New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 180030

Student’s Name:

Date of Birth:

District Number:

Date of Hearing: September 10, 2019

Record Close Date: October 12, 2019

Hearing Officer: Gary D. Peters, Esq.

Names and Titles of Persons Who Appeared:

July 31, 2019

Attorney Parent

DOE Designee Dept. of Education

September 10, 2019

Attorney Parent

DOE Designee Dept. of Education

Mother Parent

Educational Supervisor, Dept. of Education

Parent’s Evidence:

Exhibit Subject Date Pages

A Due Process Complaint 12/13/18

APDeW

B IESP 11/23/13 C Progress report 6/13/19 D Rate Affidavit 2/4/19 E Teacher’s Certificate Undated

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 #180030. 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 Attorney

BACKGROUND

(the “Parent’’), on behalf of her son,“ _”; filed a due process complaint on 12/3/18. The parents allege that The New York City Department of Education (“DOE”) failed to provide with a Free Appropriate Public Education (““FAPE”) for the 2018-2019 school years. is a year-old boy and was classified as a student with a Learning Disability. The last agreed upon IESP dated 11/22/13 in order to address the child’s needs recommended a host of supports, including SETSS five hours per week, and related services.; Parent is seeking payment for the SETSS and RSA’s for related services

PARENT’S POSITION

The Parent maintained that the DOE, has failed to properly discharge its duties in the development and implementation of an Individualized Education Service Program, hereinafter referred to as IESP for the child( _). More particularly, the parent is challenging the DOE’s position for the 2018/2019 school year.

is a student known to the Committee on Special Education, hereinafter referred to as CSE, as a result of his learning delays. He meets the criteria for classification as a student with learning disability. Additionally, the last IESP was created for — and dated 11/22/13 wherein recommendations were made for 5 periods of SETSS in in a group and counseling 2 times per week. Notably, on page | of the IESP, it was stated that the projected date of annual review should be held on1 1/21/14 and that it did not occur on that date nor has it occurred subsequent to that date.

The IESP referred hereto indicates that ’s cognitive functioning ranges from borderline to low average and that his academic functioning was below age and grade expectancy. It does not appear that there was objective testing done for the student.

For the 2018/2019 school year, the DOE neglected to hold a review meeting and failed to develop and/or implement an IESP. Parent’s counsel maintained that if the CSE conducted the requisite evaluations and held a meeting in 2018/2019 school year, they would have learned that requires individual SETSS in order to confer a meaningful benefit to him and address his learning disability. Lastly, due to the failure of the CSE to provide the appropriate support, the parent was left with no alternative and learned of the “ ” agency in order to secure a set provider 5 times per week. Counsel maintained as the nature of the group was never defined and therefore, the child is entitled to individualized instruction for 5 periods per week and also seeks the issuance of related service authorizations (RSA) for the recommended services.

DEPARTMENT?’S POSITION

The DOE failed to provide witnesses, testimony or documentary evidence to support a position that it offered a free and appropriate public education (FAPE) to this child.

PARENT’S CASE

Ms. , affirmed that she works as a SETSS Supervisor at “ and has been so employed for the past 5 years. Her role is to insure that children make progress based upon their individual needs.

“ ” provides direct service and support to the family.

The witness stated that she knows and that he received services through for 5 hours per week of SETSS in at the school. His provider was Ms. who is a Licensed Special Education Teacher from first grade through high school. She provides bilingual in instruction. The witness was directed to Exhibit E and stated that it was a provider's Bilingual Education Extension from the State of New York Education Department dated 1/17/15 and that the period of validity was "permanent". Ms. also had a Public School Teacher's Certificate effective 9/1/03 for services in the Public Schools.

Ms. testified that the agency offers support to the providers, reviews goals, instructions and checks progress. She directly supervised Ms. and met with her every 2-3 weeks either at the school or in the office and reviewed the child’s progress. . ” provides materials and continuing educational support. The witness stated that she had observed Ms. in the classroom. They collaborate with the school, special education teacher and other school staff.

The witness described as analmost — year old boy who has been treated as a child with a disability, ADHD; he is sometimes impulsive, has difficulty with comprehension, coding, and is not on grade level. The goals for him were independence and to assist him to set up his day. His SETSSprovider works with him on figuring out his schedule. The provider utilizes Orten Gillingham, which is a multi-sensory approach to learning. requires behavioral support wherein the following techniques are utilized: modeling, prompting, social awareness, and social thinking training. The witness stated that in her opinion, has been successful in this modality and that assists the provider to implement the above.

The witness was directed to Exhibit C, Progress Report dated 6/13/19. She stated that the report was accurate and was created with the general education teacher, parents, child and SETSS provider. _ ’s oral skills were still delayed and he had difficulty in decoding and literacy. She stated that he was at least 4-5 grades behind his grade level. The witness stated that the services had a positive impact on _ ’s ability to learn. Services were provided from the first week of school in September through June 30" of 2019.

The next witness to testify was the parent hereinafter referred toas . She stated that her son was year old and that his last IESP was dated November, 2013 and there has not been one since. She affirmed that the DOE failed to contact her “at all” and that she utilized wherein they helped secure a provider. spoke to Ms. on the phone; she stated that she provided SETTS services for her son at the from the beginning of the school year until the end of the school year; she didn’t pay the provider for the services provided.

The Parent testified that she attempted to locate a SETSS Provider prior to securing Ms. . The witness stated that the DOE failed to provide her with any information concerning a list of referrals or with the names of providers to call. Additionally, that in the event that she is not successful at the instant hearing, that she is financially responsible to pay for the services rendered.

DEPARTMENT?’S CASE

The DOE failed to provide its case, failed to present witnesses and or documentary 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 ‘['Jlikely 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 witha FAPE. First and foremost, the DOE failed to provide the child with SETSS services, a neuro-psychological evaluation and to provide RSA’s for the related services. The DOE presented no witnesses and did not rebut any of the Parent’s evidence.

The Parent’s counsel in his closing statement opined that the DOE has not met their burden of treating IESPs similar to IEPs for the student; although he was placed in a nonpublic school he was entitled to annual reviews for the IESP and equitable services. Those services should have been furnished the first day of school by the DOE.

Most importantly, the DOE did not hold an annual review since November of 2013. The Parent also was required to go and find her own services for her son, because the DOE did not provide any information to her.

Mr. that the program the student is receiving from “ ” included Orton-Gillingham and a Social Thinking curriculum, both peer-reviewed methodologies. The student has made progress. Lastly, the rate of “ ” is substantiated and it's reasonable.

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 order that:

1. The DOE pay for SETSS 5 x 60 x 1 for the 2018-19 school year within 30 days from receipt of an invoice in a form acceptable to the DOE.

Dated: October 12, 2019

Gory

O. Paters, Eig

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.