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AMENDED FINDINGS OF FACT AND DECISION
Case Number: 161779
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: October 25, 2016
Actual Record Closed Date: November 23, 2016
Hearing Officer: Dora Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 25, 2016
ESQ., Attorney — Student
Parents
(Via Telephone) — Student
District Representative — DOE
District Representative, Observing — DOE
— DOE
The parent of filed a request for an impartial hearing on July 26, 2016, challenging the student’s educational program for the 2014-2015, 2015-2016 and 2016- 2017 school years and requesting compensatory education, an independent evaluation at market rate; and development of an appropriate IEP following receipt of the evaluation. (Par. Ex. A) I was designated to hear this matter on
July 28, 2016, after the prior hearing officer recused.
An impartial hearing was held before me on October 25, 2016. The compliance date was extended on two occasions, due to the extensive testimony, and to allow the parties to submit written closing statements; with a final compliance date of December 8, 2016. (IHO Ex. I, II).
At the hearing, the Department of Education (“DOE”) stated that it agreed to fund the requested independent evaluation, at the rate of . (Tr. p.
12).[1] The parent stipulated that the request for compensatory services related to the 2014- 2015 and 2015-2016 school years; and not the 2016-2017 school year. (Tr. p. 17).
Parent’s Position
The parent is requesting an award of at the
(“ ”) at a rate of per hour; and reimbursement for costs associated with ( in total for and
); ; funding for an independent evaluation by a provider of the parent’s choice, at the market rate; and that the CSE reconvene to review the evaluation. The parent also requests of compensatory ( ), based upon the DOE’s failure to provide the service ( ) . (Tr. pp. 26-27; IHO Ex. IV).
Department of Education Position
The DOE agrees that the parent is entitled to compensatory education; but argues that relief should be limited to of compensatory education based upon a denial of FAPE for the 2015-2016 school year. It did not address the evidence that the student was not provided with the services recommended in his 2014-2015 IESP. (IHO Ex. III).
The DOE did not present any witnesses or documentary evidence. (Tr. p. 20).
Evidence at Hearing
is a with a classification of .
(Par. Ex. B). His classification is not in dispute. (DOE Ex. 5) At the time of hearing, he was a student at the , a public school in . His current program consisted of an (“ ”). (DOE Ex. 5).
attended ,a private school, from until March 2016, when he was a student. (Tr. p. 30). From his year, he had an IESP, which was not consistently implemented. (Tr. pp. 29,
32).
According to Ms. , his mother, . (Tr. p.
31).
During the 2013-2014 school year, received
(“ ”). His reported that
. In , it was reported that he had made progress; but needed . He had difficulty . It was recommended that he continue to receive , . (DOE Ex. 14).
On July 30, 2014, an Individualized Education Services Program (“IESP”) was developed for . The Committee on Special Education (“CSE”) continued the recommendation for , ; but recommended a . It also recommended . (DOE
Ex. 12, p. 5).
Ms. testified that she called the on the list provided by the DOE, but was unable to secure a for for either the 2014-2015 or the 2015 -2016 school year.
Nor did he receive any during that time period. (Tr. pp. 32; 35;
50). She testified that the who had serviced him for the previous three years moved away; and couldn’t recommend anyone to fill the position. (Tr. p. 50). She did not alert the CSE to the fact that she was unable to locate a provider. (Tr. p. 40).
She testified that during the 2014-2015 school year. In
September 2015, she requested a re-evaluation and a new IESP, in order to secure
. (Tr. pp. 33-34). In
March 2016, the parents removed from the , because
;
. It was then that the parents decided to enroll him in the , which is a public school in New York City. (Tr. pp. 36, 41).
; (
) , . (Tr. pp.
44-46). He received for , and . (Tr. p. 47;
DOE Ex. 15).
When first entered the , he received special education services for ; in a . After about a month, he started receiving special education services ( ) in ; , and . (Tr. pp. 53-55).
A evaluation was performed on March 3, 2016.
.
. There was also
evidence of . On , he was
. In , he
. (DOE Ex. 7).
On May 19, 2016, the CSE developed an Individualized Educational Program (“IEP”) recommending for , to be implemented on May 30, 2016. (DOE Ex. 5). Ms. agreed with the services; but felt that he needed , such as . She was told that he could see the to address his needs. (Tr. pp. 39, 48-49).
Mr. , testified that she brought for testing at the
(“ ”).
, the , testified that she was certified in and in ; and has experience as an teacher and an teacher. (Tr. p. 57). provides . (Tr. p. 58). employs who are certified, including who are certified in . (Tr. p. 58).
On September 9, 2016, was tested at in the following areas:
. (Par. Ex. C). On a test of involving ,
. Ms. testified that this indicates that he should receive . (Tr pp. 61-62). On the , which tests ’s , he achieved a ; but
. (Tr. p. 64).
On the , he achieved a
, indicating that . (Tr. p.
66).
On the ( ), which was
a , he achieved a . (Tr. p. 69; Par. Ex. C-2).
On a , he . (Tr. p. 70; Par. Ex. C-2).
In , ;
. (Par.
Ex. C2-3). In summary, Ms. described him as
. developed a
. This is based upon an average of what similar students required to complete the necessary curriculum. (Tr. pp. 72-75).
