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FINDINGS OF FACT AND DECISION
Case Number: 171426
Student’s Name:
Date of Birth:
District Number:
Date of Hearing: 12/27/18
Record close Date
Hearing Officer: Gary D. Peters, Esq.
Names and Titles of Persons who Appeared
Advocate Parent
DOE Designee Dep’t of Education
PARENT’S EVIDENCE
A. DEMAND FOR DUE PROCESS 12/11/17 4 pages
B. IEP 5/25/16 20 pages
C. IESP 3/29/17 9 pages
D. Parent OutReach 2017/18 2 pages
E. Affidavit of Services 3/20/18 1 page
F. Provider’s License — undated 1 page
INTRODUCTION
On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case # 171426. The hearing was conducted at the impartial hearing office, New York City Department of Education at 131 Livingston Street, Brooklyn, New York. The Department of Education, hereinafter referred to as the “DOE” was represented by their designee and the parent was represented by their Advocate
BACKGROUND
(the “Parent’’), on behalf of her son, filed a due process complaint on December 11, 2017. The Parents alleged that the New York City Department of Education (“DOE”) failed to provide with a Free Appropriate Public Education (“FAPE”) for the 2017-18 school years. is a boy and was classified as a Pre Schooler with a Disability. The last agreed upon IEP of 5/25/16 in order to address the child’s needs recommended a host of supports, including SETSS five times per week for 2 hours per day.
PARENT’S CASE
Parent’s Advocate offered the above evidence into the record and is seeking SETSS at an enhanced rate of $100.00 per hour for the 2017-2018 school year as follows: 5 times per week for two hours per day.
DEPARTMENT?’S CASE
In this case, the DOE completely failed to meet its burden of demonstrating the appropriateness of its actions, presented no witnesses, and failed to offer a credible defense on the claims presented by the Parent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This hearing was requested pursuant to the Individuals with Disabilities Education Act (the “IDEA’’) (see 20 USC § 1400 et seq.). “Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education...designed to meet their unique needs[and] to ensure that the rights of children with disabilities and parents of such children are protected” (M.H. v. N. Y. C. Dept. of Educ., 685 F3d 217, 223 (2d Cir. 2012) (citing 20 USC § 1400(d)(1)(A)-(B))). Further, “a school district’s program must provide ‘special education and related services|,’ tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits.” (M.H. v. N.Y.C. Dept. of Educ., supra, at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105,107 (2d Cir. 2007) (internal citations omitted)).
School districts are required to formulate an Individualized Education Program (IEP) for each student with a disability in order to deliver appropriate services to that child. It is “[t]he centerpiece of the IDEA’s educational delivery system” (M.H., supra, at 224 (quoting D.D. ex rel. V.D., 465 F3d at 507)). Moreover, “for a child’s IEP to be adequate, it must be “[‘]likely to produce progress...and afford the student with an opportunity greater than mere trivial advancement’” (Id. (quoting T.P. ex rel. S.P. v. Mamaroneck
999
Union Free Sch. Dist., 554 F3d 247, 254 (2d Cir. 2009))).
It is fundamental that the CSE’s placement recommendation must be based upon the student’s needs (34 CFR §300.116(b)(2), and that the IEP must be based upon current evaluations (SRO 11-126 at 20). 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.” SRO 08-052; SRO 08-060 (citations omitted).
Federal regulations require that, once an IEP is adopted for a disabled child, “[e]ach public agency shall ensure that (1)[a]n IEP ... [i]s implemented as soon as possible following the [TEP] meeting (D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503, 508 (2d Cir. 2006) opinion amended on denial of reh'g, 480 F.3d 138 (2d Cir. 2007)). New York State regulations mandate that “there may be no delay in implementing a student's IEP” (8 NYCRR §200.4(e) (1)(i)), that “the school district shall ensure that each student with a disability has an IEP in effect at the beginning of each school year” (8 NYCRR §200.4(e) (1)(i1)), that the “the school district shall ensure that the recommendations on a student’s IEP... are implemented” (8 NYCRR §200.4(e) (3), and that “the school district must provide special education and related services to a student with a disability in accordance with the student's IEP” (8 NYCRR §200.4(e) (7)). The IEP of each student with a disability shall be reviewed and, if appropriate, revised periodically, but not less than annually, to determine if the annual goals for the student are being achieved. (8 NYCRR §200.4 (f))
Here, the DOE did not meet its burden of demonstrating that it provided with a FAPE. First and foremost, the DOE failed to provide the child with and pay for SETSS services. The DOE presented no witnesses and did not rebut any of the Parent’s evidence.
The equities favor the Parents; a parent must act with a high level of “unreasonableness or misconduct” in order for such conduct to raise an equitable bar to relief. N.R. ex rel. T.R. v. Department of Educ. of City School Dist. of City, 2009 WL 874061 (S.D.N.Y.). In the absence of evidence demonstrating that the Parent failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support an equitable remedy sought by the Parents. /d. Further, the notion of equities requires a balancing of both parties’ conduct and interest. Wolfe v. Taconic Hills Central School District, 167 F.Supp.2d 530 (N.D.N.Y. 2001); SRO No. 04-045 (balancing the cooperation of the parents and the significant extent to which district failed to offer a FAPE, reimbursement was awarded).
The DOE bore the burden of proof regarding equities. Application of a Student with a Disability, Appeal No. 13-200; N.Y. Educ. Law § 4404(1)(c). In this case, the DOE provided no evidence demonstrating lack of cooperation on the part of the Parents.
After considering all the evidence, I find that the Parent made efforts to locate a SETSS provider as per her affidavit. She contacted at least 7 SETSS providers who were unavailable. The Parent has provided an affidavit for services provided by for the 2017-18 school year for 40 weeks at the rate of $130.00 per hour.
Parent has agreed to accept the sum of $100.00 per hour if there was an award for payment by the DOE.
I order that:
1. The DOE shall pay to the order of Ge for SETSS for the 2017-18 school year, for 400 hours of services at the rate of $100.00 per hour for a total of $40,000.00.
Dated: June 1, 2018
Gary D. Peters
Impartial Hearing Officer
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.