this case there was testimony about the progress that has made.
Parent's attorney argues that has missed of services because Parents were unable to pay for the mandated number of services. They request these services to be made up in the . I find that this is an unreasonable and unrealistic request.
has never received that many services per week and I find that it would be unfair to expect her during the to be over loaded with services. I find that although she has made progress it is undisputed that she is still in need of services. I find that she should receive as “ ” “ ” in the amount of hours per week for weeks in the . I find that Parents are entitled to use the hours in any manner they deem fit provided that they are used prior to the first day of school.
I find that the Department failed to meet their burden under prong one. I find that the parents met their burden under prong two and equities support the parents. I find that Parents are entitled to reimbursement for any monies they paid to Ms. from September 2014 until the end of the school year.
ORDER
The Department shall reimburse the parents for monies paid to Ms. from September 2014 until the end of the school year upon proof of payment.
The Department shall pay Ms. directly for any payments not made for the 2014-2015 school year upon proof of services at the enhanced rate of .
The Department shall reimburse Parents for any monies paid during the to Ms. at the enhanced rate of and directly pay Ms. for remaining services during the up to hours used prior to the new school year.
Dated: July 9, 2015
SHARYN FINKELSTEIN, 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
FOR THE STUDENT
A Request for Due Process Hearing March 4, 2015 4 pgs
B Parents' Letter to CSE February 17, 2015 8 pgs
C Authorization for Independent December 8, 2014 2 pgs
D Psycho Educational Evaluation October 7, 2014 7 pgs
E Letter to CSE September 15, 2014 1 page
F Undated Curriculum Vitae of 3 pgs
.
G Affidavit by March 27, 2015 1 page
H Affidavits of April 3, 2013 2 pgs
I Invoices for various dates 6 pgs
J Authorization for Independent December 8, 2014 2 pgs
K Closing Brief June 25, 205 14 pgs
DEPARTMENT
1 Social History Evaluation October 7, 2014 1 page
2 IESP November 13, 1014 10 pgs
3 Emails Concerning Provider Various 18
4 Closing Brief June 25, 2015 2 pgs