New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: January 14, 2011

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

N/A N/A DOE 01/14/11

PARENT 01/14/11

PARENT 01/14/11

On November 2, 2010, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), concerning a dispute between the Parent of an year old student attending and the New York City Department of Education (“DOE”) - regarding the student’s special education program. After adjournments were granted on consent or for good cause, the impartial hearing was held on January 14, 2011. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision. The DOE did not appear at the impartial hearing.

BACKGROUND

The student in this case is classified as and . (P-A) His Individualized Education Program (“IEP”) dated November 13, 2009, recommends placement in a class with a staffing ratio, in a school with related services of and , , and a . (Id.) The IEP also recommends a “ ” on the , “5 x 2 x 1.” (Id.) The Parent’s Due Process Complaint (“DPC”) alleges that the DOE has failed to provide the for the student. (DPC & T-4-5)

THE DOE’S CASE

The DOE did not call any witnesses nor submit any documents into evidence at the hearing. In fact, the agency did not even appear at the impartial hearing. (T-3-4) The agency did not file an answer or give the Parent “Prior Written Notice” in this case. Finally, the DOE did not request an adjournment of the impartial hearing. (Id.)

THE PARENT’S CASE

The Parent proceeded “pro se.” She stated that she has experience with the impartial hearing process. (T-4) She called two witnesses to testify on her behalf and submitted two documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s first witness is the student’s . (T-10) She stated that the dispute with the DOE has been going on for least (5) years, excluding last year when the student was provided with a on the school . (T-11) She witnessed the Parent talking with the student’s and the of her school, trying to get her to be designated the student’s . She is a with the DOE. (T-12)

The witness stated that her told her that she did not think it would be possible to have her designated the student’s “for reasons.” (T-13 & 15) Those conversations were had in September of 2010. (T-15) If she was so designated, she would continue to work at her school. (T-14) She would just leave on her lunch break which is at the end of her work day, and on the with the student. (Id.)

The witness stated that she has been a for years. (T-15-6) She has rode on the with students. (T-16) She knows the student his whole life. (Id.) The student needs a because the is not always going to be there if he should need something. (Id.) At the student’s IEP meeting, the DOE agreed that he needed a . (T-17) The DOE has agreed to a since the student was in . (Id.) In the past, the DOE has reimbursed the Parent’s because they did not provide a . (T-18) When the student was in the grade last year, he had a the whole year. (T-18) The witness was not familiar with the student’s classification. (T-19)

The Parent’s second and final witness is the student’s . (Id.) She stated that the student is classified as . (T-19-20) Last year he had a . (T-20) The student does not have the same this year because the left the student with a at the end of the school year and she was very about that. (Id.)

The witness stated that on the first day of school this year, the school did not come. (Id.) The student’s was rejected as his because her believes that it would violate some kind of rights for a to on the with a child. (T-22)

The witness stated that for her to bring the student to school is very strenuous because she has to go to work and then get back to school by to pick the student up. (T-23) She wants to be reimbursed for taking the student to school. (T-24) However, her main concern is that sometimes the student does not get to school on time. (T-24-5) If the student’s was designated his she might get paid for an extra hour. (T26)

The witness stated that the student’s has improved tremendously. (T-27) She concerned that if the student was on the and had to go to the , he might not be able to his need to the . (Id.) The student is not completely - . (Id.) They used to take a to school often, but for the most part it’s been . (T-27-8) It is about a minute to school. (T-28) By , it takes about minutes. (Id.) The is usually (Id.)

The witness stated that the school offers an “extended day” at , wherein they provide extra reading and math services. (T-30) If the student gets to school late, he misses the extended day services. (T-31) The student is in the placement and receiving the services his IEP recommends, with the exception of the . (T-33)

The student’s IEP notes that his “ with his instruction and requires additional support and recommends that he receive the services of a and a .” (T-34 & P-A) The witness stated that the student can get when he is trying to explain something. (Id.) The student also has a problem separating from her. (Id.) Sometimes, he may down. (T-35) The student does not others. (T-36)

The student’s IEP also states that the student’s has improved from last year, but he still needs a to deal with transitions and expressing his needs appropriately. (Id.) The student was decertified for during the IEP meeting that was had the week of the impartial hearing. (T-38) She did not attend the student’s most recent IEP meeting. (T-40) There were no new evaluations for the student at his most recent IEP meeting. (Id.) She has yet to see the student’s new IEP. (T-41) She does not know if the student’s was removed at the most recent IEP meeting. (T-42)

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (See 20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (See Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (See Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted] and Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09). Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087).

The DOE 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. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 37071; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007). The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016).

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at

364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049).

