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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: Hearing Requested By: Parent Date of Hearing: May 12, 2011 Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED MAY 12, 2011
Student
Student
Student
DOE
HEARING OFFICERS FINDINGS OF FACT AND DECISION
The matter of came before me on May 12, 2011. The date of my designation as Impartial Hearing Officer, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. s. 1415(f)(1) was March 29,2011. The hearing was convened at the request of the parent, which was received on March 29, 2011. The hearing was held on May 12, 2011. The parties made no request to submit post-hearing memoranda. The compliance date is not extended. Appended to the record are the lists of persons in attendance and no documents were submitted into evidence.
Parent has requested this Hearing seeking (1) at The for the 2010-2011
academic year.
BACKGROUND
This is currently years old and by the NYCDOE as / . Tr.p.8. He is involved in a and presently . The has been attending the for the past years. Upon the conclusion of the Resolution period, a hearing date was initially set for May 4, 2011. The parties made a joint request to adjourn the hearing date as they both had not sufficiently prepared for trial and a short adjournment was granted.
THE POSITION OF THE PARTIES
The NYCDOE states that there have been ongoing settlement discussions but to date no agreement or authority to settle this matter has materialized. Tr. p. 9. The
NYCDOE states that it has not submitted its evidentiary submission within the required time as permitted and the Parent objects to any submission at this time as not being in compliance with the five-day evidence rule. The Parent has filed a composite listing of complaints/objections to the created by the NYCDOE for this student. See Parents
Demand for an Impartial Hearing.
THE NYCDOE CASE
The NYCDOE has not submitted any evidence in this matter and has called no witness. As a result of not submitting an IEP and failing to have any witness testify the NYCDOE has defaulted in demonstrating that a free and appropriate public education (FAPE) has been provided for this student. Upon inquiry the NYCDOE represents that it has no objection to the educational program provided by the parents in substitution for the failure of the NYCDOE to provide the student with a FAPE. Further inquiry indicates the NYCDOE makes no allegation or complaint that the parents have failed to cooperate with the NYCDOE in any regard concerning the education of the student. Tr. p. 10-12.
THE PARENT’S CASE
The Parent testified that the has been the full for the 2010- 2011 school year. The Parent testifies that the sum of ( - and ) has been to the .
FINDING OF FACTS AND CONCLUSIONS OF LAW
A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 USC sec. 1401[d][1][A]. The core of the statute is the collaborative process between parents and schools primarily through the IEP process.
“A FAPE is offered to a student when (a) the board of education 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 (Rowley, 458 U.S. at 206-07; 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 (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]; 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 (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]; 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 (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" (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" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see 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" (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]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; 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'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v.
Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (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]; see 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]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
Application of a Child with a Disability, SRO Appeal No. 07-10.
Here, the NYCDOE has failed to produce any IEP constructed for this student. The failure to produce a written IEP at this hearing necessitates a finding that the NYCDOE has failed to provide this student with a FAPE. There being no objection or challenge to the parentally designed educational coupled with the acknowledgement that the parents have not failed in their responsibility to cooperate with the NYCDOE mandates a finding that the parents be and are successful in their complaint that the NYCDOE has failed to provide an appropriate educational for this student. The NYCDOE is hereby Ordered to the parents the sum of ( - and ) upon the proper presentation of cancelled checks and/or other indicia of payment to the for the 20102011 school year. Said shall be made on or before June 30, 2011. DATED May 26, 2011
________________________________
, ESQ.
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.