NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT & DECISION
Case Number: 184853
Student’s Name:
Date of Birth:
District Number:
Hearing Requested by: Parent
Dates of Hearing: August 14, 2019
October 30, 2019
January 20, 2020
March 12, 2020
May 7, 2020
June 29, 2020
Actual Record Closed Date: November 6, 2020
Hearing Officer: Gary D. Peters, Esq
August 14, 2019
Attorney Parent
DOE Designee Dept. of Education
January 13, 2020
Attorney Parent
DOE Designee Dept. of Education
March 12, 2020
Attorney Parent
DOE Designee Dept. of Education
May 7, 2020
Attorney Parent
DOE Designee Dept. of Education
Special Education Teacher Dep’t. of Education
June 29, 2020
Attorney Parent
Mother Parent
DOE Designee Dept. of Education
PARENT’S EVIDENCE
A. Letter Date Name of Document # of Pages Due Process Complaint w/ Email Confirmation 07/01/19 7 pages
B. Amended Findings Of Fact And Decision of Impartial Hearing Officer (“IHO”’) 01/02/19 12 pages
C. Pendency Order of Impartial Hearing Officer Gary D. Peters 08/18/19 2 pages
D. IESP 06/13/19 10 pages
E. TDN w/ Email Confirmation 06/14/19 3 pages
F. School Progress Report 05/27/19 3 pages
G. Progress Report April 2020 04/30/20 3 pages
H. Letter 04/10/18 Letter 04/08/18 1 page
J. Letter to CSE on Behalf of Parent (w/ fax confirmation)[3] 04/20/18 3 pages
K. Letter 05/28/18 2 pages
L. Psycho-educational Evaluation 05/30/18 7 pages
M. Invoices Various 11 pages
DOE’S EVIDENCE
1. IESP 6/13/19 12 pages DOE
2. Psychological Evaluation Report 5/30/18 7 pages DOE
3. TASI9 Due Process Complaint 7 pages DOE
BACKGROUND
The student, hereinafter referred to as iscurrentlyan _-year-old girl with a learning disability. She has receptive and expressive language delays, struggles with: reading word problems, following directions, and understanding new concepts. She also suffers from seizures and has a severe nut allergy. ’s attention and concentration levels are weak; her reading, writing, and math skills are delayed and she presents with cognitive regression. Parent asserts that requires a significant amount of weekly Special Education Teacher Support Services ( “SETSS”) in addition to her related services and paraprofessional health services in order to enable her to achieve meaningful educational progress.
DEPARTMENT?’S POSITION:
Ms. stated that the last IESP recommended 10 periods of SETSS which was the appropriate level of services to address her needs. The DOE also asserts that the enhanced rate requested by the parents to deliver the services for their daughter is not reasonable. THE DEPARTMENT?’S CASE:
, a Special Education Teacher on behalf of the DOE, stated that she is a New York State Licensed Special Education Teacher and also certified in administration. She recalled attending an IESP meeting on June 13, 2019; Ms. the School Psychologist was present as was the parent who participated by telephone.
The witness recalled that the parent requested 15 periods of SETSS and related services. Her recollection was at the CPSE recommended 10 periods of SETSS with related services.
The witness was directed to Exhibit 1, Page 8 and stated that the CSE team utilized a psycho educational evaluation from May, 2018 to describe __’s then present level of performance and considered teacher’s reports. Goals were developed based upon her functioning level.
Ms. testified that 10 periods of SETSS, related services and a paraprofessional were necessary and provided for on the IESP. It was her opinion that the student required an IEP with recommendations for an ICT class which would have met her needs “even better”.
Upon cross-examination, the witness stated that her certification was in Special Education for grades Kindergarten through Sixth grade and that she has a Master’s degree in Special Education and Administration. That during her 10 years of teaching, she taught students with intellectual disabilities, learning disabilities and speech impairments in a 12:1 setting. She last taught 15 years ago; however, she visits classrooms to observe.