DOE’S FAILURE TO APPEAR

The DOE failed to appear for the impartial hearing as scheduled, failed to file and serve an answer, or serve a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e) “Prior Written Notice” means written statements developed in accordance with Section 200.5(a) of the Regulations of the Commissioner of Education, and provided to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student.

It is noted that silence in a responsive pleading is an admission, or that a counterclaim in federal practice is compulsory in the answer or deemed waived. (See New York Practice, 4th Edition §§223 & 224, citing Federal Rules of Civil Procedure, Rule 13(a) & Cummings v. Dresher, 18 N.Y.2d 105, 108, 271 N.Y.S.2d 976, 218 N.E.2d 688, 690 (1966)) Additionally, as a general matter, the parties to an impartial hearing are obligated to comply with the reasonable directives of the Impartial Hearing Officer (“IHO”) regarding the conduct of the impartial hearing. (SRO No. 05-026, 04-103 and 04-061). An IHO may require the parties to be present at the impartial hearing. (8 NYCRR 200.5(j)(3)(xiii). An IHO’s order to the parent (here the DOE) to attend the impartial hearing in order to be questioned is a reasonable directive that obligates the agency to comply. (SRO No. 09-073)

The parties’ appearance is integral to the administration of an impartial hearing. At an impartial hearing, the IHO is authorized to administer oaths and to issue subpoenas in connection with the administrative proceeding. (8 NYCRR 200.5[j][3][iv]) An IHO may ask questions of attorneys or witnesses for the purposes of clarification or completeness of the hearing record. (8 NYCRR 200.5[j][3][vii]) The parents, school authorities, and their respective attorneys or representatives, have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses at the impartial hearing. (8 NYCRR 200.5[j][3][xii]) The IHO may take direct testimony by affidavit in lieu of in-hearing testimony, provided that the witness giving such testimony shall be made available for cross-examination. (8 NYCRR 200.5[j][3][xii][f]) None of these processes can occur without the participation of the parties.

Accordingly, an IHO’s dismissal of a DPC with prejudice, based on the failure of the party to prosecute and comply with reasonable directives issued during the proceeding, has been held appropriate under the circumstances of the case. (SRO No. 04-

061) Under New York law, a party’s failure to show up at the scheduled time for trial may entitle the opposing party to a default judgment. (CPLR § 3215(a)) The party who defaults in appearing concedes only liability and not the amount of “damages.” (See CPLR § 3215, First Nat. Bank & Trust Co. v. Classic Collateral Corp., 44 A.D.2d 868, 355 N.Y.S.2d 504 (1974), James v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967), McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930))

As noted above, the DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c]) Here, the DOE did not appear at the hearing or proffer any evidence that it has offered the student a FAPE, and specifically, that it is providing the student with a transportation as mandated by his IEP. (T-3-4 & P-A) This amounts to a tacit concession that the agency did not offer the student a FAPE by failing to provide him with his mandated transportation . The DOE did not serve and file an answer in the case, nor did the agency serve the Parent with “Prior Written Notice”, which would provide either a denial of the Parent’s allegation, or some explanation for the agency’s failure to assign the student a transportation .

Both of the Parent’s witnesses testified credibly that the student has not had a transportation this school year, and also in past years. (T-11 & 20) However, a party must establish more than a de minimus failure to implement all elements of the IEP to establish a denial of FAPE, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP. (See Houston Independent School District v. Bobby R., 200 F.3d 341 at 349 [5th Cir. 2000]; see also Fisher v. Stafford Township Bd. of Educ., 2008 WL3523992, at *3 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ. of Albuquerque Pub. Schs., 535 F.3d 1243 [10th Cir. 2008] and Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]).

In reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material." (See A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 [2d Cir. March 23, 2010] and Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811 [9th Cir. 2007] [holding that a material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled student and the services required by the student's IEP]; see also Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 (D.D.C. 2007) [holding that where a student missed a 'handful' of speechlanguage therapy sessions as a result of the therapist's absence or due to the student's fatigue, nevertheless, the student received consistent speech-language therapy in accordance with his IEP, and the district's failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student's program]).

Here, the uncontroverted record established that the student has not received his mandated transportation for the 2010-2011 school year. The record is devoid of any evidence of a resulting detrimental harm to the student. To the contrary, despite the absence of the , the student’s is said to have improved tremendously. (T-27) There is no evidence in the record of incidents that have occurred on the school that can perhaps be attributed to the absence of a . The student is receiving all of his services mandated by his IEP, including the services of a in school, absent the . (T-33 & DPC) The student’s IEP notes that his has improved from last year, although he still needs the services of a crisis . (P-A)

There was testimony from the Parent that he needs a transportation because he might need something that the matron cannot provide and that he sometimes misses “extended day” services because he gets to school late. (T-16, 24-5, 27 & 31) The Parent also testified that it is “strenuous” for her to take the student to school. (T-23) However, because the student is receiving all of his other services and progressing under the program the DOE has prepared for him, I do not find that the DOE’s failure to provide the student with his mandated transportation amounts to a failure by the agency to implement a “substantial”, “significant” or “material” portion of the student’s IEP. Accordingly, I find that the DOE has not denied the student a FAPE for the 2010-2011 school year.

