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FINDINGS OF FACT AND DECISION
Case Number: 159560
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: April 4, 2016
May 4, 2016
Actual Record Closed Date: May 18, 2016
Hearing Officer: Dora M. Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 4, 2016
Advocate — Student
District Representative — DOE
(Via Telephone) — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 4, 2016
Advocate — Student
Parent (Via Telephone) — Student
(Via Telephone) — Student
Teacher (Via Telephone) — Student
DOE Representative — DOE
The parents of filed a request for an impartial hearing on January 14, 2016, alleging that the Department of Education (“DOE”) Failed to develop an appropriate Individualized Education Service Plan (“IESP”) for the 2015-2016 school year; and that they were unable to locate a provider willing to accept the DOE’s rate. The parents requested as a proposed resolution, an order for the DOE to pay their provider an enhanced rate. The parents also requested compensatory or “make-up” services for related services which were not provided, and an additional session per week of (“ ”). The parent also challenged the (“ ”) goals.[1] (IHO Ex. I; Tr. pp. 7-8).
I was designated to hear this matter on January 20, 2016, after the prior hearing officer recused.
An impartial hearing was held on April 4, 2016 and May 4, 2016. The compliance date was extended on two occasions due to unavailability of witnesses, with a final compliance date of May 29, 2016. (IHO Ex. II, III).
EVIDENCE AT HEARING
is a year old boy with a classification of
. (DOE Ex. 1). His classification is not in dispute. (IHO Ex. I). He is a student at (“ ”), a school.
(IHO Ex. I).
He received Early Intervention Services. As a preschooler, he received related services of (“ ”), and (“ ”). Afterward, he attended , which was an program, and received related services only (not ). (Tr. pp. 109-111).
On March 16, 2015, the Committee on Special Education met to develop an IESP for . The CSE recommended that receive per week for sessions ( ), per week for sessions, and per week ( ) at . The IESP was to be implemented on September 9, 2015. (DOE Ex. 1).2 The goals address ’s and . The goals address ’s
, and . (DOE
Ex. 1, p. 5). 3
, a who participated in the March 16, 2015
meeting as a and district representative, testified that the goals were developed based upon the progress report, and that the parent did not disagree with them. (Tr. p. 22). She testified that his goals address . 4 The IEP was mailed to the parent on April 14, 2015. (Tr. p. 35).
,a assigned to the CSE, testified that is a school, where . She testified that the DOE has providers in the school, who “ ”. She testified that a provider was available to , at the start of the school year, at the DOE rate. (Tr. p.
44). She testified that services are provided through contracted agencies, who are servicing the students at the school. (Tr. p. 45).
Ms. testified that she was informed by the school’s IEP coordinator that even though the parent was offered providers by the school, she chose to hire
, a , to provide services to the student. (Tr. p. 46, 48). Mr.
is a former employee of . (Tr. p. 48). She testified that the DOE has providers who service students at ; and that two of them, Ms. and Ms. , are servicing students, and are available. (Tr. p. 50; DOE Ex. 9,
p. 1). She stated that can be provided ; but
2
The parent testified that she was actually told that the service would be provided
; however she did not challenge the nature of the recommended in her complaint; alleging only that the parents were unable to locate a provider at the DOE rate. 3 The progress report recommends that his goals include
. (DOE
Ex. 11). 4
In an progress report, dated January 14, 2015, it was recommended that continue to receive per week services, for sessions, to . It was noted that . (DOE Ex. 12, p. 2).
that the students at the school are
. (Tr. p. 52).
She testified that in August, the CSE mailed a from ( ) to the parent, together with a link to DOE providers. (Tr. pp. 53-54). She did not have any further contact with the parent until the parent filed the due process complaint. (Tr. p. 54).
After the due process complaint was filed, Ms. wrote to the parent, stating that Ms. and Ms. were both available to provide services to . The parent responded that she had hired to perform the service, as her son is not a candidate for and that “ ”. (DOE Ex. 9 -3).
, a , with specialized training in
, testified that he has been providing services to ( sessions per week) since September 2015. Mr. is . The parent has not paid him for is work so far this year. (Tr. pp. 66-71, 87, 91-92). While he is on the list of DOE providers, and has provided services at the DOE rate in the past; he testified that he does not currently accept the DOE rate, and that he informed the parent of that fact. He testified that he was awarded a rate of per hour, in another impartial hearing; and is seeking to be compensated at the rate. (Tr. p. 70, 94, 96). He testified that the DOE rate depends upon which the provider services. If the provider services , he receives approximately per hour. (Tr. p. 90).
The DOE pays per session (typically ) for services to . (Tr. pp. 90-01).
Mr. described the work he does with , which includes . (Tr. pp. 71, 81). He testified that of the students receive services. With the exception of student, who is serviced by an independently contracted provider ( ); the other students are , provided by a DOE employee. (Tr. p. 85). He testified, however, that would not benefit from the services provided , because . (Tr. pp. 86-87). Most of Mr. ’s work with the student is ; although earlier in the year, there were times when . (Tr. pp. 91-92).
Ms. , the student’s classroom teacher at , testified that she is licensed to teach . ’s class consists of students. Her concerns for were .
. (Tr. p. 99). other students in the class receive . provider, , for . Another provider , started before winter vacation. She works with ; and
, for . The student she works with is different than in that he has issues; whereas has . (Tr. pp.
100-101, 107-108).
Ms. testified that Mr. works well with . He observes him when , and . She speaks with Mr.
daily, and he instructs her in techniques for working with the student. She testified that . She testified that his needs are a little different than the other student in the class who receive , in that ; and his issues are . She testified that he has made a lot of progressing his , including . (Tr. pp. 104-105).