The witness did not work directly with —; however, she reviewed the child’s file prior to the June, 2019 IESP Review. She was unaware and/or did not recall if there was a 2018/2019 finding of fact and decision in favor of the child.
Upon further questioning of the witness, she stated that the IESP that was used in the May, 2018 review included psychological and teacher reports; She didn’t recall the names of the child’s SETSS providers and/or the dates of the teacher reports that she reviewed at the IESP meeting. The witness stated that goals were created both before and after the meeting. She did not have a recollection of °s SETTS provider expressing her opinion as to what she required.
Ms. testified that she was unaware if 10 hours per week of SETSS was the highest amount of service that was allowed to recommended; however, “We feel that if a child needs more than 10 periods of SETSS, hed/she really belongs in a Special Education class”. She stated that if the CSE believed it was appropriate for the student to receive 15 hours per week of SETSS and they can the implement. Additionally, if she believed that 15 hours was appropriate, there would be discussions with a School Psychologist in order to consider a Special Education alternative. The witness did not have recollection if the CSE recommended 12 month program. Generally, it is not recommended for students in general education and that a child needs to be significantly delayed to be in a 12 month program.
PARENT’S POSITION:
The parent maintains that her daughter requires a significant amount of weekly Special Education Teachers and Support Services (SETSS) in addition to related service and paraprofessional services in order to enable her to make meaningful educational progress. In light of the above, the parent maintained that —_ requires repetition and review, encouragement and praise, re-focusing, modeling, instruction and directions broken down into smaller units with manageable steps and a multi-sensory approach to learning. Specifically, Parent seeks an award to increase from 15 hours per week to 20 hours per week of SETSS and related services in order to make progress and avoid regression.
The parent is seeking direct funding for 20 hours of 1:1 SETSS at an enhanced rate of $150.00 per hour and reimbursement for any amounts paid for SETSS and/or related services for 2019/2020 school year.
THE PARENT'S CASE:
,aSETSS Provider, testified after being duly sworn that she has a Master’s Degree in General and Special Education from “Kindergarten through Eighth Grade” and that her certification through high school is pending. She has a Teaching License and a certification for Child Abuse/Drug Abuse and Violence. She is certified to teach reading with Orton-Gillingham, Lindamood Bell and believes that these methodologies are appropriate to teach children reading challenges.
Ms. stated that she currently works as a SETSS provider for different children. She provides individual instruction to students with language based learning challenges and learning disabilities. She teaches reading instruction, language, grammar, comprehension, executive functioning and life/social skills.
The witness testified that she knew — when she was a student at and worked with her for 4-5 years. The Parent decided to remove her from as she was not receiving an appropriate education. She wanted to have her placed in a mainstream school in order to become accustomed to socialization and felt that her daughter was capable of learning “the way other children do”.
She placed her daughter at where she is currently attending with support and SETSS hours. After being contacted by the Parent, Ms. administered updted informal testing in order to determine her reading, comprehension and math levels and writing skills. She noted that — was far behind and had difficulty with comprehension. She began to instruct her with Orton-Gillingham which is a multi-sensory method/approach and a hands-on program to learn how to put sounds together and to assist in learning the alphabet. Eventually, the goal is raise her levels so that she may learn any subjects including social studies, science, and grammar.
The witness believed that began attending her present school in third grade, is currently in fourth grade and going into fifth grade. In math _ was at grade level; there was teacher support and tutors who were inaclassroom. — was able to do word problems with help.
At the start of the present school year, Ms. stated ’s reading level was at A second grade level. However, she worked with the — remotely and she has progressed “a little bit in reading”’. Additionally, even though she didn’t go up a grade level, she was able to maintain what she had learned. The witness utilized visualization and verbalization techniques to assist with reading. She described the child’s processing rate as slow; however, insisted that she was capable of learning; albeit, not at the same pace as her peers. ’s writing level is estimated to be at the beginning of second grade. She is currently working on paragraph writing and receives systematic/repetitive instruction for writing.
