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FINDINGS OF FACT AND DECISION
Case #: 166263
Student’s Name:
Date of Birth:
Hearing Requested by:
Date of Hearing: 6/29/17, 8/4/17, 9/11/17, 10/27/17,
11/29/17, 1/29/18, 4/12/18
Actual Record Close Date: 5/3/18
Hearing Officer: Jeanne M. Keefe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE HEARING
6/29/17 hearing date:
advocate (via phone) — Student
No appearance — District
8/4/17 hearing date: — District
Advocate (via phone) — Student
District Representative — District
9/11/17 hearing date: — District
Advocate (via phone) — Student
District Representative — District
11/29/17 hearing date: — District
Advocate — Student
District Representative — District
1/29/18 hearing date: — District
Advocate (via phone) — Student
District Representative — District
— District
4/12/18 hearing date: — District
Advocate — Student
Achieving — Student
District Representative — District
— District
INTRODUCTION
On May 22, 2017, I was appointed as the Impartial Hearing Officer (“IHO”) by the New York City Department of Education (“the District” or “DOE”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, §1415 (f) (1) concerning a dispute involving the special education program for or “the student”) for the 2016-2017 school year. On September 19, 2017 I was appointed as the IHO by the District to hear a dispute involving the special education program for
- for the 2017-2018 school year. On October 3, 2017 an order was issued consolidating the claims for the 2016-2017 and 2017-2018 school years.
BACKGROUND
- is a -year-old student who currently attends school with a disability classification of Speech or Language Impairment. The Parent asserts that the District failed to schedule an annual review meeting or develop an appropriate Individualized Education Service Program (“IESP) for the 2016-2017 and 2017-2018 school years. The Parent asserts that the District has failed convene and IESP or IEP meeting for District failed to provide
•
since 2013.[1] The Parent maintains that in doing so the with a free and appropriate public education (“FAPE”). The Parent seeks, among other things, that the District prospectively pay the student’s special education provider for 5 hours per week of Special Education Teacher Support Services (“SETSS”) at an enhanced rate for the period from September 1, 2016 through June 30, 2017 for the 2016-2017 school year and from September 1, 2017 through June 30, 2018 for the 2017-2018 school year. (Ex. A, B, C)
A pre-hearing conference was held on 6/29/17, at which the District failed to appear. The Parent advised that there had been no IESP for several school years and she believed it would settle. The matter was adjourned for a settlement status hearing. (t. 2-6) The parties appeared on 8/4/17 and advised that the case was still under investigation for settlement. The case was then adjourned to
9/11/17 for the District to present its case. (t. 20-29) At the request of the Parent the 9/11/17 date was converted to a settlement status hearing for various reasons. The case was adjourned to 10/27/17 for the District to present its case. The case was again adjourned for the District to present its case to 11/29/17.
On 11/29/17 both parties appeared, the District was not ready to present their case, as they had no witnesses or evidence. The District was held in default. (t. 48-59)
The case was adjourned twice, once for settlement status as the parties remained hopeful that the matter would settle and once for the Parent to present their case. On 4/12/18 the Parent presented one witness and entered evidence in to the record to support their case. The case was concluded on 4/12/18.
The District does not dispute that the 5 hours of SETSS services per week as set forth in the due process complaints and the IESP have been provided, are appropriate as provided and that the student is making progress. The District does not dispute that there has not been an IESP/IEP meeting since in or around
2012. The Parent agrees that the student has been receiving speech and language services and abandons the relief sought for compensatory services for speech and language therapy. The only issue in the hearing is whether the enhanced rate of $125 per hour for SETSS services is appropriate. (t. 98-105, Ex. A, B, C)
FINDINGS OF FACT
- is recommended for SETSS 5 times per week in the IESP dated 12/13/13. The Parent submitted lists of providers contacted to try and arrange for SETSS for the school years at issue.
testified that she is employed by an agency which provides, among other services, SETSS services. The SETSS services are provided at an enhanced rate and does not accept the DOE rate. testified that she was familiar with the New York City Department of Education’s Special Education Teacher Support Services Independent Provider Registry
(“Registry”). She was unsure whether was on the Registry but testified that they did not request to be put on it. had a theory of how they could possibly be placed on the
Registry but did not really know. She testified that there is no agreement between and the DOE and that they have never accepted the DOE’s rate for services provided to
-- .
