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: October 12, 2011 Actual Record Close Date: November 12, 2011 Hearing Officer: Martin J. Kehoe, III, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 12, 2011

For the Student:

For the Department of Education:

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The Department of Education of the City of New York will be referred to as District, the guardians as Parent and the student will be referred to as Student.

The Parent herein requested an impartial hearing on July 7, 2011. I was designated to hear this matter pursuant to 20 U.S.C. Sec. 1415 (f)(1). An impartial hearing commenced before me on October 12, 2011. During said hearing it was determined the student was not attending school. Accordingly, an inquiry was made and the issue of pendency was resolved by an agreement of the parties that pursuant to 20 U.S.C. Sec. 1415 (j). It was ordered that the DOE provide placement pursuant to the student’s last agreed placement: namely, the IEP dated 4/25/2011.

Based on the following analysis, I find that a Free Appropriate Public Education (FAPE) was offered to the Student for the 2011-2012 school year but that the Parent has new evaluative material which was not provided to the District at the time the last Committee on Special Education (CSE) was convened. Therefore, I direct the District to reconvene the CSE to consider the new information available from the Parent. This should be accomplished within 21 days of the service of this order. Parent’s Position

The Parent armed with a report from a medical doctor claim that “a lot has changed” (Tr. p. 11, Ex. 8 & Tr. p.30 Ex. P-1) Tr. p. 44). They would argue that new evaluative material would warrant a change in the environment (medically and otherwise Tr. p. 106) as well a program change better tailored to the Student’s needs. (Tr. p. 18, Ex. 5, Tr. p. 143). They contend that the CSE did not have enough information about the Student (See, Tr. p.138 & Ex. P-2 Tr. p. 154 Ex. 7, Tr. p. 161) District’s Position The district counters by asserting an IEP properly developed by a CSE that considered the Student’s available records (Ex. 9, Tr. p. 80, Ex. 11 p.38 & p. 82, Ex. 12, Tr. p.53, pp. 64-66 & 84 Ex. 13 Tr. p 86 Ex. 14 Tr. p.88). That IEP recommends a setting with related services ) and a paraprofessional (Para) (Ex. 6, Ex. 7, Ex. 17, &Tr. p.

105) in a setting designed for the Student’s specialized needs. (Tr. pp. 106-109)

LEGAL FRAMEWORK

IDEA

The (IDEA) is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (FAPE). 20 U.S.C. § 612(a)(I). "A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21." 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as 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, or secondary school education in the state involved, and

- (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).^[1]

A FAPE is crafted through the collaboration of the disabled student's parents, teachers, and school district administrators and is recorded in an Individualized Education Program (20 U.S.C. § 614(d)). The "core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. Weast, 546 U.S. 49, 53 (2005) The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14) In New York State, the IEP is produced by a committee on special education, (CSE) whose members are appointed by the board of education or trustees of the school district. (N. Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005)) The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. (See generally 20 U.S.C. § 615) These procedures include the opportunity for parents to obtain an independent educational evaluation of the child, (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency. (20 U.S.C. § 615(b)(6)) Any such complaint is resolved through an "impartial due process hearing" in which parents of disabled children have "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child." (20 U.S.C. § 615(b)(6)) Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002) In New York State, “The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing . . . ” NY Educ. Law § 4404 (1)(c) modifying the rule enunciated in Schaffer where “The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537 However, when “. . . seeking tuition reimbursement for a unilateral parental placement. . . [the parents] shall have the burden of persuasion and burden of production on the appropriateness of such placement.” NY Educ. Law § 4404 (1)(c) With respect to due process hearings, the IDEA permits each state to determine whether it will provide a single-tier or two-tier administrative review process. (20 U.S.C. § 615(g)) New York has elected to employ the two-tier approach. (N.Y. Educ. Law § 4404 (McKinney Supp. 2005)); accord, Heldman v. Sobol, 962 F.2d 148, 152 (2nd Cir., 1992) Under the New York scheme, a parent who wishes to challenge his or her child's IEP is entitled to a due process hearing conducted by a hearing officer appointed by the local board of education. (N.Y. Educ. Law § 4404(1) (McKinney Supp. 2005)) A party dissatisfied with the decision of the hearing officer has the right to appeal the hearing officer's decision to a State Review Officer. (SRO) (N.Y. Educ. Law § 4404(2) (McKinney Supp. 2005)) After these administrative remedies have been exhausted, a party may bring a proceeding pursuant to Civil Practice Law and Rules Article 4 in state court or a federal action under Section 615(i)(2) of the IDEA. (20 U.S.C. § 615(i)(2)(A); N.Y. Educ. Law § 4404(3) (McKinney Supp. 2004)

Substantive Issue

There is no dispute that the Student would benefit from instruction in special education, or that the related services which the CSE recommended were warranted. The Student is and , He has a diagnosis of and he . He is (Tr. pp. 54-56).

The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, require a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley)

“A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

The IDEA requires that “An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs. . .” (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).” SRO 02-055

With this in mind, I have reviewed the relevant IEP and find the District developed a program offering specialized education and related services with well qualified service providers. Many evaluations to identify the Student's needs were available and the CSE worked to establish appropriate annual goals and short-term instructional objectives related to those needs.

It is therefore ORDERED

In consideration of the totality of the record a Free Appropriate Public Education (FAPE) was offered to the Student for the 2011 -2012 school year .

Because the Parent has new evaluative material which was not provided to the District at the time the last Committee on Special Education (CSE) was convened I direct the District to reconvene the CSE to consider the new information available from the Parent. This should be accomplished within 21 days of the service of this order.

Further, I recommend that the Student remain in the placement identified by the pendency order, above noted, until the CSE considers the material of the Parent and supersedes the contested IEP. Dated: December 1, 2011

________________________________

MARTIN J. KEHOE, III, ESQ.

Impartial Hearing Officer MJK:jj

LEASE 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 ON OCTOBER 12, 2011

PARENT

A Resolution Session Response Form-Mailed, 7/20/11, 1 p. B Resolution Session Response Form-Faxed, 7/18/11, 1 p. C Withdrawn D Notice of Scheduled Resolution Meeting, 7/11/11, 3 pp. E Impartial Hearing Request, 7/7/11, 4 pp. F Final Notice of Recommendation, 6/15/11, 1 p. G IEP, 6/9/11, 18 pp. H Doctor Letter, 6/2/11, 1 p. I Medical, 2/24/11 and 2/25/11, 3 pp. J Request for , 3/1/11, 1 p. K Social History Update, 1/19/11, 2 pp. L Progress Report, 1/25/11, 3 pp. M , 1/24/11,^[2] pp. N Evaluation, 1/24/11, 4 pp. O Withdrawn P Withdrawn Q Final Notice of Recommendation, 9/27/11,^[1] p.

DEPARTMENT OF EDUCATION

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Footnotes

[1] "special education" is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term "related services" is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. 601 (26)

[1] , 9/30/11, 1 p.

[2] , 10/6/11, 2 pp. IMPARTIAL HEARING OFFICER I IEP, 4/22/11