It is well established that administrative officers may award compensatory education when a child with a disability has been excluded from school, or denied appropriate services for an extended period of time. (See Burr by Burr v. Ambach, 863 F. 2d 1071 [2d Cir., 1988]). In Burr, the court upheld an IHO's award of (18) months of compensatory education to be provided after the student's 21st birthday. (See Harris v. District of Columbia, 19 IDELR 105 [D.C. D.C., 1992] and SRO No. 97-35) Actual funds may be awarded to a Parent only where a Parent obtains and pays for special education services to which it is ultimately determined the child was entitled. (See A.A. v. Bd. of Educ., 196 F. Supp.2d 259, 264 [E.D.N.Y. 2002] and Straube v. Fla. Union Free Sch. Dist., 801 F. Supp. 1164, 1182 [S.D.N.Y. 1992]). Finally, the United States Department of Education, Office of Special Education Programs (OSEP) has opined that an impartial hearing officer has the authority to "grant any relief he/she deems necessary…to ensure that a child receives the FAPE to which he/she is entitled" but that the relief must be consistent with the entitlement to a FAPE and "should not impose obligations that would go beyond entitlement." (See Letter to Kohn, 17 IDELR 522 [OSEP 1991])

Here, the Parent has incurred the cost of acting as the student’s “transportation ” because the DOE has failed to provide the student with special education services he is clearly entitled to receive. The Parent seeks reimbursement for the same. (T-24)

However, a party requesting an impartial hearing may not raise issues at the impartial due process hearing that were not raised in its original due process request unless the other party agrees (see 20 U.S.C. § 1415[f][3][B], 34 C.F.R. §§ 300.511[d], 300.508[d][3][i] and 8 NYCRR 200.5[j][1][ii]), or the original request is amended prior to the impartial hearing per permission given by an impartial hearing officer at least five days prior to the hearing. (See 20 U.S.C. § 1415[c][2][E][i][II], 34 C.F.R. § 300.508[d][3][ii], SRO No. 07-046, 06-065 and 06-

139) The Parent’s DPC does not request reimbursement for acting as the student’s “transportation .” (DPC) Accordingly, the DOE did not receive notice that such a claim would be made at the impartial hearing. As such, I must find that that the Parent is not entitled to reimbursement for the cost of taking the student to and from school for the 2010-2011 school year.

The Parent testified that the student had a new IEP meeting during the week that this impartial hearing was held. (T-38) She did not attend that meeting. (T-40) A school district may, under certain circumstances, conduct a CSE meeting in the absence of a student’s parent. A CSE is required to include the parent. (See 34 C.F.R. § 300.321 and 8 NYCRR 200.3) However, a CSE may proceed without a parent or in attendance and the CSE may make decisions in the parent's or absence if a school district is unable to convince a parent or a guardian to attend, so long as the school district maintains a detailed record of its attempts to secure a parent's participation. (See 34 C.F.R. § 300.322[d], 8 NYCRR 200.5[d][3]&[4], SRO Nos. 05-059, 04-050 and 04-052)

Here, the Parent received notice of the meeting and several dates were discussed. (T-

40) The meeting was then scheduled for January 11th, but the Parent testified that she “…could not attend the meeting.” (Id.) There is nothing in the record indicating that the DOE did, or did not conduct the January 11th IEP meeting in the Parent’s absence, in accordance with the rules stated above. State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination. The decision shall reference the hearing record to support the findings of fact." (See 8 NYCRR 200.5[j][5][v]). In the absence of any evidence, I must decline to find that the IEP meeting on January 11th and the resulting IEP, are flawed under law.

There is nothing in the record, absent the Parent’s testimony that she failed to attend the January 11th IEP meeting, which sustains a finding that the Parent has not cooperated with the CSE. Equitable considerations would not bar an award to the Parent had the record supported such a finding. For all of the reasons stated herein, I find that I must deny the Parent’s request for relief in this case.

NOW therefore, it is hereby

ORDERED that the Parent’s request for relief in her DPC dated November 1, 2010, is DENIED. Dated: February 18, 2011

_________________________

Impartial Hearing Officer

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 RECORD

Number/Letter Title Dated For #of Pages

N/A N/A N/A DOE N/A

A IEP 11/13/09 PARENT 08

B Receipts Various PARENT 04