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FINDINGS OF FACT AND DECISION
Case Number: 164601
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: January 13, 2017
Actual Record Closed Date: January 19, 2017
Hearing Officer: Dora Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 13, 2017
Parents
Parents
District Representative — DOE
Ms. , the mother of , filed a request for an impartial hearing on November 22, 2016, requesting that her daughter be provided with all of her related services through Related Services Authorizations (“RSA’s”) outside of school, rather than at her school where . She also requested make-up (compensatory) related services for services which have not been provided. (IHO Ex. I).
I was designated to hear this matter on November 22, 2016. An impartial hearing was held on January 13, 2017. At the request of the school district, the compliance date was extended to March 8, 2017, to allow me to obtain the transcript and render a decision.
(IHO Ex. II).
At the hearing, the parent stated that her daughter was receiving her , through a DOE contracted Agency, at school; and that she was no longer requesting that those be provided pursuant to RSA’s. The remaining issues for hearing were whether RSA’s should be issued for ; and whether should be awarded compensatory . (Tr. pp. 15-16). The parents are requesting compensatory services from September 2016. (Tr. p. 40).
Evidence at Hearing
is a with a classification of . Her classification is not in dispute. (IHO Ex. I; III). She is a student at (hereinafter “the school”). (IHO Ex. I). She also attended at the school. During her year, she received .( was provided outside of school, pursuant to an RSA, and she did not receiving during her year). (Tr. pp. 34-35). Ms. explained that
. (Tr. p. 34).
Ms. testified that she began communicating the request for RSA’s to Ms.
, the CSE Chairperson, in August 2016, but did not receive a response. (Tr.
pp. 25-26).
On September 30, 2016, Dr. , ’s , prepared a letter recommending that be provided outside of school.
She wrote that if “
.” (IHO Ex. II). Ms. provided this letter to the CSE both before, and at the October 6, 2016 IEP meeting. (Tr. pp. 18, 25, 28).
Notwithstanding Dr. ’s letter, the CSE recommended that all of ’s related services be provided at school. In an IEP “to be implemented October 7, 2016”. [1]
The recommended program consists of
; with related services of ;
; and . All related services
sessions are in duration. (IHO Ex. III).
For , ’s goals include
; and . For , her goals include .
(IHO Ex. II, pp. 6-7). The IEP notes that Ms. expressed concern about
; and that there was a discussion about
; however the parent rejected this option, and it was not made part of the IEP. The CSE recommended that take place at a separate location, in the provider’s office. (Id. at 9, 14).
Ms. acknowledged that have been offered to at school (through a third party agency) since sometime in September 2016; but that she has not receive the service, because the parents do not wish for her to receive the service at school, due to concerns that it will impact her negatively academically. (Tr. p. 18-20).
She testified that
. In contrast, the can be provided outside of school, including weekends. (Tr. p. 23, 34).
She testified that
. (Tr. pp. 32-33).
At the hearing, she explained that while ’s year was successful; due to the , . She disagreed with Mr.
’s testimony that the goals worked on in relate to . (Tr. pp. 32-33).
Department of Education (“DOE”) Position
The DOE’s position is that the CSE appropriately recommended that all related services be provided at school; and that the student is not owed compensatory services, as all services were made available to her at the start of school, as provided in her IEP. (Tr. p. 43)
,a , testified that it is the DOE’s obligation to provide the student with an educational program within the school environment. (Tr.
p. 21). He testified that the IEP team determined that it is educationally appropriate for to receive her related services during school hours; and that her related services help her . (Tr. p. 22). He cited, as an example , where
, . (Tr. p. 24).
Findings of Fact, Conclusions of Law and Order
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982]. An appropriate educational program begins with an IEP that 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 Student with a Disability, Appeal No. 11-043.
In the circumstances of this case, I find that ’s individual needs require that be provided to her, outside of school, as recommended by Dr. .
The student’s goals (
), have no relationship to her goals, as suggested by Mr.
. I see no benefit to . On the other hand,
.
In the case of , where ’s goals include , there may be some benefit to . Although was discussed for , it was not made part of the IEP. Therefore, I do not consider whether it would have been appropriate for , as the IEP recommends that it be provided, outside the classroom, at a separate location.
I am persuaded by Dr. ’s opinion that
. Therefore, I find that the CSE’s
failure to provide for to receive outside of school constituted a denial of
FAPE.
Compensatory Remedy
In P. v. Newington Board of Education, 512 F. Supp. 2d 89 (D. Conn. 2007); the Second Circuit held that upon a finding of a denial of FAPE, a hearing officer may fashion an appropriate remedy, including compensatory education to make up for a denial of FAPE.
Inasmuch as I have found that the CSE should have recommended that be provided outside of school, as recommended by her doctor, I also find that she is entitled to compensatory from October 7, 2016, the date when the IEP was to be implemented.
Order
For all of the foregoing reasons, it is hereby ordered that the DOE shall immediately issue RSA’s for to receive , retroactive to October 7, 2016.
Dated: January 24, 2017
DORA LASSINGER, ESQ.
Impartial Hearing Officer DL:
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
IMPARTIAL HEARING OFFICER
I Request for impartial hearing, 8/18/16, received 11/22/16, two pages
II Letter from , 9/30/16, two pages
III IEP, 10/7/16, 15 pages
IV Case Follow Up Sheet, 1/13/17, 1pp
Footnotes
[1] Although the IEP references a meeting date of February 1, 2016 (IHO Ex. II, p. 13); Ms. testified that the meeting took place on October 6, 2016. Her testimony is consistent with the implementation date, and the other information in the IEP which indicates that it was written following a assessment, which took place in September 2016. (IHO Ex. III, Tr. p. 27).