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FINDINGS OF FACT & DECISION
Case Number: 179055
Student’s Name:
District Number:
Hearing Requested by: Parent
Dates of Hearing: July 1, 2019
August 15, 2019
October 30, 2019
January 13, 2020
March 12, 2020
June 15, 2020
Jul 14, 2020
Actual Record Closed Date: December 10, 2020
Hearing Officer: Gary D. Peters, Esq
HEARINGS
July 1, 2019
Advocate Parent
DOE Designee Dept. of Education
August 15, 2019
Advocate Parent
NONE Dept. of Education
October 30, 2019
Advocate Parent
DOE Designee Dept. of Education
January 13, 2020
Advocate Parent
DOE Designee Dept. of Educatio
March 12, 2020
Advocate Parent
DOE Designee Dept. of Education
June 15, 2020
Advocate Parent
DOE Designee Dept. of Education
Jul 14, 2020
Advocate Parent
Mother Parent
Educational Supervisor Parent
DOE Designee Dept. of Education
DOE Designee Dept. of Education
PARENT’S EVIDENCE
ITEM DATE DESCRIPTION NUMBER
NUMBER OF PAGES
A 10/29/18 Impartial Hearing Request 5
B 03/11/18
C 10/18/18 Parent Retainer 2
D 06/28/16 Individualized Education Services Program 8
E Provider’s Certification 2
F 05/27/20 Affidavit of Services 1
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 179055. 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 Designee and the parent was represented by their Advocate .
PARENT’S POSITION:
The student, hereinafter referred to as is a student who is classified as a student with disability having a speech/language impairment. His classification and entitlement to receive Special Education support and services is not in dispute. The parent maintains that in the 2018/19 school year was attending a private and was recommended for 5 periods of SETSS to be provided in and also for a hearing education services. The parents maintain that the DOE made no effort to implement his IEP. More particularly, they failed to provide the parent with any information concerning SETSS and for hearing education services. The Advocate maintained that the DOE has never provided the services and such deprivation was a detriment to his education.
The parent asserts that she was not in agreement with the following recommendations at the last agreed upon IESP developed on 6/28/16: 5 periods of SETSS services, Speech/Language Therapy, 3 x 30 1 30 and Hearing Education services 2 x 30 x 1. The parent did not understand that SETSS services were not 4 or 5 hours as opposed to 5 periods. The parent attempted to locate a SETSS teacher to provide services at the DOE rate and was unable to do so. The parent sought services from an educational agency called “ ”. Accordingly, the parent is requesting payment for SETSS for the 2018-2019 school year at an enhanced rate not to exceed $150.00 per hour.
THE PARENT’S CASE:
stated she is a Licensed Special Education Teacher with a Master’s Degree and experience in multiple areas of Special Education for 13 years. She worked with children from regular mainstream with learning disabilities and hearing loss to low functioning children in a Special Education classroom with significant cognitive and learning impairments. She testified that she has provided applied behavior analysis (ABA) services for autistic children and Orton- Gillingham programs for mainstreamed children with learning disabilities.
The witness stated that she is an Educational Supervisor for “ ”, an agency that provides educational support for children that are struggling in school and in need of various supports that are required educationally.
stated that she initially has a meeting a child and matches them to an appropriate provider that will be able to supplement their needs and provide services based upon their individual difficulties. She supervises sessions, communicates with the providers to make sure that IEP goals are being met. Additionally, she oversees the process to verify that lessons are presented with the most appropriate tools and significant planning to increase the student’s ability to reach and maintain his or her goals. . Throughout the year, she meets with the students to monitor their progress, is available for questions and planning for the provider. She oversees the provider to assure that he/she doing the best and appropriate job.
stated that was the provider that worked with ; she is licensed in general and special education. She is familiar with and met her in the beginning of the 2018- 2019 school year. was diagnosed with a hearing loss and wears a hearing aid. She testified that his “hearing difficulties” create challenges for him in the general classroom environment and interferes with the way he processes information.
In reading, made significant progress during the school year; however, he continued to struggle and was below grade level. She stated that he had a hard time understanding and comprehending what he is reading, particularly if there are long sentences. He also has difficulty in visualizing settings in a story and comprehending theoretical information. stated that fluency is improving and that he is able to read short sentences; however, due to focusing difficulties aside from his hearing loss that he continues to struggle. The witness stated that has mastered skills such as taking apart a story and dissecting it on order to understand it better; however, he still is very dependent upon his provider to provide support.
The witness stated that reading difficulties impact his mathematical problem solving.
Although his math skills are strong in addition, subtraction and multiplication, he has a difficult time with fractions and decimals. attributed this partially due to his hearing loss and with difficulties in abstract thinking. Additionally, in math when he is required to utilize abstract thinking with visuals and charts, he has an extremely difficult time.
