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NYS Department of Education Hearing Officer Melinda G. Gordon , a minor, by and through his Parents, ER & DR Findings & Decision
Case#190365
Petitioners, -against- NYC Department of Education
Respondent.
Petitioner is the parent of ("Student"), a student with disabilities. On October 23, 2019, Petitioner filed a Due Process Compliant ("Complaint") against the New York City Department of Education pursuant to the Individuals with Disabilities Education Act ("IDEA"). Exhibit P-A.[1] This Hearing Officer was appointed to preside over this case on October 25, 2019.
On November 8, 2019, at 9:30 a.m., a pendency hearing conference was held on the above matter. Petitioner was represented by , Esq., the ; and Respondent was represented by , District Representative, Committee on Special Education ("CSE"). At the hearing, Petitioner made an oral application for Pendency Services based upon the IESP dated May 13, 2019. P-B. Respondent consented to all of Petitioner’s pendency requests
Petitioner asserts that for the 2019-2020 school year, the DOE has failed to provide the student with 5 periods of Special Education Teacher Support Services ("SETSS") as provided for in ’s last agreed-upon IESP, dated May 13, 2019. P-B. Petitioner also alleges that it could not 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, in addition to RSA for Occupational Therapy. P-A. As such, Petitioner argues that these failures by the DOE constitute a denial to of a Free Appropriate Public Education ("FAPE") for the 2019-2020 school year.
Respondent did not present a case in chief at the due process hearing, and did not submit any documents into evidence. Tr. 47.
The parties are in accord that the IESP is not in dispute, that the student is entitled to the services denoted in the IESP, and that the District has failed to provide the SETSS services to the student and RSA for Occupational Therapy. Petitioner has obtained the SETSS services from a private agency for the 2019-2020 school year at an enhanced rate. The District asserts that the rate charged by the agency is excessive.
On June 8, 2020, a due process hearing was held on this matter. Petitioners submitted the affidavit of , Educational Director, , the private agency providing SETSS services to Petitioner entered into evidence Exhibits A through G and submitted a written closing argument on July 14, 2020. Respondent declined to submit a closing statement, but gave an oral closing statement at the completion of the due process hearing on June 8, 2020. Tr. 67-69. The record was closed on July 14, 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.
Findings of Fact
The parties are in accord that the IESP is not in dispute, that the student is entitled to the services denoted in the IESP, and that the District has failed to provide the SETSS services to the student. Petitioner has obtained the SETSS services from a provider for the 2019-2020 school year at an enhanced rate.
Conclusions of Law
The DOE failed to provide a SETSS provider to and no provider was ever assigned to this student. 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. The parent was forced to find a provider, and the provider costs $175 per hour.
Based upon the foregoing 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 13, 2019 IESP in place for this student, should have received SETSS services. (2)The DOE is ordered to pay or reimburse Petitioner for all SETSS service and Occupational Therapy 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. (3)RSA for Occupational Therapy 2x30 1:1 is also ordered for the 2019-2020 school year.
IT IS SO ORDERED.
DATED: July 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] Exhibits of the Parent is denoted by P followed by the exhibit’s alphabetical designation.