Impartial Hearing Decision

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In The Matter of the Appeal of
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On
Behalf of
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From Action of *
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The J Union Free School District
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By
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APR
08
2011
HEARING OFFICER’S FINDINGS OF FACT AND DECISION
IN THE ABOVE CAPTIONED MATTER
April 1, 2011

HEARINGS WERE HELD ON THE FOLLOWING DATES: October 7, 2010 December 21, 2010 April 1, 2011 INDIVIDUALS WHO APPEARED AT THE HEARINGS For the Parent Name Title Mrs. Parent Representing the Parent: Mrs. BM represented herself. For the District Ms. >, Representing the School District: Coordinator of Special Education, Ps FSD Director of Pupil Personnel Services, GS FSD PLLC.

STATEMENT OF FACTS

Born on EL, EES is o BE year-old youngster who has been classified with‘E.” He attends the [i EE program at the ee In a New York. The last agreed- upon IEP for the student, dated July 6, 2010, calls for a Self-contained Class at the With the following services: G/12_ daily for 40 minutes I twice a week for 30 minutes ] once a week for 30 minutes (J Room) I Once/P for 30 minutes (Special Classroom) I twice a week for 30 minutes

A FAPE is offered to a student when the board of education (a) complied 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 education benefits (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]. While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). If a procedural violation has occurred, relief is warranted only if the violation affected the student’s right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents’ opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F.Supp. 2d 656m 659 [S.D,N.Y. 2005]; W.A. Pascarella , 153 F. Supp. 2d, 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D.Vt. 1996], or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the SCS, the Second Circuit has observed that “’for an IEP to be reasonably calculated to enable the child to receive the educational benefits, it must be likely to produce progress, not regression”’ (Weixel v. Bd. Of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. Of Educ., 231 F.3d 96m103 [2d Cir. 1998] [citation and internal quotation omitted]). To do this, the record must be examined for “any objective evidence indicating whether the child is likely to make progress or regress under the proposed pian” (Grim, 346 F.3d at 383 [citation and internal quotation omitted]; Walezak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142F3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199: See Grim v, Rhinebeck Cent. Sch. Dist., 346 F.3d.at 379; Walezak, 142 F.3d at 132; Antbnaccio v. Bd. Of Educ., 281 F. Supp. 2d 710, 726 [S.D.N.Y. 2003). An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 020-014; Application of a Child with a disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). An IEP must include a statement of the student’s present levels of educational performance, including a description of how the student’s disability affects his or her progress in the general curriculum (34 C.F.R. Sec. 300.347[a] [1]; see also 8 NYCRR 200.4[d] [2] [i]}. School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student’s present levels of performance and areas of need (34C.F.R. Part 300, Appendix A, Section 1, Question 1).” Application of a Child with a Disability, Appeal No. 05-105

At an August 6, 2010 meeting, the District CSE recommended that the student’s placement be changed to the EEJUFSD. The parent strongly disagreed and filed for an impartial hearing on September 1, 2010, following which I was appointed the Impartial Hearing Officer. At the request of the District’s attorney, a Pre-Hearing Conference was held on October 7, 2010. Despite efforts on the part of the District to convince the parent to permit her son to attend the GE UF SD, the parent was adamant that she wanted her son to remain at the MM program. After discussion, the District relented and the parties agreed to prepare a settlement of agreement permitting the student to remain at I issued an Interim Pendency Placement Order keeping the student at [I while the settlement was being worked out. Over a period of months, continued efforts were made to arrive at a settlement. However, the parent and the District could not agree on the wording of the proposed settlement. Finally, it was agreed, with the approval of the District and the parent, that I would issue a decision to resolve the matter. On April 1, 2011, I met with the parent and Dr. po at the Special Education Offices in MM to obtain needed facts for this Decision. While the District’s attorney was not present, two telephone conversations were held with him during the meeting. It was agreed that I would issue this Decision as quickly as possible in order to resolve this long-standing matter without any further delay.

BACKGROUND

“The purpose behind the Individuals with Disabilities Act (IDEA) (20 U.S.C. Sec. 1400-1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. Sec. 1400[{d] [1] [A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]. A FAPE includes special education and related services designed to meet the studerit’s unique needs, provided in conformity with a comprehensive written TEP (20 U.S.C. Sec. 1401[8]; 34 C.F.R. Sec. 300.13; see 20 U.S.C. Sec. 1414[d]. 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 parent were appropriate, and equitable considerations support the parent’s claim (Sch. Comm. of Burlington v. Dep’t. of Educ., 471 U.S. 359[1985]; Florence County Sch. Dist. Four y. Carter, 510 U.S.7[1993]; Cerra v. Pawling Cent. Sch. Dist. 427 F.3d 186, 192 [2d Cir. Sept. 28, 2005]). The parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).

DECISION

The student has been attending the | program on a temporary basis while negotiations for a settlement were taking place. This Decision makes the student’s placement at IEEE permanent.

CONCLUSION

With the approval of the District and the parent and on the basis of the statements from the parent and the District and the documents in this case, I find that: 1. The appropriate placement for the student is the es et he es 1 PN New York with the services as listed on the student’s July 6, 2010 IEP. SO ORDERED THIS FIRST DAY OF APRIL 2011 Impartial Hearing Officer PLEASE TAKE NOTICE: Upon receipt of this Decision, the parents and /or the Board of Education have a right to obtain a review by the State Review Officer of the New York State Education Department, under the Education Law, IDEA, and such other laws as my be applicable. Please note the time limits as shown in Part 279 of the Regulations of the Commissioner of Education, as amended, effective June 2004: Section 279.2 Notice of Intention to Seek Review (b) The notice of intention to seek review shall be served upon the school district not less than ten (10) days before service of a copy of the petition for review upon such school district, and within twenty-five (25) days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within thirty-five (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 (4) days subsequent thereto shall be excluded in computing the twenty-five (25)-or thirty-five (35) day period. Please refer to the complete Part 279 for additional details. Failure to file a petition in a timely fashion will result in a waiver of the right of appeal of this Decision.