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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: August 30, 2011
November 1, 2011
November 22, 2011 Actual Record Close Date: December 8, 2011 Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 30, 2011
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 1, 2011
Attorney — Student
Parents
CSE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 22, 2011
Attorney — Student
Parents
MD, Pediatrician — Student
, SEIT
For the Department of Education: , CSE Representative
The matter of . came before me on August 30, 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 July 19, 2011. The hearing was convened at the request of the parent, which was received on July 18, 2011. The hearings were held on August 30, 2011; November 1, 2011 and November 22, 2011. The parties made no request to submit post-hearing memorandum. The compliance date is extended. Appended to the record are the lists of persons in attendance and the evidentiary submissions.
Parent has requested this Hearing seeking the continued placement of their child in a program consisting of SEIT (30 hrs) services and related services of services (3x60 1:1) therapy (4x45 ) and therapy (2x60 ) for the 2011 -2012 school year.
BACKGROUND
This student ( ) is currently years old and classified by the NYCDOE CSE as
(Exhibit 'B-1') and designated for a 12 month program. The student has been provided a pendency placement with continued services during the first hearing day of these proceedings. The student is significantly impacted and is in the range of the . Tr. pgs. 40-44. The NYCDOE has acknowledged a current prong one failure of the Burlington/Carter analysis as to the provision of a free and appropriate public education.
THE POSITION OF THE PARTIES
The NYCDOE has acknowledged in the first instance a prong one failure that the student has not been provided with a FAPE (free and appropriate public education).
The Parent requests that the student remain within the designated services as the severe handicapping conditions render the child unready for school at this time. The student suffers from and complications which participation.
THE NYCDOE CASE
The NYCDOE has offered no submissions in this matter and relies upon the IEP (Exhibit B) submitted by the Parent. As aforementioned the NYCDOE acknowledges the failure of FAPE in this matter.
THE PARENT’S CASE
The Parent files this Demand for an Impartial Hearing against the May 20, 2011 IEP. The IEP acknowledges the student is “unable to be formally tested due to the student’s significant in addition to his ”. Exhibit B-1. The student’s conditions require one to one support as his ability to is recently emerging although mastery has not yet been achieved. He is reportedly beginning to communicate by and is becoming familiar with the technology and preliminarily emerging to comprehend one-step commands. The student is often unaware of his surroundings and is easily distracted and variously engages in which . He is by when present with other students (classroom) such as to / and/or when confronted with which . The sleeping is opined by the Parent as his way of . This method of avoidance has disrupted his sleep wake pattern as his sleeping at the earlier day pre-school placement led to his not sleeping during the night.
The previous IEP (CPSE of December 2010) Exhibit C developed a program consisting of SEIT (special education itinerant teacher) one to one 30 hours weekly with therapy (4 x 45 x ) (3 x 60 x ) and (2 x 60 x ) which Parent requests be continued for the 2011-2012 school year. The student’s processing and are . One of the multiple conditions that the student labors from is which inhibits accuracy of testing. The student is reported to be making progress since his removal from the classroom and enrollment in this current proscription of services (SEIT implemented therapy with the aforementioned related services). Exhibit F-1.
Two successive reports from Dr. (Exhibits H and I) clearly emphasize the student as being unready for a classroom environment and continues to recommend individualized instruction for the September 2011 school year.
The recent report (Exhibit L) indicates the student is making progress ( ) increasing in his ability to tolerate a variety of activities engage with clinicians maintaining and closing 4 to 5 circles of communications demonstrating prelinguistic abilities. However it reports that there continues and delays which warrant continued therapy. Similarly the therapist reports (Exhibit M) the student possesses multiple significant in
All in all the various related service personnel report (Exhibit N) similar and concurring opinions that the student is progressing in his development slowly yet steadily with common agreement as to the nature and type of environment necessary for this student to develop. For now each remain convinced that one to one learning be provided to maintain steady growth and development.
FINDING OF FACTS AND CONCLUSIONS OF LAW
Initially it must be noted that the NYCDOE has acknowledged a failure to provide a FAPE.
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. DB. 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. DB. 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.
The parent has successfully demonstrated that the individualized service plan it has put in place (the continuation of the previous pre-school proscription of services aforementioned) continues to be the appropriate placement for this student. The NYCDOE is Ordered to provide a 12 month program for 2011-2012 consisting of SEIT services 30 hours per week ; (4 x 45 x ); (3 x 60 x ) and therapy (2 x 60 x ). Dated: December 14, 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 THE RECORD
PARENT
A Hearing Request, 7/18/11, 8 pp. B IEP, 5/21/11, 15 pp. C CPSE IEP, 12/16/10, 36 pp. D Amended Request for Impartial Hearing, 9/9/11, 8 pp. E SEIT Progress Report, 10/20/11, 7 pp. F Report, 10/20/11, 4 pp. G Letter from Dr. , 3/31/11, 2 pp. H l Update, 4/15/11, 1 p. I Evaluation, 10/8/10 and 10/19/10, 5 pp. J Letter from Dr. , 10/29/10, 2 pp. K Rate Letter, 9/22/11, 1 p. L Progress Report, 10/26/11, 2 pp. M Progress Report, 11/14/11, 1 p. N Progress Report, 11/11/11, 3 pp. O Program Graphs, 24 pp.