Impartial Hearing Decision

FINDINGS OF FACT & DECISION

Case Number: 190716

Student’s Name:

Date of Birth:

District Number:

Hearing Requested by: Parent

Dates of Hearing: August 15, 2020

October 15, 2020

Actual Record Closed Date: December 1, 2020

Hearing Officer: Gary D. Peters, Esq

HEARINGS

August 15, 2020

Attorney Parent

DOE Designee Dept. of Education

October 15, 2020

Attorney Parent

DOE Designee Dept. of Education

PARENT’S EVIDENCE

Letter Date Name of # of Pages

Document

A 11/5/19 DPC 2

B 10/4/20 Progress Report 1

C 9/30/30 Affidavit 1

D n/a Provider License

5

E 19-20 Provider Invoices 12

19-20 Parent Call Log

F 1

G 2019 Parent Federal Tax Return 1

H 6/27/19 IESP 31

INTRODUCTION

On the above date, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. Section 1415(f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case 190716. The hearing was conducted at the Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York or Remotely. The Department of Education, hereinafter referred to as the “DOE” was represented by their Designee and the parent was represented by their Attorney

.

BACKGROUND

is a student known to the DOE, Committee on Special Education (CSE) when she qualified for classification as a student with a “Learning Disability”. parents enrolled her in a private school and the CSE developed an IESP for her. The last agreed upon IEP developed for this student was on 09/27/2017 and on 6/27/19 an IESP was prepared. The IEP and IESP recommended: Special Education Teacher Support Services (SETSS) – 13 times per week in and a host of related services for the summer of 2019 and the 2019-2020 school year.

The DOE failed to implement SETTS services and there was no SETSS provider available at the beginning of the school year. The parents efforts to locate an available SETSS provider ( ) from the DOE list were unsuccessful and they had to unilaterally locate a provider.

PARENT’S POSITION

A CSE meeting was held for the student on June 27, 2019, At this meeting the CSE created both an IEP for the summer of 2019 and IESP for September 2019-June 2020. Both the prior IEP and IESP created at this meeting provide for 13 periods per week of bilingual SETSS services, as well as the related services of counseling, occupational therapy, physical therapy, and speech language therapy. As indicated in IESP, she presents with cognitive, social/emotional/ and language deficits. She exhibits severe delays in the areas of social interaction and academic delays.

The parent was unable to find a provider who will work with the student at the current P3 rate and given extensive needs, they located a SETSS provider from an agency. The available provider who addressed her needs are seeking an enhanced P-3. The CSE has not met their affirmative obligation to provide the student with the support as mandated on her IEP/IESP

PARENT’S CASE

Based upon the documentary evidence, the Parent is seeking payment for the SETSS services for 13 hours per week of bilingual SETSS on a 12-month basis and related services.

The DOE has been unable to secure and identify a SETSS provider in accordance with the IESP; the parent has had no choice but to go out and secure a provider on her own who was able to provide the services that her daughter requires. The evidence included a list of the providers that the parent contacted in order to obtain the SETSS services that her daughter required and demonstrated that she has been unable to find anyone.

Also in evidence is a report detailing the progress that the student made over the school year, with the SETSS supports provided to her. The invoices billed to the parents established that the rate charged for the services was $125.00 per hour.

Parent is also seeking that the order include the payment for related services as set forth on the student's IESP for counseling, OT, PT, and speech; wherein the services were to be provided by RSA’s. Lastly, the parents' tax return, established that they are unable to pay for the services and are seeking direct funding.

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 20 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 20 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 11126 at 20). 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; however, pursuant to my Pendency Order dated February 15, 2019, the DOE has funded Pendency from December 21, 2019 through the end of the school year. 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 WL 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, I find that the DOE failed to provide SETSS for the 2019- 2020 school year and order that DOE

1. Pay for the student's SETSS services, 13 periods a week of SETSS in , individually on a 12 month basis at an enhanced rate and

2. Provide and pay for via RSA’s for : (2x30x1, PT 2x30x, Bilingual Speech 3x30x1)

Dated: December 14, 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.