’s mother (who is a ) testified that received early intervention services; and services through the Committee on Preschool Education (“CPSE”) consisting of , and placement at . (Tr. pp. 110-112). She testified that at the ( ) CSE meeting, she informed the team that ’s services needed to be , and . She stated that she was informed the services would be , and that it’s up to the provider, whether they are . (Tr. p. 116). She stated that she did not receive the IESP until the start of the school year. (Tr. p. 119).
Before school started, she received a , with a link to a list of providers.
She testified that she contacted 12-14 providers, but could not find one that would . She also asked at the school for a provider, but was told they did not have a provider that would be able to work with .
(Tr. pp. 120-122). She contacted , Mr. , who stated he would provide the service, but that he only takes an enhanced rate. She agreed because she felt she had no choice. (Tr. p. 121). Mr. told her that she would have to go through the due process procedure in order to secure an enhanced rate. They never entered into a written contract. (Tr. p. 143). If she is not successful in securing an enhanced rate for Mr.
, she will have to figure out a plan, with her husband. (Tr. pp. 144-145). She testified that since the start of the school year, has made progress in , as well as , and . (Tr. pp. 122-123).
The parties stipulated that the public school started on September 9, 2015. (Tr. p
.125).5 ’s mother testified that did not begin receiving until one of the last days in September. (Tr. p. 128). His services did not begin until November 25. (Tr.
p. 129, 155). His provider is funded pursuant to an RSA. (Tr. p. 131). The parent is requesting that the services be made up , and that she be issued an RSA for that purpose. (Tr. p. 129, 160).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Request for Compensatory Related Services
A school district may be ordered to provide “make-up services” to remedy a deprivation of such services. Application of a Student with a Disability, Appeal No. 11-
027. The parent’s testimony that did not begin receiving services until the last week of September 2015 was not disputed. His IESP, which recommended sessions per week of was to commence on September 9, 2016. As he missed of , I find that he is entitled to sessions of , to make up for the deprivation of such services.
It was also uncontradicted that his services, ( sessions per week) did not commence until November 25, 2015. As he missed of services, I find that he is entitled to sessions of to make up
This is also the date set forth on the IESP for implementation of the recommended services. (DOE Ex. 1).
for the deprivation of such services. I will order that the DOE forthwith issue the parent an RSA to provide for the missed sessions.
Challenge to Goals
Having reviewed the goals, I find that they are consistent with the progress report, which recommended that services focus on , including
I agree with the parents, however, that the goals are inadequate in that they do not address , as recommended in the progress report. Therefore, I will order that the CSE reconvene to review ’s goals, and develop appropriate goals.
Request for Enhanced Rate
Education Law § 3602c[2][b][1] provides as follows:
“…The committee on special education shall assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district...”
The school district must recommend a provider which is capable of satisfying the student’s IEP requirements. See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009). The IDEA does not grant the parents “veto power” over the choice of provider. Id. Nor does the IDEA guarantee an education, “that provides everything that might be thought desirable by loving parents”.
Walczak v. Florida Union Free School District, supra, citing Tucker v. Bay Shore, 873 F.
2d 563 (2d Cir. 1989).
I credit Ms. that providers were available, from the start of the school year, to service ; but that the parent chose instead to hire
. Ms. ’s testimony on this point is corroborated by the testimony of the parent and both her witnesses. The parent chose to hire Mr. to provide the service because he provided the service , and . Nevertheless, as the need for services, and services was not raised in the due process complaint; I am unable to find that the DOE’s failure to provide a provider who could provide the services in the manner requested by the parent, entitles her to funding for her chosen provider, at an enhanced rate.
The fact that the parent neither entered into a formal agreement which obligated her to pay Mr. for his services at the enhanced rate; nor ever paid him at all for his services, is another reason that the request for an enhanced rate must be denied.
Nevertheless, in light of the concerns raised by the parent and her witnesses, this matter should be remanded to the CSE to consider whether requires delivered , and .
For all of the foregoing reasons, it is hereby ordered as follows:
1. The parents’ request for an enhanced rate for services is denied;
2. The DOE shall forthwith issue an RSA for sessions of and sessions of ; and
3. The CSE shall reconvene within 30 days of this order to consider whether should receive on an basis; and whether the services should be provided . The DOE shall also review and develop appropriate goals for . Dated: May 20, 2016
DORA M. LASSINGER, ESQ.
Impartial Hearing Officer
DML:
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 IESP, dated 3/16/15, 11 pages
2 Notice of IEP Meeting, dated 3/3/15, 3 pages
3 PWN, dated 5/6/15, 4 pages
4 Observation, dated 1/26/15, 1 page
5 Report, dated 1/7/15, 2 pages
6 SESIS Log, dated 1/6/15-5/6/15, 3 pages
7 Form, dated 3/16/15, 1 page
9 E-mails, 2/2016-3/2016, 8 pages
10 , 2 pages
11 Progress Report, 1/20/15, 4 pages
12 Progress Report, 1/25/15, 2 pages
13 ` Progress Report, 1/16/15, 2 pages
IMPARTIAL HEARING OFFICER
I Hearing Request, dated 1/14/16, 3 pages
II Case Follow-Up Sheet, dated 2/23/16, 1 page
III Case Follow-Up Sheet, dated 4/5/16, 1 page
IV DOE Closing Statement, 5/17/16, 9 pages
Footnotes
[1] At the hearing, the parent stated that she was not seeking any change to the related services mandates; but only compensatory or make-up services for those related services which were not provided. (Tr. p. 141 ). At the hearing, the parent also challenged the mandate which provides for . The parents maintain that the student should be . (Tr. pp. 120-122). This issue was not, however, raised in the due process complaint. (IHO Ex. I).