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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: July 7, 2011
August 5, 2011 Actual Record Close Date: September 22, 2011 Hearing Officer: Jeffrey J. Schiro, Esq.
CORRECTED
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 7, 2011
Attorney — Student
Parents
Representative — DOE
Teacher — DOE
Teacher — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 5, 2011
Attorney — Student
Parents
Director, (via telephone) — Student
Representative — DOE
— DOE
I. PROCEDURAL HISTORY
This hearing was requested on April 19, 2011 by counsel for the student and the parent pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1401, et. seq. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to pay costs associated with the services that were provided to the student during July 2010 (Exs. P-A at 4).[1] Hearings in this matter were held on July 7, 2011 and August 5, 2011. Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
II. FACTUAL BACKGROUND
The student has been raised in a is members and and . The student has been exposed to and ; however he is decidedly more comfortable and confident when . to be his (Ex. P-G at 2).
At the time of the impartial hearing, the student was ) years old and had recently completed his year (the 2010/11 school year) at the School ( ) (Exs. SD-2, P-A at 1-2, P-C at 1). The student's eligibility for special education and related services as a student with another is not in dispute in this hearing (Exs. SD-1 at 1, SD-2, SD-3, P-A at 1, P-B at 1, P-C at 1).[2] See 34 C.F.R. § 300.8(c)(10); 8 NYCRR § 200.1(zz)(10).
On April 29, 2008, when the student was in ,a evaluation of his levels of functioning was conducted. The student‟s was measured using the . On that assessment, the student‟s measured in the , with a (Exs. SD-1 at 1; P-G at 1, 3).
The student‟s academic functioning was measured using the - Second Edition ”).[3] On that assessment, the student‟s skills measured in the (Exs. SD-1 at 1; P-G at 34). skills were estimated to be adequate for his ideas, but and areas. The student‟s at that time was reportedly (Ex. P-G at 2).
At a meeting held on May 20, 2009, the Committee on Special Education (the “CSE”) determined that the student was , with grade level. In , the student had developed a , but needed to families. In to to (Ex. P-C at 3).
Notwithstanding its finding that the student “has made steady progress [during ] in developing his skills,” the CSE recommended for the grade, the 2009/10 school year, that he receive his (“ ”) in an integrated class with .[4] Related services of were also recommended for the student. The parent indicated at the meeting that she agreed with the CSE‟s recommendation (Exs. SD-2 at 2, P-A at 2, P-C at 1).
In a February, 2010 narrative, the stated that:
[He] has been progressing in the area of . He responds to simple “ such as, “ .”
He is and . He
continues to and it may be difficult for the rest of the group to . We work on and sounds (Ex. SD-8).
On a March 2010 mid-year report, however, the student‟s teachers, stated that “he is not meeting standards.” He was “ , emergent .” He had a ” and needed “continued support in .” His “need[ed] work” and , .” He was able to of a possible from the list. The student also displayed difficulty figuring out and staying on task during . The teachers also noted that the student “ and has on his work. This affects his listening and his ability to follow directions.” Although the student‟s CTT instruction was supplemented with reading intervention, five times per week in a small group, the teachers recommended that the student “be placed in a classroom that provides more support and more one-on-one instruction,” to “strengthen his academic and social foundation as well as allow room for more success to be experienced” (Exs. SD-1 at 1-2, SD-5 at 2-5, P-B at 2, P-D). [5]
On March 9, 2010, the parent signed a consent form for a reevaluation of the student (Ex. SD-12). The CSE reconvened on May 10, 2010. At the May 10th meeting, the CSE noted that “since March 2010, [the student] is now reported to be reading within the 1st level.” Given that the student “benefits from , , and to of questions,” the CSE recommended for the student‟s , the 2010/11 school year, that he receive special class instruction with a . See 8 NYCRR § 200.6(h). While related services of , and were also recommended for the student, the CSE apparently informed the parent that the student would be reading instruction. The parent indicated at the meeting that she agreed with the CSE‟s recommendation (R. 51; Exs. SD-2 at 1; P-B at 1, 3, 20, P-D).
The student was reevaluated on May 24, 2010 using the . The evaluator noted:
The student did not respond to any of the comprehension question [sic] presented.
His classroom teachers indicate that his reading level is at the . His word reading ability was the . His for and a . His spelling abilities were at the . His listening comprehension skills were at the (this involved sentence completion and ) (Ex. SD-1 at 2).
Based on her assessment, the evaluator concluded that, “at this time, [the student] would benefit from more intensive intervention to assist him to meet level expectations” (Ex. SD-1 at 2).
In a June 8, 2010 letter, the parent informed the principal that she intended to secure tutoring services for the student at during the summer of 2010 at public expense (Ex. P-D). The parent signed a contract for the tutoring services on the same day (Ex. PH).
