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FINDINGS OF FACT AND DECISION
Case #: 184234
Student’s Name:
Hearing Requested by: Parent
Date of Hearing: 8/1/19, 9/12/19, 12/5/19, 2/24/20, 5/11/20
Actual Record Close Date: 5/26/20
Hearing Officer: Jeanne M. Keefe, Esq. Finding of Fact and Decision #184234
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE HEARING
8/1/19 hearing date:
Esq. — Student
District Representative (via phone) — District
9/12/19 hearing date: — District
Esq. (via phone) — Student
District Representative — District
12/5/19 hearing date: — District
Esq. — Student
District Representative (via phone) — District
2/24/20 hearing date: — District
Esq. — Student
District Representative — District
5/11/20 hearing date: — District
Esq. (via phone) — Student
Parent (via phone) — Student
SEIT (via phone) — Student
District Representative — District
Finding of Fact and Decision #184234 — District
INTRODUCTION
An impartial hearing request was filed on behalf of (“ or the student”) by her parent and , Esq. pursuant to the Individuals with Disabilities Education Act of
2004. On 7/1/19, the Impartial Hearing Office located at 131 Livingston Street, Brooklyn, New York received the request. On 7/5/19, I was appointed as the Impartial Hearing Officer to hear the matter.
BACKGROUND
At the request of the Parent a pendency hearing was scheduled for 8/1/19. On 8/1/19 the parties appeared. The Parent made a motion for pendency as follows:
Special Education Itinerant Teacher (“SEIT”), 25 hours per week Speech-Language Therapy, 4x30, 1:1 Occupational Therapy, 3x30, 1:1
Physical Therapy, 3x30 1:1
Speech- Language Therapy, 3x45 1:1, English, outside (dual program)
Occupational Therapy 3x45, 1:1, English, outside (dual program)
Physical Therapy 2x60 1:1, English, outside (dual program)
Counseling, 3x60 1:1, English outside (dual Program)
The District had no objection to pendency and a pendency order was issued on 9/5/19. The parties advised that the case has historically settled and requested that the case be adjourned to 9/12/19 for a settlement status hearing. On 9/12/19 the parties appeared and advised that the case had not yet been approved for settlement but based on past settlements they requested an adjournment to
12/5/19 for a settlement status hearing. On 12/5/19 the parties advised that the case was still under investigation for settlement. The case was adjourned to 2/24/20 for the District to present its case with the understanding that if the District were not ready to proceed, they would be held in default.
On 2/24/20 the parties appeared, the District was not ready to proceed and was held in default. (t. Finding of Fact and Decision #184234
31) The case was adjourned to 5/11/20 for the Parent to present their case. On 5/11/20 the Parent presented two witnesses and evidence to support their case. At the start of the hearing, the parties stipulated to the appropriateness of the Speech Language Therapy, Physical Therapy, Occupational Therapy and Counseling services. The Parent advised that the rate was not an issue. The parties agreed that the sole issue for the hearing was the appropriateness of the Special Education Itinerant Teacher (SEIT) services. (t. 47)
FINDINGS OF FACT AND DECISION
The student is and is diagnosed with . attends and is in a mainstream classroom. struggles in all academic areas but does not have significant delays on a social/emotional level. has been receiving 25 hours of SEIT services since 2011 based on a CPSE IEP.
testified that she has been the 1:1 SEIT for for approximately six years and is the 1:1 SEIT teacher for for the 2019-2020 school year. is in a general education classroom and needs 1:1 SEIT services to gain skills. testified that most of the work she does with is skill-based teaching. is on a lower level then the general education students. The
SEIT reinforces what the classroom teacher is teaching and reteaches a lot of the information so that can understand. The SEIT covers math, reading, writing and English.
testified that would not be able to be in the general education classroom without a 1:1 teacher Finding of Fact and Decision #184234 because she cannot gain knowledge or skills without the reinforcement. On a social/emotional level is described as well-integrated in her class and that her peers are appropriate role models for her.
testified that has made progress during the 2019-2020 school year. In fact, has continued to receive her 1:1 SEIT services during the shutdown of the schools due to the COVID-19 crisis. testified that she has been using video conferencing to work with
Both she, and the parents, were pleasantly surprised to see take responsibility for her schedule and keeping organized and that she has maintained skills that she has learned throughout the school year. testified that has made progress in all academic skills, specifically math and reading. While her handwriting is weak, is making slow improvement.
The Parent testified and describes as intelligent, hardworking, committed, happy and friendly.
has been receiving services since she was a baby and has always been in a regular education classroom with support. The Parent testified that they believed that would do better with general education peers because she would be able to model what she sees. The Parent testified that has made friends with her general education peers, she does projects with them and they include her as part of the class. The Parent testified that needs the support of the 1:1 SEIT in the general education class to make progress and that she has made progress for the 2019-2020
school year.
Finding of Fact and Decision #184234
CONCLUSIONS OF LAW
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. §1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v.
Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir.
2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. §1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. §1414 (d); 34 C.F.R. 300.320). As noted by the State Review Officer (“SRO”) in Application of a Student with A Disability, Appeal No. 11-068 the burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition for a unilateral placement has the burden of proof regarding the appropriateness of such placement. (N.Y. Education Law § 4404 (1) (c); see MPG v. New
York City Dep’t of Educ., 2010WL3398256 at *7 (SDNY Aug. 27, 2010). In the case at hand the Parent is seeking the continuation of 25 hours of 1:1 SEIT services that had received under the last agreed upon CPSE IEP. (Ex. B)
I find that the District failed to provide with FAPE for the 2019-2020 school year. The District failed to present any witnesses or evidence to establish that FAPE was provided to for the 2019-2020 school year and was held in default. The District stated that the only issue was the appropriateness of providing 1:1 SEIT services but did not challenge or rebut the testimony and evidence provided by the Parent and their witnesses.
I find that 25 hours of 1:1 SEIT services are appropriate based on the credible testimony of and the Parent.
Finding of Fact and Decision #184234
I credit and the Parents testimony that is making progress during the 2019-2020 school year in her academic subjects, is progressing on a social/emotional level and benefits from being in a general education classroom with the 1:1 support of the SEIT.
ORDER
Therefore, it is hereby ordered that that the New York City Department of Education provide Special Education Itinerant Teacher (“SEIT”) services, 25 hours per week, to for the 2019- 2020 school year. [1]
Dated: May 29, 2020
___________________________________
Jeanne M. Keefe
Impartial Hearing Officer
Finding of Fact and Decision #184234
DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 1, 2019
A. Hearing Request, dated 7/1/19, 5 pages Parent
B. CPSE IEP, dated 8/4/11, 16 pages Parent
C. Related Service Agreement: Speech, dated Parent
6/29/12, 3 pages
D. Related Service Agreement: Physical Parent
Therapy, dated 9/10/12, 3 pages
E. Related Service Agreement: Counseling, Parent dated 7/2/13, 3 pages
F. Related Service Agreement: Occupational Parent
Therapy, dated 8/28/13, 2 pages
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 11, 2020
G. SEIT rate letter, dated 7/1/19, 1 page Parent
H.. Progress Report and goals, dated 5/2/20, 13 Parent pages
POST HEARING SUBMISSION BY THE HEARING OFFICER
I. Statement of Adjournments and Extensions, IHO
undated, 1 page
Footnotes
[1] The parties were advised to be sure to address all issues, and relief requested, set forth in the due process complaint or they would be deemed abandoned. (t.42)