New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 159306

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: February 16, 2016

Actual Record Closed Date: February 16, 2016

Hearing Officer: Audrey Daniel, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 16, 2016

Parents

Provider — Student

Committee on Special Education, Impartial Hearing Designee — DOE

Teacher and Provider (Via Telephone) — DOE

INTRODUCTION

On December 16, 2015, I was appointed by the New York City Department of Education (“DOE”) to act as the impartial hearing officer (“IHO”) in a case brought under the Federal Individuals with Disabilities Education Act [20 U.S.C. §1415(f)(3).]

(“IDEA”) by the parent (“Parent”) of (“ ” or “Student”). The Parent requested the hearing by filing an impartial hearing request with the DOE on December 11, 2015. A prehearing conference was held on January 15, 2016. Although Parent was notified of the conference, which was held by telephone, she did not attend. A hearing was conducted on February 16, 2016.

BACKGROUND

Student was born on , and attends the grade at the in (Exh. I). At the request of Parent, Student was evaluated for special education services; both a and evaluation report were completed. (Exh 4 and Exh. 6). At a Committee on Special Education meeting held on or about September 16, 2015, Student was classified as and was awarded hours weekly of (“ ”) weekly as well as minute session of . An Individualized Education Services Program (“IESP”) was drafted by the DOE and signed by Parent. (Exh. 5). According to her due process complaint, Parent was unable to locate a service provider despite making numerous phone calls, until she finally located . (Exh. I). As a remedy, and an enhanced rate of payment for the above named service provider of $ per hour including payment for services rendered to date and services of hours per week of services during of 2016 at an enhanced rate.

DOE CASE

In support of their position, the DOE had one witness. Ms.

testified that she is a retired and

, with over forty years of experience. After retiring from the DOE, she continued to independently. She has been in the education field for more than forty years and is certified in and . (Tr. 19-21). She testified that she is familiar with the registry to provide services for children as she is on the registry. (Tr. page 20 and Exh. 8).

Ms had reviewed Student’s IESP and testified that he has in terms of , but noted which would be targeted during .

(Tr. page 2)1. She has worked both with graders and student with . (Tr. page 22). She is familiar with the and has serviced students who required . When services are to begin, she signs a contract with the DOE. (Tr. page 23). She is aware of the per-session rate of $ that the DOE offers for compensation and she is aware of where to send that form in order to be compensated.

She keeps progress notes and submits her time notes to the DOE by computer. (Tr. pages

23-4) She opined that based on Student’s it would be difficult to justify services for . She would prefer he and . (Tr. pages 23-4). Ms. than testified how she would address each goal in the IESP, including and

, , and

. (Tr. page 25-8). She believes that the amount of services is accurate. (Tr. page 28)

In addition to her testimony, Ms. submitted a resume, as well as testifying as to her experience, background and willingness to work with Student at the DOE rate. (Exh.7). She would have been available to September She testified that she and was willing to work with Student . She was surprised that Parent had never called her, although she may have missed a phone call where someone did not leave a message. (Tr. pages 29-30). There was no cross-examination of the witness.

In addition to Ms. ’s testimony, the DOE submitted eight exhibits in support of their case. The exhibits were admitted without objection from the Parent.

Included in these exhibits was a Notice of Recommendation dated September 16, 2015, which recommended hours of ( ).

Dated the same day was a , which was addressed to the same address listed on the Parent’s due process complaint. This document is entitled “ and outlines, not only the services to be provided, namely the type and number of hours for services, but instructions to complete the form when a provider was located. There is no evidence that this form was filled out by Parent. On this form is a contact person.

(Exh. 1). This form also requires the provider to complete a section prior to starting services. The provisions of this section provide, among other things, that the provider would have to “accept no more than the maximum rate allowed as payment in full for these services.” (Exh. 1-2). A list of service providers was also provided to Parent. The

DOE stated that these documents are also online. (Tr. page 12-13)

PARENTS’ CASE

Parent was pro se and testified on her own behalf. She submitted no documents to be entered into evidence. She testified that Student received services , but that she stopped services when because she was concerned that . According to her testimony, Student was approved for services in , but she declined. (Tr.

pages 31-33). From through present, Student attended the . Throughout , Student did not receive services, but sometime during his grade year, his classroom teacher expressed concerns about Student’s . During grade, Parent paid for private services, but requested the DOE evaluate Student for services prior to the beginning of grade. (Tr. pages 33-

4). As Student attends a private school, he was given a Notice of Recommendation and an IESP which provided for special education services for a student parentally placed in a private school. (Tr. page 34). Parent testified that she received a package of documents, including a book of providers, by mail when services were approved and called quite a few providers, but they did not want to , which was necessary because of school and work schedules. (Tr. page 34-36). She called Ms. from the list, she came to meet her in the beginning of October and started a few days later.

(Tr. page 35-6). The provider decided to do days rather than because Student is also receiving services.1 When she went to the resolution meeting, Parent testified

Although Student is entitled to services, there has been difficulty obtaining services, and he is not that she was first informed about the rate and the documents the providers must fill out.

(Tr. pages 36-38). However, she felt that because of the amount of work that Ms.

put in because of Student’s and , she agreed with Ms. ’s suggestion of an enhanced rate. In November, after finally going to the CSE office, Parent wrote a letter which is in the due process complaint. (Tr. pages.38-42 and Exh. I).

Parent’s second and final witness was Ms. . This witness testified that she was contacted by Parent at the end of September and set up a day during the first week of October to meet. (Tr. pages 44-45). They met on October 7, 2015 and went over the IEP and the requirements for service, including the number of hours. The witness also let Parent know that she required the enhanced rate and she Parent told her “whatever she needed, she would get the paperwork” and began after Columbus Day.

