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NYS Department of Education Hearing Officer Melinda G. Gordon _________________________________ , a minor, by and through his Parent, AY Findings & Decision Case#189364 Petitioners, -against-
NYC Department of Education Respondent. _________________________________
Petitioner is the parent of (“Student”), a student with disabilities. On September 18, 2019, Petitioner filed a Due Process Complaint (“Complaint”) against the New York City Department of Education pursuant to the Individuals with Disabilities Education Act (“IDEA”). P-A.[1] Petitioner was represented by , Esq., , and Respondent was represented by , District Representative, , New York City Department of Education (“DOE”). This Hearing Officer was appointed to preside over this case on October 18, 2019.
Petitioner asserts that for the 2019-2020 school year, the DOE has failed to provide the student with 15 periods of Special Education Teacher Support Services (“SETSS”) as provided for in last agreed-upon IESP, dated May 28, 2019. P-B. Petitioner alleges that she cannot find a special education provider to impart the SETSS services at the DOE’s standard rate and requests that the SETSS services be paid at an enhanced rate. P-B. Petitioner argues that the DOE’s failures constitute a denial to of a Free Appropriate Public Education (“FAPE”) for the 2019-2020 school year. Respondent contests Petitioner’s assertions.
On February 4, 2020, a pendency hearing was held on the above matter. Petitioner’s pendency requests for all services, including SETSS and other Related Services of Speech-Language Therapy 1:1 [2]x30 were granted retroactive to the date of the filing of the due process complaint.
On May 18, 2020, a due process hearing was held on this matter. Petitioner submitted the telephonic testimony of mother and , Director . On May 18, 2020, Petitioner entered into evidence exhibits A, C & D. Petitioner Exhibit B was previously entered into evidence at the February 4, 2020, hearing.
The DOE presented the telephonic testimony of ,a special education teacher who stated he unofficially acted as a liaison or coordinator to students who needed SETSS services at the school attends. Tr. 21, 23-24, 26.2 The DOE also submitted into evidence Exhibit 1. Both parties submitted written closing statements on June 10th, and the record was closed on June 10, 2020.
Jurisdiction
This proceeding was invoked in accordance with the Individuals With Disabilities Education Act (“IDEA”), as amended in 2004, codified at 20 U.S.C. Sections 1400, et seq.; the federal regulations implementing IDEA, 34 C.F.R. Sections 300.1 et seq.; and the Regulations of the Commissioner of Education, Part 200 & 201.
Background
In September 2019, commenced kindergarten and was parentally placed at . Petitioner contends that was denied FAPE because the DOE failed to provide SETSS and failed to provide a provider who could provide SETSS during the 2019-2020 school year.
The DOE alleges that the parent did not provide sufficient notice to the DOE that needed SETSS. The DOE contends that if it had received such notice, it would have provided SETSS to the student.
Findings of Fact
The following facts are not in dispute. The May 2019 IEP provided for to receive 15 periods of SETSS per week for the 2019-2020 school year. Exhibit 1. On September 18, 2020, the parent filed a Complaint notifying the DOE that the “student’s parent was not able to locate a special education teacher provider to work with the student at the standard rates for the 2019-2020 school year.” Exhibit P-A. The DOE failed to provide a SETSS provider for this student during the 2019-2020 school year. Tr. 38.
The DOE presented the testimony of , who testified that he is a special education teacher who unofficially acts as a liaison or coordinator to students who needed SETSS services at the school attends. Tr. 21, 23-24, 26. testified that did not appear on a list he received from the school, which identified students who needed SETSS. Tr.27. testified that he would have been able to service
However, he conceded he does not usually service kindergarten students such as Tr. 33. Although stated that he and other providers were available, he was unable to identify any other DOE providers or identify when he or any other provider would have been available to service this student. Tr. 28-33.
Petitioner called mother, who testified that she spoke to teachers and other individuals at school on how to obtain SETSS for her son. Tr. 39. She stated she was referred to . Tr. 39. She testified that she was never informed that the DOE had a SETSS provider assigned to the school. Tr. 43. She also stated that she was never referred to . , Director of , provided testimony regarding the rate of $150.00 per hour. Tr. 51.. testified that commencing September 16, 2019, has provided fifteen hours per week of one to one SETSS to Tr. 51, 56. Conclusions of Law
The DOE failed to provide a SETSS provider to , even after receipt of the parent’s Complaint on or after September 18, 2019. Although the DOE contends that it had a SETSS provider available to service , no provider was ever assigned to this student even though the DOE was on notice that needed SETSS. The DOE cannot be absolved of its statutory obligation to implement a special education services program for a privately placed student by authorizing the student to receive such services, and then failing to provide a provider. Application with a Student with a Disability, Appeal No. 17-034. If it fails to do so and forces the parents to find a special education provider on their own, then the DOE must fully fund the cost of such services. Id. at 8. Despite being on notice, at no time has the DOE demonstrated that a specific provider was ready, willing and able to provide SETSS to The testimony of established that the DOE was unaware of educational needs. Tr. 27-29. also equivocated as to what providers were available to service this student and when service could have been provided. Tr. 30-33. The parent was forced to find a provider on her own, and the provider costs $150 per hour.
Petitioner further requests that all SETSS not delivered during the 2019-2020 school year due to the COVID-19 Pandemic be delivered at the conclusion of the 2019-2020 school year. Petitioner’s request is granted to the extent that the DOE is ordered to provide a provider to to provide any outstanding SETSS due to for the 2019-2020 school year.
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered: (1)The DOE failed to provide SETSS to since the commencement of the 2019-2020 twelve (12) month school year. Based on the May 2019 IEP in place for this student, should have received SETSS services (2)The DOE is ordered to pay or reimburse Petitioner for all SETSS service expenses to date. Upon receipt of this order the DOE is ordered to provide any outstanding SETSS services due to for the 2019-2020 school year. If the DOE fails to provide SETSS services to upon receipt of this order, the DOE shall have a continuing responsibility to reimburse Petitioner for any additional SETSS expenses at an enhanced rate.
IT IS SO ORDERED.
DATED: June 22, 2020 Melinda G. Gordon
Melinda G. Gordon
HEARING OFFICER
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Of®cer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act. The regulations governing appeals are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
As those Regulations detail, before filing an appeal, if either party intends to appeal the decision, a Notice of Intention to Seek Review shall be personally served upon the opposing party before the Appeal itself is filed, no later than 25 days after the date of the decision sought to be reviewed.
The Appeal itself must be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall ®le the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Of®ce of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found.
The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Of®cers. Such service is made at 1 00 Church Street, New York, NY 1 0007 at the Messenger Center.
Footnotes
[1] References to the Parent’s Exhibits are denoted as “P” followed by the exhibit letter. References to the District’s Exhibits are denoted by a number.
[2] References to the Transcript are denoted by “Tr.” followed by a page number.