The witness summarized _ ’s strengths in her ability to express how she feels; although she doesn’t express it in words very well, she gets along with her peers and can ask questions if she needs help. She described _as kind, (sometimes to a fault). sometimes has a very hard time recalling what she has learned so that instruction is always “bite-sized”. She has made significant progress in social skills. She still has anxiety about learning; behavior charts, behavior modification and a rewards system are utilized for support. does not feel good about herself and knows that she is in a different level than her friends but she still perseveres.
Ms. reiterated that she works with the child 15 hours per week in school and that —_also works at night with a tutor. _is taught by two teachers in a class with 24-25 students; there is also a Health Paraprofessional in the room.
Upon further questioning of the witness, she stated that — recently turned 12 and is scheduled to be in sixth grade in the next school year. She recalled participating in the IESP meeting in June, 2019 and that recommendations for 10 hours of SETSS per week were made. She stated that both the student and parent believed that 10 hours of SETSS were not a sufficient amount of services; in pastsummers _had significant regression.
During the current school year, the witness stated that — benefitted with 15 hours per week of SETSS and made meaningful progress. She believed that 30 hours would be even more helpful. Although she made progress, she is still is not on the level of other students her age. She believed that _is capable of learning “a lot more” but that it is important for her to be on level before she goes up to sixth grade. The witness states that she provides extra hours each week; sometimes, more than 3 hours per day as __ required same in order to keep in the class. She indicated that she believed — has made “nice progress”; however, could make even more with additional services. Her reading, math and self-esteem has improved.
Ms. testified that is in fifth grade; however, she is age-appropriate for sixth grade. In order for her to catch up and be at the same grade level as her peers, she requires a lot more learning. During the summer months, Ms. stated that — should have at least 15 hours of SETSS per week and that she is available to provide same. Her hourly rates for services is $150.00 per hour; her services include preparation time, time with the student, calls to the student and parents, working with the principals and the Health Paraprofessional, and many other things. She believes her hourly rate is reasonable.
Upon cross-examination, Ms. stated that has anxiety during her time with mainstream teachers. She won’t always raise her hand; however, the assistants sometimes will notice, go over to her to help and prompt her to ask questions. She described _as getting along very well with her friends and her teachers except for when her anxiety “often kicks in”.
Ms. stated that in age appropriate group activity the child seemed more relaxed. However, with one on one instruction, it is more difficult for as she doesn’t move or work as fast as her friends and they will easily get frustrated with the slowness that | answers questions. Additionally, during the last school year — was stuttering and this year she is not. This is due to working on self-esteem, constant praise and reward. now feels that she is making progress which is “empowering”’.
On re-direct examination, the witness stated that she has not received payments from the parents for services provided during the current school year.
The next witness to testify was the parent; she stated that her daughter has “a processing language disorder; reading is difficult for her and she has a host of learning issues. She stated that her daughter is enrolled in “ ”. a mainstream school and that her daughter was __ years old when she began. She was age-appropriate for fifth grade; however, when she began in fourth grade she was not at the other children’s level in reading and writing.
In July/August of 2019, her daughter received SETSS services and believed that without it she would forget lessons that were taught her during the year. During the summer, her daughter was receiving approximately 15 hours per week of SETSS. was hired to provide Para services. She believed that she paid approximately $1,200.00 - $1,250.00. She borrowed money to pay for the Paraprofessional for services in the summer of 2019. The witness stated that she couldn’t fathom her daughter having to go to school without services during the summer and during the school year. During the school year, she had speech therapy three days a week and a tutor every night. was the tutor and a neighbor on her block. She kept in touch with Ms. and they worked hand in hand together. Ms. worked five days a week and was paid $65.00 per hour during the school year. She did not work during the summer.
The parent testified that she is seeking reimbursement for the SETSS Provider — and for the Paraprofessional that worked during the summer months. She agreed to provide proof of payment if an award is granted in her favor.