In a June 2010 end-of-year report, the student‟s teachers confirmed that the student could: (1) using while using ; (2) solve using ; (3) use words; (3) others; and (4) use his words (Ex. SD-4).
In an undated letter (presumably written during the 2010/11 school year), an “Aspiring Principal” of the School confirmed that the student was receiving instruction (despite what the CSE may have told the parent at the May 10, 2010 meeting), both during the school day and on an extended day basis. The letter‟s author noted, however, that the student‟s reading instruction might be withdrawn if the reading specialist‟s schedule changed due to other responsibilities (Ex. P-F).6
By March of 2011, the student‟s described him as “a confident, diligent reader,” his reading fluency had improved and he was consistently using most of his reading strategies. In writing, the student displayed “ level” skills, but needed assistance with and in to . In , the student “ of and , knows his facts, and and is ” (Exs. SD-[6] at 1-2, SD-7 at 3-5).
III. POSITIONS OF THE PARTIES
A. The DOE
The parent‟s application for compensatory education services should be denied because the CSE offered the student a free appropriate public education (“FAPE”) during both the 2009/10 and 2010/11 school years. The program was inappropriate for the student because it was not designed to address the student‟s unwillingness to communicate with those with whom he is not comfortable or familiar. The equities also do not support an award of compensatory education or reimbursement to the parent because she contracted for the program before the CSE made its final recommendations for the student for the 2010/11 school year (R. 40-42).
B. The Parent
The parent should be reimbursed for tutoring services privately secured for the student during July 2010 as compensatory education because the DOE failed to provide the student with a FAPE during the 2009/10 school year. The parent also seeks funding for additional services due to the DOE‟s failure to offer the student a FAPE for the 2010/11 school year. Despite the parent‟s request, the CSE failed to place on the student‟s education program (“IEP”), but instead only provided them to the student informally and inconsistently. Lastly, the parent seeks attorneys‟ fees, costs and disbursements (Ex. P-A at 3-4).
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the 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.[7] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
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. See 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 and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). 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).
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.” 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). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See 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; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). 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), quoting 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. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).
An appropriate educational program being 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, 34 C.F.R. § 300.320(a)(4);[8] NYCRR § 200.4(d)(2)(v).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c).
B. Compensatory Education
The parent‟s request for compensatory education must be denied (Ex. P-A at 4). Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). Compensatory education may be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the IDEA. See 20 U.S.C. §§ 1401(3), 1412(a)(1)(B); N.Y. Educ. Law §§ 3202(1), 4401(1), 4402(5). In New York State, a student who is otherwise eligible as a student with a disability may continue to obtain services under the IDEA until his or she receives either a local or Regents high school diploma, see 34 C.F.R. § 300.102(a)(3)(i); exclusion from, educational serves for a substantial period of time. See Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2, 113 n.6 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 (N.D.N.Y. 2001).
I find that the student is ineligible, as a matter of law, for the remedy of compensatory education because he remains eligible to receive services under the IDEA. As of the date of this decision, the student is years old and will remain eligible to receive special education and related services until his receipt of a high school diploma, see 34 C.F.R. § 300.102(a)(3)(i); 8 NYCRR § 100.5(b)(7)(iii), or through the end of the ten-month school year in which he turns twenty-one (21) (Exs. P-A, P-B, P-C), see N.Y. Educ. Law §§ 3202(1), 4404(1), 4402(5)(b); 8 NYCRR §§ 100.9(e), 200.1(zz); see also 34 C.F.R. §§ 300.102(a)(1), (a)(3)(ii).[8] Additionally, the parent has failed to identify any gross procedural violation which has served to deny the student a FAPE for a substantial period of time (Ex. P-A). See Somoza, 538 F.3d at 109 n.2, 113 n.6.
Likewise, while State Review Officers have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation, see, e.g., Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005), I find that the student is ineligible for this remedy given the parent‟s acknowledgment that the student was not denied any recommended services (R. 171-172; Ex. P-B, P-C).
C. Tuition Reimbursement
A board of education may be required to reimburse parents for private educational services obtained for a student, 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); School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 369 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 09 Civ. 5097 (S.D.N.Y. Feb. 1, 2011); Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998).
1. Appropriateness of the DOE‟s 2009/10 program I find that the DOE failed to provide the student with a FAPE for the 2009/10 school year because the CSE failed to provide him with personalized instruction with sufficient support services to permit him to benefit educationally from that instruction. See Rowley, 458 U.S. at 203.
During the 2009/10 school year, the student‟s , the student attended an integrated (a/k/a ) (R. 48, 50, 55, 57; Exs. SD-2 at 2, P-C). Ms. , the student‟s special educator, stated that there were twenty-one (21) students in the class, ten (10) of which had IEPs
(R. 48, 56-57). Ms. provided the student with small group instruction in (R. 49). She also worked , (R. 51, 59-60).