(Tr. pages 45-6). Ms. sees him hours on , and and for an each. The witness did not initially follow up in the enhanced rate, for which she takes responsibility as “time got away”, and when she subsequently mentioned it, she was told by Parent that “I’m going to get to that”. She

“assumed things were underway and was not staying on top of it as she probably should have.” (Tr. pages 46-7).

Ms. testified that she has been teaching for nine years, but has been in the educational field for over ten years. She is a teacher, licensed in . (Tr. page 48). On cross examination, the witness testified that she is currently on the Department of Education Registry list, and her understanding was that she was put on the list as an independent provider. She is also familiar with the and is aware that, page 2 of the document states that “as the provider and agency we agree to … an hourly rate of $ . (Tr. page 48-9). When she was became services with Student in October, Parent did not give her the . She admitted that it was her mistake as she was aware that as a service provider, she was required to fill out this authorization. It was her decision to continue with services. (Tr.

presently receiving any services. This issue was not a subject of the complaint, and the DOE and Parent are working together to find a provider and make up for missed sessions.

pages 48-49). She testified that she knows she is supposed to fill out the prior to servicing, but that Parent wanted her son to be provided “ASAP”, so she began without competing the documentation. Mom said she was going to get the paperwork, but when Ms. started, she had not gotten it yet. When she asked again towards the end of October or November, Parent said she never heard of the form. (Tr.

pages 49-51). Mother then went to the CSE office, and told the witness that she had been advised to “file an Impartial Hearing”. (Tr. page 51). The witness has serviced only two students under the DOE contract and has never accepted the DOE rate for either student.

(Tr. page 52). The witness did not testify as to why she was requesting for Student.

FINDINGS OF FACT AND DECISION

FAPE

The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C.

sec. 1400(d)(1)(A),(B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to

(a) whether the school district complied with the procedures set forth in IDEA; and (b)

whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).

Further, a board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch.

Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).

The evidence is clear in this case. Student was entitled to receive hours of services based on a evaluation, and a Notice of Recommendation was written based on these recommendations. Parent did not dispute either the classification or recommendations at any point. Although she testified that she received a “packet of documents”, she claims that she did not recall seeing the document, which is the “ ”. (Exh. 1). She was not clear as to what was contained in this packet of documents. However, she did receive the list of providers known as “ ”. (Exh.8)^[2] The second page of this document states that “the purpose of this Registry is to assist in locating permanent New York State licensed or certified (independent) providers who have agreed to provide these services under the specific guideline set forth by the New York City Department of Education. (See, Exh. 8). Both and are on page

87 of that list. (Exh. 8-4). According to her testimony, Parent called any number of providers, but had a limited time frame with which have services could be provided between school and work hours, and wanted services to be provided . She did not provide a list of providers she attempted to contact, nor did she testify to the exact number of phone calls she made. Within a couple of weeks, she located Ms.

from the list of providers. Mr. testified that she had a contract and a contracted rate with the DOE, but chose instead to ask immediately for an enhanced rate, and told Parent that she would only work for an enhanced rate of per hour. (Tr.

page 45). There is no record of any request by Parent for an enhanced rate; more importantly, there is nothing in the record that indicates that the DOE was ever notified either of a difficulty located a provider, or a request for an enhanced rate. Nothing in these facts indicate a failure of the DOE to provide FAPE, nor do not indicate a need to provide an enhanced rate under these circumstances.

Additionally, Parent requested an enhanced rate for . There

is nothing in the record to indicate a need for additional services, at an enhanced rate or otherwise. The DOE’s witness testified that, based on her reading of the evaluations and IESP, there is no indication for an need for . (Tr. pages

24-25). This testimony was uncontroverted. To the extent that additional services are requested as compensatory services, these services are only available as an equitable remedy that provides in-kind special education and other related services for denials of a free and appropriate public education. Application of a Student with a Disability, Appeal No. 08-052 at p. 17-18 (July 16, 2008). See also, Lester H. v. Gilhool, 916 F.2d 865, 868 (3d Cir. 1990) Somoza v. New York City Dep’t of Educ., 538 F.2d 106, 109 n.2 (2d Cir.

2008). FAPE was provided to Student, the remedy of compensatory services need not be addressed. Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005).

Consequently, I determine that the parents' efforts to locate and secure a provider were "insufficient to demonstrate that an enhanced rate [was] required at this time" to obtain the services. Application of a Student with a Disability, 15-055. The record does not indicate that Parent ever notified the DOE of her request for an enhanced rate, or that she continued to look for another provider after Ms.

announced that she would only work for an enhanced rate. Ms. did nothing to follow up with either the Parent or the DOE regarding the processing of her enhanced rate request. Another provider, with much more experience, was and remains willing to and provide services at the rate agreed upon with her contract with the DOE. The DOE, under these circumstances, provided a free and appropriate public education to student and cannot be held accountable for a service provider’s failure to comply with her contract.

ORDER

I hereby order that:

(1) The DOE did not violate Student’s right to a Free and Appropriate Public Education.

(2) Parent’s request for an enhanced rate for is denied in its entirety.

(3) Parent’s request for at an enhanced rate is denied in its entirety.

Dated: February 24, 2016

AUDREY DANIEL, ESQ.

Impartial Hearing Officer

AD:

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.

DOCUMENTATION ENTERED INTO THE RECORD

Department of Education

1 Authorization for Independent , 2 pages

2 Parent Notice of Intent, 4 pages

3 Prior Notice for Placement, 4 pages

4 Evaluation, 2 pages

5 IESP, 9 pages

6 Evaluation, 4 pages

7 Resume of , 2 pages

8 , 28 pages

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Footnotes

[2] The date on this document in October 6, 2016 which is later than the start date for services. However, Parent did not dispute receiving this document in a timely fashion.