During the summer her daughter went to camp with approximately18 children and 2 counselors; she was there more for her seizures than for her nut allergy. She notified the DOE about her daughter’s allergy and that there was a Health Para for the entire year to monitor seizures, asthma and the nut allergy.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C. section 1400-1482) ensure that students with disabilities have available to them a FAPE; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. Of Education v. Rowley 458 S. CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356 371 92d Cir 2006). A FAPE includes special education and related services designed to meet the student’s unique need provided in conformity with a comprehensive written IEP (20 U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 ‘d’; 34 CFR Section 200-347; The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a][5][A]; CFR section 300.13 [a][2][i], 200.1.116 [a][2]; 8 NYCRR 200. [a][1]; see Walczak v. Fla Union Free School Dist. 142 F. 3d 119, 132 [2d cir. 1998].
This hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. §1404 et seg. (‘IDEA’). “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.’” MH. v. N.Y.C. Dep’t. of Educ., 685 F.3d 217m 223 (2d Cir. 2012) (quoting 20 U.S.C. §1400(d)(1)(A)-(B)). The IDEA mandates that students with disabilities musbe provided with a FAPE tailored to meet their unique needs and one that is reasonably calculated to “enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. — U.S. __, 137 S.Ct. 988,999 (2017); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982); SRO 17-007, p. 10. A focus on the particular child is at the core of the IDEA. Endrew F., 137 S. Ct. at 999. To meet the IDEA’s requirements, a school district’s program must provide special education and related services that is “‘specifically A denial of FAPE can be one that is substantive or results from violations of the procedural protections of the IDEA and its implementing regulations. Procedural violations result in the denial of FAPE “if they ‘impeded the child’s right to a [FAPE},’ ‘significantly impeded the parents’ opportunity to participate in the decision-making process,’ or ‘caused a deprivation of educational benefits.”” 20 U.S.C. §1415(f)(3)(C)ai); A.C. ex rel. MC. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); see also Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 (S.D.N.Y. 2005) (“Multiple procedural violations may cumulatively result in the denial of FAPE even if the violations considered individually do not.”’) In sum, Row/ey stands for a two-part entitlement: eligible families are entitled to an IEP that both (a) affords a placement that, substantively, is “reasonably calculated” to afford meaningful educational benefit to the child, and (b) is developed in procedural accordance with the requirements of federal law.
Furthermore, with regard to the sufficiency of the IEP, the Commissioner’s regulations require that: The IEP shall report the present levels of academic achievement and functional performance and indicate the individual needs of the student according to each of the four areas listed in section 200.1(ww)(3)(i) of this Part, including: a. how the student’s disability affects involvement and progress in the general education curriculum....§ N.Y.C.R.R. § 200.4(d)(2)(i); see also 34 C.F.R. § 300.20(a). In turn, section 200.1(ww)(3)(i) provides, in relevant part that the areas to be considered shall include:(a) academic achievement, functional performance and learning characteristics which shall mean the levels of knowledge and development in subject and skill areas, including activities of daily living, level of intellectual functioning, adaptive behavior, expected rate of progress in acquiring skills and information, and learning style;(b) social development which shall mean the degree and quality of the student’s relationships with peers and adults, feelings about self, and social adjustment to school and community environments;(c) physical development which shall mean the degree or quality of the student’s motor and sensory development, health, vitality, and physical skills or limitations which pertain to the learning process; and(d) management needs which shall mean the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction. Management needs shall be determined in accordance with the factors identified in each of the three areas described in clauses (a)-(c) of this subparagraph. b.
Ms. , District Representative participated in the June 2019 IESP meeting. She never met, evaluated, or conducted observations of prior to the June 2019 IESP meeting. Tr. 34-7. Ms. stated that the IEP team relied on the psychological evaluation conducted by as well as teacher reports; however, she did not recall which teacher reports were used or the date they were reviewed. Tr. 30-15. The Parent and Ms. stated that the CSE ignored their concerns when developing goals and recommendations. The witness recalled that the Parent had concerns; by failing to meaningfully consider the concerns of the Parent and provider regarding her educational needs, and by failing to adequately consult them regarding its recommendations for —_, the CSE unilaterally decided the student’s educational program, and denied the Parent and provider a meaningful opportunity to participate in the decision-making process. See 20 U.S.C. § 1414(d); Winkelmanv. Parma City Sch. Dist., 550 U.S. 516, 524 (2007). I agree with the Parent that the June 2019 TESP deprived of appropriate supports and services for the 2019-2020 school year. Additionally, Ms. conceded that she did not remember the meeting, did not recall if she was aware of the Findings Of Fact and Decision for a resulting from the legal proceedings for the 2018- 2019 school year, did not recall who completed the teacher reports, did not know the name of — ’*s SETSS provider, and did not recall whether everyone at the IESP meeting had a copy of the reports.