While Ms. stated at the hearing that the student benefitted from her individualized instruction, a progress report she co-authored in March 2010 stated that “he is not meeting standards” (R. 61; Ex. SD-5 at 2-5). Likewise, while Ms. stated at the hearing that the student was capable of , she stated in the March 2010 report that he was “ , ” (R. 49-50; Ex. SD-5 at 2-5).
As of March 2010, the student also reportedly had a “ ” and needed “continued support in writing.” His ” and .” The student displayed and during . The student was “ and [had] a . This affects his listening and his ability to follow directions” (Ex. SD-5 at 2-5).
Ultimately, Ms. and her team 2010 that the student “ that provides more instruction,” to “ as well as allow room for more ” (Exs. SD-1 at 1-2, SD-5 at 2-5, P-B at 2, P-D). Given that the March 2010 report was prepared contemporaneously to the student‟s instruction, I give it greater weight that than Ms. ‟s July 2011 recollections of the student‟s performance during his he derived from her instruction.
2. Appropriateness of the DOE‟s 2010/11 program I find that the DOE provided the student with a FAPE for the 2010/11 school year because the CSE provided him with personalized instruction with sufficient support services to permit him to benefit educationally from that instruction. See Rowley, 458 U.S. at 203.
During the 2010/11 school year, the , the student attended a 12:1 special class (R. 74; Exs. SD-2 at 1, P-B). Ms. , the student special educator, stated that there were eleven (11) students in the class, who were classified as , , (R. 74). Ms. provided the student with small group instruction in and (R. 76, 92, 95-96).
Ms stated that the student made “amazing progress” during his year (R. 78). Over course of school year, the student‟s a Level “ ,” which Ms. explained corresponded to a level, respectively (R. 80, 84-88, 90-91). As a result of Ms. ‟s , the student‟s writing also improved throughout the school year (R. 95-98).
3. Appropriateness of program
Given my finding that the DOE failed to provide the student with a FAPE during the 2009/2010, I turn to the appropriateness of the parent‟s private program. With respect to the second criterion for an award of reimbursement, the parent must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). 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.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; 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. “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.‟” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. 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 parent‟s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides „education instruction specifically designed to meet the unique needs of a handicapped child.‟” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89.
I find that the program was not appropriate because it did not provide the student with specifically designed instruction to meet his unique educational needs.
Ms. , the Center Director of the Program, confirmed that the student participated in her program during the summer of 2010 (R. 116-117, 119-120). Following a three (3) hour, individual evaluation administered on May 13, 2010, it was determined that the student exhibited and , but “the was the ” (R. 120-126; Ex. P-E at
1-3).[9]
Despite the Center‟s determination that the student‟s primary was , it recommended the “ ” program for the student, which Ms. indicated addressed (R. 127, 132; Ex. P-E at 4). The student received individual instruction in this program, four
(4) , for just under in total during the summer of 2010 (R. 129-130, 133). The student showed “ ” in the targeted , (R. 133-134, 136; Ex. P-E at 5-7).
In reading fluency, however, the student‟s grade level on an August 4, 2010 reassessment conducted by the Center (R. 133-134; Ex. P-E at 5-7). Ms. conceded, “we hadn‟t gotten him to the point where we were working on fluency” . . . “reading fluency was still the goal, but it was not an activity he actually worked on” (R. 136, 147). Given the Center‟s failure to work with the student in the area it identified to be his primary area of deficit, i.e., reading fluency, I cannot conclude that it was reasonably calculated to meet his needs.
4. Relevant Equities
Having determined that the private program selected by the parent was inappropriate, I need not reach the issue of whether or not the equities support an award of reimbursement. See M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 (2d Cir. 2000); Walczak, 142 F.3d at 134. However, in the instant case I have reviewed the record regarding the equities and find that there are no equitable reasons which would have limited an award of tuition reimbursement had the parent demonstrated the appropriateness of the private program.
The IDEA allows that 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 student from public school, or by written notice ten (10) 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); 34 C.F.R. § 300.148(d)(1).
The IDEA also provides that 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, 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); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 U.S. App. LEXIS 20967 (2d Cir. Aug. 9, 2006). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
In a June 8, 2010 letter to the Principal, the parent gave the DOE adequate written notice of her intent to make a unilateral placement of the student at public expense (Ex. P-D). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).
There is also no contention or evidence indicating that the student‟s parent was uncooperative with the CSE, see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the cost of the student‟s tuition to the program is unreasonable (Ex. P-H), see Carter, 510 U.S. at 16.
