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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: October 25, 2011
November 16, 2011
Record Close Date: November 16, 2011
Hearing Officer: Martin J. Kehoe III, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 25, 2011
Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 16, 2011
Parents
(via telephone) — Student
Director of Special Ed — DOE
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 parents as Parents and the student will be referred to as Student.
The Student is years old and has been classified with Impairment (Exs. 1, B, E, and F). A pendency hearing was held on October 25, 2011 to continue with the related services of and related to fluency. Each of these services had been provided for some time offsite, and through providers chosen by the Parents. The funding mechanism has been the Related Service Authorization (“RSA”). In my pendency decision I ordered the District to provide these services retroactively to August 1, 2011. The Parents’ Position
In the complaint notice, (Ex. C) dated August 8, 2011, the Parents asked for the RSAs so the Student could continue her therapy and services. The District’s Position
At the hearing, the District representative stated that the District is denying the Student services, and any other RSA services outside the school setting. (Tr. P. 46) The District argues that the current Individualized Education Program contains a goal for fluency and therefore they can provide the specialized speech services in district. Student History
The Student was initially seen by her current therapist on July 7, 2004, presenting with and difficulties. Her therapy has been directed toward increasing , encouraging , . She has been followed by a ever since and it is recommended that she continue at that center. Her prognosis is good and the ongoing benefit has been noted. (See exs. H, I, J, K, L, M) Likewise has been a long standing related service which has resulted in an educational benefit to the Student.
The District did not provide any witnesses to support their position concerning or . Relative to the latter they relied on the Individualized Education Program (“IEP”) to demonstrate that the fluency goals were appropriate. On the other hand, the Parent brought in an expert witness, the Student’s music therapist, to explain how has benefitted the Student. In her testimony, the stated that the Student has become more willing to speak and express her ideas since beginning . (Tr. P. 17) She related the reception of directly to the educational goals that the Student needs to attain. The provision of music therapy services has been litigated since its inception (see Resolution Agreement - Ex. A; Hearing Officer Decision, Ex. D). The provision of specialized speech therapy has been conceded by the District until the most recent IEP (Ex. B) wherein the District has created a single fluency goal to be provided by a District speech therapist at the District home school.
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 IEP (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 “. . .
benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26). 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)
ANALYSIS
The primary issue in this litigation is whether the District provided the Student with a FAPE for the 20011-2012 school year. Specifically whether the District erred in excluding music therapy services and whether the fluency goal for the speech and language component of the Student’s program was appropriate.
Analysis
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)
There are two questions: One, whether the Student can benefit from the delivery of the speech services in-District? Two, in this case are music therapy services an appropriate related service such that they will enable the Student to benefit from her education. In answer to each question I find that the District did not carry its burden. “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. 927; 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 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
There is no dispute that the Student would benefit from instruction in special education, or that the related services are warranted. Here however the District failed to call a witness or demonstrate in any meaningful way that the CSE decision to cut was anything but arbitrary. The Parents however, armed with the reports from specialists have demonstrated that the continuation of outside provides a needed educational benefit to the Student and that the existing related service provider for is appropriate.
Order
I hereby direct the District to issue RSAs for one time per week for 45 minutes and, for specialized minute sessions going forward. I also direct the District to pay for said services for the months of June , July and August 20011 to the extent that the Parents produce properly receipted bills for payment of such services and further that the payments do not duplicate payments made under the pendency order herein whereby retroactive issuance of RSA were ordered from August 1, 2011.
So Ordered Dated November 30, 2011
_________________________________
MARTIN J. KEHOE III, ESQ.
Impartial Hearing Officer
MK:dl
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 ON OCTOBER 25, 2011
PARENT
A Resolution Agreement, 6/1/10, 2 pp. B IEP, 5/20/11, 14 pp. C Complaint Notice, 8/1/11,[1] p. D IHO Decision # 123350, 11/17/09, 14 pp. E IEP, 6/24/09, 12 pp. F IEP, 5/16/08, 12 pp.
DEPARTMENT OF EDUCATION
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
[1] IEP, 4/15/10, 14 pp.