Ms. admitted that ten hours per week of SETSS is not the maximum amount that the CSE team is allowed to recommend, and that if the CSE deemed more than fifteen hours per week of SETSS was necessary that they could provide same. However, Ms. could not recall what reports or documents suggested less than twenty hours per week of SETSS as an appropriate amount, Ms. could not recall what she based her decision on. She did not know of any DOE guidelines prohibiting a student from receiving 20 hours of SETSS support per week. Ms. testified there is no maximum amount of SETSS hours the IESP team would be able to recommend for a student. Since the Department’s obligation was to craft a program not based on what was convenient for the Department or the resources that the Department had available, but, rather, based on what this child’s unique needs required, the CSE’s actions ran afoul of federal and state education law. See Cedar Rapids Comm. Sch. Dist.v. Garret F., 526 U.S. 66 (1999);[20] 20 U.S.C. § 1400(d)(1)(A).
Ms. stated that any child who needs more than ten hours of SETSS should be in a special education placement. Tr. 38-4 (5.7.20). However, it is well settled that a student’s recommended program must be the least restrictive environment (“LRE”) for the student, meaning that the student is educated to the maximum extent appropriate alongside his or her non-disabled peers. See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.1 14(a)(2)Q), 300.116(a)(2); 8 N.Y.C.R.R. §§ 200.1(cc), 200.6(a)(1); see also M.W. v. New York City Dep’t of Educ., 725 F.3d 131, 143 (2d Cir. 2013) (“[T]he IDEA . . . cautions that ‘special classes,separate schooling, or other removal of students from the regular education environment’ should only occur ‘when the nature or severity of the disability of the child is such that education in regular education classes with the use of supplementary aids and services cannot be achieved satisfactorily’”) (citing 20 U.S.C. § 1412(a)(5)(A)); G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 574 (S.D.N.Y. 2010), aff'd 486 Fed. Appx. 954 (2d Cir. 2012) (explaining that there is a “rebuttable presumption” in favor of mainstreaming a student). Mindful of the “tension between IDEA’s goal of providing an education suited to a student’s particular needs and its goal of educating that student with his non-disabled peers as much as circumstances will allow,” Briggs v. Bd. of Educ. of Conn., 882 F.2d 688, 692 (2d Cir. 1989), the Second Circuit has outlined a two-pronged test for determining whether a school district has satisfied the LRE requirement. See M.W., 725 F.3d at 143-44 (citing P. v. Newington Bd. of Educ., 546 F.3d 111,119-21 (2d Cir. 2008)).
ITagree that does not need to be in a special education setting; she understands a lot of what is said in her class, she gets along well with her peers and her teachers, and has expressed that she wants to learn in the same way that her peers are learning. Tr. 87-13. should be in a mainstream school. _’s past school was not mainstream and her mother did not think she was getting the education she knew that her daughter was capable of. Tr 67-1. The Parent wanted her daughter to be in a mainstream school for socialization and because she was capable of learning the way other children do. Tr 67-1.
Therefore, based on the evidence the CSE had a duty to recommend supports and services that would allow — to achieve meaningful progress in a general education classroom with the support of SETSS and related services.