D. Attorneys‟ Fees
The parent‟s request for attorneys‟ fees must also be denied (Ex. P-A at 4). The IDEA does not authorize an administrative officer to award attorneys‟ fees or other costs to a prevailing party; and entitlement, if any, to such costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415(i)(3)(B); see also Application of the Bd. of Educ., Appeal No. 08-026 (SRO May 12, 2008). Since only a court can determine who is a prevailing party entitled to attorneys‟ fees, I conclude that I lack subject matter jurisdiction over this aspect of the parent‟s claim and dismiss it accordingly.
V. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
(1) the parent‟s claim for reimbursement of costs associated with the student‟s participation in the program during the summer of 2010 is hereby denied; and
(2) the parent‟s claim for services for one (1) month following the final decision and order in this matter as compensatory education is hereby denied; and
(3) the parent‟s claim for attorneys‟ fees is hereby denied; and
(4) the parent‟s due process complaint notice is hereby dismissed in its entirety.
Dated: September 28, 2011
Corrected Date: October 25, 2011 (Correction of a Clerical Error on the Exhibit Page)
____________________________
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer
JJS:jj
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 Parent‟s Due Process Complaint, 4/19/11, 5 pp. B IEP, 5/10/10, 21 pp. C IEP, 5/20/09, 16 pp. D Letter to from Parent, 6/8/10, 1 p. E Testing Summary, 5/13/10 and 8/4/10, 8 pp. F Letter to Parent from , Undated, 1 p. G Confidential Evaluation, 4/29/08, 5 pp. H Schedule and Financial Information, 5/8/10, 2 pp. I Student Writing Samples, 2010-2011 School Year, 82 pp.
DEPARTMENT OF EDUCATION
1 Evaluation, 5/4/10, 3 pp. 2 Final Notice of Recommendation, 5/19/10 and 5/20/09, 2 pp. 3 [Reserved] 4 End of Year Report, 6/2010, 1 p. 5 Mid-Year Report, 5/2009, 5 pp. 6 Mid-Year Report, Early Literacy Intervention, 3/2011, 3 pp.\ 7 Third Grade Narrative Report, 2/2010, 1 p. 8 Therapy Report, 2/2010, 1 p. 9 Student Attendance, Literacy Intervention, 1009-3/11, 16 pp. 10 [Reserved] 11 Observation Guide, Reading Assessments, 9/10, 8 pp. 12 Additional Request for Reevaluation, 3/9/10, 1 p.
IMPARTIAL HEARING OFFICER
I Letter to Parties, 5/26/11, 5 pp.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Other Health Impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student‟s educational performance. 8 NYCRR § 200.1(zz)(10).
[3] The WIAT-II provides an assessment of academic skills and compares the student‟s functioning with same-age peers. The results are expressed as standard scores and instruction levels. Standard scores indicate how far above or below the average an individual falls, using an average of 100. Age/Grade Equivalent scores indicate that the student has attained the same score (not skills) as an average student of that age or grade (Ex. SD-1 at 1-2).
[4] From the testimony of Ms. , I understand the class to be an integrated co-taught class (R. 48, 50, 55, 57). “Integrated co-teaching services means the provision of specially designed instruction and academic instruction provided to a group of student with disabilities and nondisabled students.” 8 NYCRR § 200.6(g).
[5] While the exhibit is entitled “Mid-Year Report March 2009,” I find that the report was actually from March 2010, based on Ms. testimony that she provided the student with instruction during his grade, the 2009/10 school year (R. 48, 50, 55-57; Exs. SD-2 at 2, SD-5, P-C).
[6] The goal of the school‟s Program was to enable enrolled children to at grade level with (Ex. SD-6 at 3).
[7] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[8] NYCRR § 100.5(b)(7)(iii), or until the conclusion of the ten-month school year in which he or she turns age twenty-one (21), see N.Y. Educ. Law §§ 3202(1), 4404(1), 4402(5)(b); 8 NYCRR §§ 100.9(e), 200.1(zz); see also 34 C.F.R. §§ 300.102(a)(1), (a)(3)(ii). Within the Second Circuit, compensatory education has been awarded to students who are ineligible for special education services by reason of age or graduation if there has been a gross procedural violation of the IDEA resulting in the denial of, or
[8] While the parent argues that Second Circuit has extended the remedy of compensatory education to students who remain eligible for special education instruction and services, citing P. v. Newington Bd. of Educ., 546 F.3d 111 (2d Cir. 2008), the Court‟s opinion in Newington is devoted primarily to fashioning a test for the IDEA‟s LRE requirement. While the Court did affirm, over the objections of the student‟s parents, that part of the hearing officer‟s order which instructed the school district to hire a professional consultant, that remedy is distinguishable from the individualized educational services sought by the parent here on a compensatory basis.
[9] I find that the evidence of a deficit in word recognition to be, at best, mixed. While the student‟s word recognition skills measured slightly below average on the (standard score ), they measured in the average range on the of ( ) (R. 127; Ex. P-E at 1-2)