Regarding writing skills, spelling is difficult for as he has a hard time visualizing language.
Sound and symbolic relationships are a struggle for him, especially with sounds that are inconsistent like blends; he is well below age level in this area. penmanship has improved but it still is below the appropriate level. The witness stated that is easily frustrated, becomes anxious and has a difficult time with language and communicating. reiterated that she believes that his language delays are consistent with his hearing loss. communication delays requires a slower pace in order to master goals.
testified that if had hearing education services that he would learn how to communicate in a noisy environment. Lack of SETSS impacted his ability in all domains. The witness stated that she has observed with his provider and in her opinion, he has demonstrated progress with SETSS services for the 2018-19 school year. He has made progress in reading, his penmanship has improved and he has learned many skills. However “he has a long way to go”.
stated that she is familiar with an oral transliterator and has had significant experience with children afflicted with hearing loss. The oral transliterator is a device, which interprets all verbalization”. In a classroom, it could aid in taking notes; in the playground, it could assist in conversations which is missing. The oral transliterator is a mandated service that by law should be provided to a child with hearing loss and deafness. She also noted that the device would reduce much stress for a child in terms of keeping track of things around them and assists in reducing anxiety and increases understanding.
stated that an informal and professional evaluation is administered at the beginning of the year in order to ascertain how a child is progressing towards the IEP goals. At the end of the year, a progress report outlines and provides data on progress. The next witness to testify is the parent, hereinafter referred to as She had recollection of an IEP meeting for the 2018-19 school year and recalled that she requested an oral transliterator. She was told that she needed hearing test results to be forwarded to the DOE. She would call providing the results and stated that her son could not receive hearing education services as mandated on his last 2016 IESP.
The parent stated that the DOE failed to provide SETSS services. She contacted an agency
“ ” and was able to secure a SETSS provider for the 2018-19 school year. She agreed that her son made progress. The parent further stated that her did not receive an oral transliterator and that was detrimental to her son’s learning. Upon cross-examination of the witness, the parent stated that she provided the hearing test results to the DOE via e-mail. She received a SETSS authorization at the beginning of the school year and made numerous attempts to locate a provider.
DOE’S POSITION
Concededly, the child was mandated for SETSS and hearing education services as well as speech and language services. The DOE is disputing the advanced rate, objecting to the charge that the agency is requesting.
DOE’S POSITION
The DOE rested and failed to provide evidence.
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 RT 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. 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. 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.
As State law mandates that an IESP be developed “in the same manner” as an IEP (Educ.
Law 3602-c[2][b][1]). State guidance explains that providing services on an “equitable basis” means that “special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district.”
The CSE failed to create a procedurally and substantively valid IESP for the 2018- 2019 school year; failed to recognize this student’s need for 1:1 SETSS and failed to provide hearing services. The parent attempted to locate a SETSS teacher to provide services at the DOE rate and was unable to do so.
Given the complexity and severity of learning needs coupled with the recommendations of his teachers and parents the DOE failed to offer him individual SETSS, hearing services and a transliterator.
While the statutory scheme of Education Law section 3602-c places the responsibility of selecting and placing the student in a nonpublic school on the parent, the implementation of the services called for by a student's IESP falls on the district insofar as "[b]oards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). (See Application of a Student with a Disability…SRO Decision # 17-034 )
In summary, these multiple failures on the part of the DOE is a denial of equitable services that is entitled to pursuant to NYS Education Law Section 3206-c, and a denial to his parents of an opportunity for meaningful participation in the development of an educational program for their child.
Due to the DOE’s failures as stated herein, I agree with the Parent that pendency placement is the last agreed upon IESP which mandates 5 periods of SETSS ( ). As a result of the district’s failure to adhere to Federal Law and New York State Regulations, by not conducting evaluations, holding a review meeting, creating an IEP and implementing the last agreed IESP, I find that the parents are awarded the equitable relief of: directly funding of 5 periods of individual SETSS ( ) through the SETSS Agency, “ ” at an enhanced rate retroactive to the first day of the 2018-2019 school year.
I will not repeat the details of evidence which support and basis for my findings of fact and my decision is grounded in the testimony as it appears above and the reasoning as set forth above; with respect to the issues presented at the hearing,
After considering all the evidence, I order that DOE:
1. Pay for the student's SETSS services for the 2018-2019 school year, five periods a week in , individually at an enhanced rate not to exceed $150.00 hour to the Agency. The DOE shall pay for the services as stated herein within 30 days of receipt of an invoice in a form acceptable to the DOE.
Dated: December 16, 2020
Gary D. Peters, Esq.
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.