For , it was recommended that receive (
). In “ ”, recommended
that he receive . For
(
), it was recommended that he receive ,
, for a total of . also recommended the following
: ; ;
. In total, was recommended. (Par. Ex. D).
charges per hour for its services. (Tr. p. 80). There is also an of , and a . (Tr. p. 81). works with students with and has a . (Tr. p. 81). It can also provide . (Tr. p. 95).Ms. has not spoken with any of ’s teachers. (Tr. p. 90).
Findings of Fact, Conclusions of Law and Order
2014-2015; 2015-2016 School Years
As was parentally placed for the 2014-2015 and the majority of the 2015-
20165 school years (from September 2015 until March 2016) , an analysis of the parent’s claim for compensatory education should begin with a discussion of the school district’s obligation to him as a parentally placed student.
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...”
A guidance memorandum from the State Education Department, dated September 2007, titled “Chapter 378 of the Laws of 2007- Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c” (hereinafter referred to as “the
Memorandum”) explains school district responsibilities under 3602-c of the Education Law. According to the Memorandum, “equitable basis” means that:
“Special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district”.
The parent claims that, as a parentally placed student, was entitled to a Free Appropriate Public Education (“FAPE”); (IHO Ex. IV). For parentally placed students, however, the school district’s obligation is to provide special education services in the same manner as compared to other students with disabilities attending public or nonpublic schools within the school district. Application of a Student with a Disability, Appeal No.
11-020. While was certainly entitled to implementation of his IESP, the DOE could not be charged with providing with a FAPE, as the parents had removed him from the public schools, and placed him in a private school. is entitled to receive compensatory and to make up for the DOE’s failure to provide the services recommended in his IESP, as set forth below. See Application of a Student with a Disability, Appeal No. 09-122.
2014-2015 School Year
It is uncontradicted that during the 2014-2015 school year, did not receive any of the services recommended in his IESP. The IESP then in effect provided for
, ; and
. The recommendation for was consistent with the recommendation of his , who reported that he was progressing with that level of service.[2]
Based upon a , I find that he is entitled to
I also find that he is entitled to
, as requested by the parent.
I further find that the services provided by are an appropriate compensatory service; provided the is a .
2015-2016 School Year
From September 2015 until March of 2016, when attended a private school, he did not receive any of the services recommended in his IESP. Therefore, he is entitled to and services for that period of time.
I agree with the parent that he should have also received the services recommended in his IESP until such time as the CSE reconvened in May. (IHO Ex. IV,
6). The record also supports the parent’s testimony that would have benefited from , in addition to the services which were recommended at the May 19, 2016 IEP meeting. Therefore, I will order that the DOE provide with . I also find that he is entitled to , for the deprivation of services during the 2015-2016 school year.
Request for Independent Evaluations and CSE Reconvene
At the hearing, the DOE stated that it agreed to fund the requested independent evaluation, at the rate of , as requested by the parent. Both parties agree that the CSE should reconvene following the completion of the evaluation.
ORDER
Therefore, it is hereby ordered as follows:
1. The DOE shall directly fund by a certified , to be used within . Said services shall be provided by (or another qualified provider if should become unavailable) at the rate of per hour; and shall be paid by the DOE upon submission of monthly invoices by . The DOE shall also pay for the cost of , and for the ;
2. The DOE shall fund an independent evaluations, at the rate of , with a provider chosen by the parent;
3. The CSE shall reconvene within 20 days of receipt of the foregoing evaluation to recommend an appropriate program for ;
4. The DOE shall
, necessary to receive the services provided in this
Order.
5. The DOE shall provide with
. Original Decision Rendered: November 30, 2016 Dated: December 1, 2016
DORA LASSINGER, ESQ.
Impartial Hearing Officer DL:
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
PARENT
A Impartial hearing request, 7/26/16, seven pages
B IEP, 5/19/16, 14 pages
C , 9/9/16, three pages
D , undated, one page
E , 101 pages
DEPARTMENT OF EDUCATION
1 Withdrawn
2 Due process response, 8/4/16, four pages
3 Withdrawn
4 Prior written notice, 5/20/16, four pages
5 IEP, 5/19/16, ten pages
6 Notice of IEP meeting, 3/29/16, three pages
7 evaluation, 3/12/16, six pages
8 Consent for additional assessments, 1/7/16, one page
9 Three-year reevaluation, 1/4/16, one page
10 Parent notice of intent, 4/30/15, one page
11 Prior written notice, 7/30/14, three pages
12 IESP, 7/30/14, seven pages
13 Notice of IEP meeting, 7/30/14, three pages
14 progress report, 7/30/14, two pages
15 Student transcript, undated, one page
IHO
I. Case follow-up sheet, 8-30-16, 1p.
II Case follow-up sheet, 10-25-16, 1p.
III DOE Closing Brief, 11-23-16, 5 pp.
IV Parent's Closing Brief, 11-23-16, 10 pp.
Footnotes
[1] The parent’s counsel agreed that this was the rate the parent was seeking. (Tr. p. 12). Both parties agreed that an IEP meeting should be held following the conclusion of the evaluation. (IHO Ex . III and IV).
[2] While the IESP provided for , ’s recommended that the service be provided .