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FINDINGS OF FACT & DECISION
Case Number: 178814
Student’s Name:
Date of Birth:
District Number:
Hearing Requested by: Parent
Dates of Hearing: August 20, 2019
November 16, 2019
Actual Record Closed Date: 12/20/19
Hearing Officer: Gary D. Peters, Esq
November 6, 2019
Advocate Parent
DOE Designee Dept. of Education
PARENT’S EVIDENCE
A Demand for Due Process 10/19/18 5 pages
B Retainer Agreement 10/8/18 2 pages
C IESP 10/25/17 23 pages
D Provider Certificate undated 1 page
E Affidavit of Services 2017/2018 1 page
INTRODUCTION
On the above date, 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 #178814. The hearing was conducted at the Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. The Department of Education, hereinafter referred to as the “DOE” was represented by their Designees and and the parent was represented by their Advocate
BACKGROUND
(the “Parent”), on behalf of her daughter, filed a due process complaint on 10/19/18. The parents allege that The New York City Department of Education (“DOE”) failed to provide with a Free Appropriate Public Education (“FAPE”) for the 2017-2018 school years. is a girl and was classified as a student with a Learning Disability
PARENT’S POSITION
Parent’s Advocate asserted that the request for payment is justified, as there was no IEP developed for the 2018/2019 school year and that the last IESP that was developed was on
10/15/17.
is seeking an order to fund the student's SETSS services, five periods a week of SETSS in , individually.
Additionally, to the extent that the pendency was not implemented before October 19th,
2018, that the DOE should fund the child's program from the beginning of the school year, which would cover the entire 2018-2019 school year, as the student should be entitled to under the IDEA based upon their IESP
DEPARTMENT’S CASE
The DOE failed to provide evidence and rested. The DOE’s designee stated that the DOE is not disputing the services, however is objecting to the enhanced rate.
PARENT’S CASE
Parent’s Advocate offered the above evidence into the record and is seeking payment for the services as stated above. M ore particularly, the DOE failed to have an IEPSP in place for the 2017-2018 school year; however, an IESP was developed on 10/15/17 which provided for five periods of SETSS per week with counseling, two times per week for 30 minutes individually.
The Parent by their Advocate is seeking summary judgment requesting a finding of fact and decision for five periods of SETSS per week at a reduced enhanced rate of $125.00 per hour with counseling, two times per week for 30 minutes individually.
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 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 [IEP]
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)(ii)), 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 SETSS services and failed to produce an IEP for the school year in dispute until 10/25/17, which provided for five periods of SETSS per week with counseling, two times per week for 30 minutes individually. 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 W L 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. Id. 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 order that DOE:
1. fund the student's SETSS services, five periods a week of SETSS in , individually at a rate not to exceed $125.00 per hour.
2. provide RSA’s for counseling services, 2 x30, individually
That the DOE should fund the child's program from the beginning of the school year, which would cover the entire 2017-2018 school year, as the student should be entitled to the above services. Payment should be made within 45 days of the date of receipt of an invoice in a form acceptable to the DOE.
Dated: January 5, 2020
______________________________
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.