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FINDINGS OF FACT & DECISION
Case Number: 180104
Student’s Name:
Date of Birth:
District Number:
Hearing Requested by: Parent
Dates of Hearing: February 12, 2019
April 25, 2019
June , 2019
August 8, 2019
October 7, 2019
January 7, 2020
Actual Record Closed Date: January 15, 2020
Hearing Officer: Gary D. Peters, Esq
February 12, 2019
Advocate Parent
DOE Designee Dept. of Education
April 25, 2019
Advocate Parent
DOE Designee Dept. of Education
June, 2019
Advocate Parent
DOE Designee Dept. of Education
August 8, 2019
Advocate Parent
DOE Designee Dept. of Education
October 7, 2019
Advocate Parent
DOE Designee Dept. of Education
January 7, 2020
Advocate Parent
M other Parent
DOE Designee Dept. of Education
PARENT’S EVIDENCE
A. Demand for Due Process 2/4/18 3 pages
B. IESP 3/26/18 13 pages
C. Affidavit 6/19/19 2 pages
D. List of Providers various dates 1 page
IHO’S EVIDENCE
I. Pendency Order 2/13/19 3 page
INTRODUCTION
On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, U.S.C. Section 1415(f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case #180104. 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,
BACKGROUND
(the “Parent”), on behalf of her son, “ ”; filed a due process complaint on 2/4/18. 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 boy and was classified as a student with a Speech/language Impairment.
PARENT’S POSITION
Parent’s Advocate asserted that the request for payment is justified, as the last IESP that was developed for recommended amongst other services was SETSS services, five periods a week in.
M s. is seeking an order to pay for the student's SETSS services from the beginning of the school year up to the date of my Pendency Order. That the DOE should fund the child's required SETSS 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.
PARENT’S CASE
The Parent was duly sworn and affirmed that her testimony would be truthful. She testified that she provided a hand written list, which was a one-page document called the “provider contact list” to her Advocate. That the list had the names of SETSS providers, their telephone numbers, the dates that she contacted them and the reason that they would not accept the job.
She stated that there were approximately providers on the list and that she contacted them; however, they declined the job stating that “they were too busy, had no time, and or that the pay was too little”.
She also stated that M s. was a SETSS prover who worked with her son and implemented the mandated services for the 2018-2019 school year. She worked with her son and believed that he made progress. Additionally, that she has not paid for any of the services for a SETSS provider for the 2018-2019 school year. Lastly, that nobody from the DOE/CSE offered to help her locate a SETSS provider.
Parent’s Advocate offered the above evidence into the record and is seeking payment for the services as stated above.
Department’S CASE
The DOE failed to provide evidence and rested.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This hearing was requested pursuant to the Individuals with Disabilities Education Act (the “IDEA”) (see 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 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 ). 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 or assist the Parent to locate a Provider. The Parent has provided proof that services was provided by M s. for the entire 2018-2019 school year. Her projected rate of payment would be from September 4, 2018 through June 30, 2019 at the rate of $110.00 for 210 hours for a total of $23,100.00. 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,
1. I order that DOE pay for the student's SETSS services, five periods a week of SETSS in for the 2018-2019 school year. Additionally, to the extent that the pendency was not implemented before the date of the filing of the due process complaint, that the DOE should fund the child's services 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.
2. That the DOE pay for the services within 30 days of receipt of an invoice in a form satisfactory to it.
Dated: January 21, 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.