To be appropriate, the program recommended for a student must be likely to produce progress, not regression, and to confer a meaningful benefit, gauged against the student’s potential. Mrs. B., 103 F.3d at 1120; see also Deal v. Hamilton Cty. Bd. of Educ., 392 F.3d 840,862 (6th Cir. 2004). The DOE’s recommendations would not confer a meaningful benefit because the CSE only offered 10 hours of SETSS, despite the fact that was previously mandated to receive 15 hours of SETSS, According to Ms. ; requires 20 hours of SETSS in order to make meaningful educational progress.
Although the IDEA does not address the specific remedies a hearing officer may order, a hearing officer has broad authority to grant such relief as he deems appropriate, given the circumstances of the case. 20 U.S.C. §§ 1412(a)(1), 1415G)(2)(C)(iii); see Burlington, 471 U.S. at 369-70 (explaining that the IDEA fails to limit the remedies a court may order for a FAPE deprivation and thus empowers a court to order any relief “‘appropriate’ . . . in light of the purpose of the Act” to ensure that students with disabilities are provided with a FAPE); Letter to Kohn, 17 IDELR 533 (OSEP 1991).
Parent’s counsel asserts that as a result of the DOE’s failure to provide — with sufficient special education supports for the 2019-2020 school year, the Parent was forced to arrange for appropriate supports for her daughter in order to avoid substantial regression and to achieve meaningful educational progress. Par. Exh. M-2. Furthermore, as the CSE failed to recommend an appropriate amount of SETSS, the Parent hired a private SETSS provider to meet her daughter’s needs of 15 hours per week of 1:1 SETSS at a rate of $150.00 per hour. Tr. 58-24. I agree that Ms. ’s rate of $150.00 per hour is reasonable and appropriate given her credentials and expertise. Ms. ’s hourly rate takes into account preparation time in the evening, time spent with the student, telephone calls with the parent, communicating with the school principal, travel time, out of pocket expenses such as teaching materials, and gas and insurance for the car. Tr. 85 (6.29.20)
Ms. recommended 20 hours per week of SETSS for in order to achieve meaningful educational progress. The Parent and Ms. testified that ’s greatest area of need is retention; she has a hard time recalling what she has learned. —__ was in the 4th grade for the 2019-2020 school year, but she was functioning at a 2nd grade level for reading and writing, and at a 3rd grade level for math. Tr. 72 (6.29.20). Concededly, — had received benefit from the 15 hours a week of SETSS. Tr. 80 (6.29.20). Her reading and math has improved, and in turn, her selfesteem has improved. However, she remains behind and, with additional SETSS hours, she will be able to make more meaningful progress and catch up to her same-age peers. Tr. 83.
Based upon the evidence I find that that 15 hours per week of SETSS is appropriate. should be awarded; the student was making progress.
Hearing Officer ’s Findings of Facts and Decisions (exhibit B) ordered the DOE to provide — with summer services. The record demonstrated that the school district did not comply with that order. Additionally, the record established that when — does not have services over the summer, her skills regress. Both Ms. , and the Parent testified that when _is without her SETSS services over the summer, she forgets what she has learned. Tr. 74-18. Ms. testified that in the past summers when _ did not receive summer instruction, it would set her back several months. Tr. 78-21 (6.29.20). Upon her return to school, time would then be sent catching up on work from the past school year. Tr. 79-6.
“{I]n light of the extraordinarily wide range of physical, mental and emotional impediments that qualify one for special treatment under the [IDEA}, Congress could hardly have been expected to specify a uniform school term.” Georgia Ass’n of Retarded Citizens v. McDaniel, 716 F,2d 1565, 1577 (11m Cir.). A school district, when developing an IEP, must address each child’s “unique” needs. /d. at 1569. If a student’s “unique” conditions meant that the summer break would effectively undo educational benefit of the school year causing significant educational and behavioral regression, summer services would be required to provide.
The record establishes, without rebuttal evidence of any kind, that the denial of summer services undeniably causes significant regression in _’s educational abilities. Ms. , testified without rebuttal that — has shown regression in her skills and it is both difficult and timeconsuming to get her back to where she was before the summer. ITagree that has extensive and complex needs, has displayed regression each year which deprives her of a significant portion of skills and abilities. agree that _’s regression provides the basis upon which 12- months services should be awarded.