testified that the enhanced rate for the 2016-2017 and 2017-2018 school years is $125 per hour for SETSS services and that those services have been provided to
• for 5 hours per week for those school years and that
- continues to receive the service. testified as to the breakdown of the $125 per hour. She believed that the SETSS teacher is paid in or around $90 per hour though she conceded that she was not sure of the exact amount. The teachers are provided with professional development and the students are provided with iPads with educational apps and focusing apps. (t. 120-26, 129-31, Ex. D, E, F, G)
CONCLUSIONS OF LAW
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. §1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v.
Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir.
2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. §1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. §1414 (d); 34 C.F.R. 300.320). As noted by the State Review Officer (“SRO”) in Application of a Student with A Disability, Appeal No. 11-068 the burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition for a unilateral placement has the burden of proof regarding the appropriateness of such placement. (N.Y. Education Law § 4404 (1) (c); see MPG v. New
York City Dep’t of Educ., 2010WL3398256 at *7 (SDNY Aug. 27, 2010). In the case at hand the Parent is seeking SETSS services for five periods per week at an enhanced rate of $125 per hour for the 2016-2017 and 2017-2018 school years. I find that the District failed to provide
• with FAPE for the
2016-2017 and 2017-2018 school years. The District failed to present any witnesses or evidence to establish that FAPE was provided to
• for the school years at issue. The District does not dispute that there has not been an IESP/IEP meeting for the school years at issue. In addition, at no time did the District dispute the position of the Parent other then to dispute the appropriateness of the enhanced rate of $125 per hour. While the District disputed the appropriateness of the enhanced rate charged by there is nothing in the record to support this position. I credit the testimony of when she testified that does not accept the DOE rate and her breakdown of the hourly rate. As this is a case involving services only, the burden does not shift to the Parent. The District does not dispute that the 5 hours of SETSS services per week as set forth in the due process complaints and the IESP have been provided, are appropriate as provided and that the student is making progress.
ORDER
Therefore, it is hereby ordered that that the New York City Department of Education pay for the SETSS services of five hours per week at an enhanced rate of $125 per hour provided to
• school year for a total of $25,000 and for the SETTS services provided at an enhanced rate of $125 per for the 2016-2017 hour for the 2017-2018 school year for services already rendered and prospectively to the end of the school year.[2]
Dated: May 4, 2018
___________________________________
Jeanne M. Keefe
Impartial Hearing Officer
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.
Directions and forms can be found on the Office of State Review website:
http://www.sro.nysed.gov/RevisedRegulationsOverview.html
DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 29, 2017
A. IESP, dated 12/13/13, 6 pages Parent
DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 12, 2018
B. Impartial Hearing Request 2016-2017 dated 5/22/17, 2 pages Parent
C. Impartial Hearing Request 2017-2018 dated 9/11/17, 2 pages Parent
D. List of providers contacted by parent for 16-17 school year, undated, 2 Parent pages
E. List of providers contacted by parent for 17-18 school year, undated, 4 Parent pages
F. Affidavit of 16-17, dated 4/11/18, 1 page Parent
G. Affidavit of 17-18, dated 4/9/18,[1] page Parent
H. Certification, various dates, 2 pages Parent
2. Affidavit of 16-17 and 17-18, 4/9/18 &6/20/17, 2 District pages
POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER
I. Statement of Adjournments and Extensions, undated, 1 page IHO
II. Order on Consolidation dated 10/3/17, 2 pages IHO
Footnotes
[1] The transcript reflects in various places that there has been no IESP since 2012, however the IESP entered in to evidence and the due process complaints reflect an IESP and meeting in 2013. (t. 101, Ex. A, B, C)
[2] The parties were advised to be sure to address all issues, and relief requested, set forth in the due process complaint or they would be deemed abandoned. (t.99-100)
[1] New York City Department of Education Registry dated 4/4/18, 4 pages District