A hearing officer has broad authority to grant such relief as he deems appropriate according to the circumstances ofa case. 20 USC 1412(a)(1), 1415G)(2)(C)(ii1); 34 CFR 300.516(c)(5); see Burlington, 471 U.S. at 369-70 (explaining that the IDEA fails to limit the remedies a court may order for a FAPE deprivation and thus empowers a court to order any relief “ ‘appropriate .. . in light of the purpose of the Act” to ensure that students with disabilities are provided with a FAPE); Frank G., 459 F.3d at 271; Letter to Kohn, 17 IDELR 533 (OSEP 1991); see also SRO Appeal Nos. 05-113; 06-001; 06-003; 11-053.
Based on equitable considerations, as _ _ failed to receive summer services in the amount of 15 hours per week of SETSS services, the DOE is ordered to pay for up to 135 hours of make-up SETSS services (15 hours per week X 9 weeks = 135 hours).
Due to the DOE’s failure to provide — with a paraprofessional over the summer months, or with adequate SETSS through the year, the parent hired a private para-professional and tutor. served as a tutor with an hourly rate of $65.00. Tr. 101. Ms. helped review the work that was covered during the school day; this helped her to retain the information she had learned earlier in the day.
The parent also hired a private paraprofessional during July and August of 2019. The private paraprofessional expenses totaled $1,200.00. The parent maintained that she paid for these services privately and was forced to borrow money.
In light of the foregoing, I find that for the 2019-2020 school year as discussed herein, I find and order as follows: (1) that the DOE failed to provide — with appropriate supports and services to meet her educational needs for the 2019-2020 school year; (2) that requires fifteen (15) hours per week, of individual SETSS at an enhanced rate of $150 per hour; (3) that required SETSS and related services over the summer months in order to avoid substantial regression; (4) that the DOE shall provide direct payment to for amounts owed by the Parents asaresultof ’s receiving private SETSS for the 2019-2020 school year upon receipt of an invoice in a form satisfactory to the DOE.
(5) that the DOE reimburse the Parents in the amount of $1,200.00 for the cost of the paraprofessional services for the summer of 2019, subject to proof of payment from the parents;
(6) an order that the DOE reimburse in the amount of $65.00 per hour for the cost of the private tutoring services the Parents had to secure tomeet __’s needs, subject to proof of payment from the parents;
(7) that the DOE provide compensatory education in the form of 135 make-up SETSS sessions that the DOE should have provided and that All Payments are to be made within 30 days of receipt of invoices by the DOE in a form acceptable the DOE.
Dated : November 1, 2020
Gary D. Peters
PLEASE TAKE NOTICE
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.
designed’ to meet a child’s ‘unique needs and is reasonably calculated to enable the child to receive educational benefits. Endrew F., 137 S.Ct. at 999 (emphasis in original); M.H., supra, 685 F.3d at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007)).
Footnotes
[3] 7/1/19 Due Process Complaint 7 BACKGROUND The student, hereinafter referred to as is currently an -year-old girl with a learning disability. She has receptive and expressive language delays, struggles with: reading word problems, following directions, and understanding new concepts. She also suffers from seizures and has a severe nut allergy. ’s attention and concentration levels are weak; her reading, writing, and math skills are delayed and she presents with cognitive regression. Parent asserts that requires a significant amount of weekly Special Education Teacher Support Services ( “SETSS”) in addition to her related services and paraprofessional health services in order to enable her to achieve meaningful educational progress . DEPARTM ENT’S POSITION: M s. stated that the last IESP recommended 10 periods of SETSS which was the appropriate level of services to address her needs. The DOE also asserts that the enhanced rate requested by the parents to deliver the services for their daughter is not reasonable.
[20] U.S.C. § 1412(a)(5)(A)); G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 574 (S.D.N.Y. 2010), aff’d 486 Fed. Appx. 954 (2d Cir. 2012) (explaining that there is a “rebuttable presumption” in favor of mainstreaming a student).