NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: Hearing Requested By: Parent Date of Hearing: July 11, 2012 Actual Record Close Date: July 18, 2012 Hearing Officer: Esther Mora, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 11, 2012
Psychologist- — Student
Parents
Special Services Manager — DOE
This hearing was requested by the parent on June 15, 2012. The parent seeks a determination of the appropriateness of the school district’s actions. (Exh. A) A prehearing conference was held on July 2, 2012 and a hearing was held on July 11, 2012. A pendency order and an expedited decision were issued previously for Case No. . The purpose of this decision is to address the remaining issues for Case No. School District The school district evaluated the student in 2012 as part of a state mandated threeyear review and to address ongoing . A psychological update evaluation was conducted on March 9, 2012. At the time of the evaluation, the student was enrolled in a Integrated Co-Teaching class but was attending a . (Exh. 2) During the 2012 school year the student attended at least . A manifestation determination review was conducted by the school district. The school district determined that the student’s misconduct was not a manifestation of disability. (Exh. 5)
An IEP conference was held on March 16, 2012 to make appropriate recommendations. The IEP team determined that the student’s disability classification is emotional disturbance. (Exh. 2) By Final Notice of recommendation, dated July 2, 2012, the school district offered to place the student in a special class in a specialized school, with a ratio, at P753K. (Exh. 3)
At the hearing, the school district representative noted that the recommended class would probably not be in session during the summer for a parent visit. Parent
At the hearing, the parent and the student’s independent school psychologist testified and submitted documentary evidence. (Exhs. A-F) The parent contends that the student did not receive appropriate services during the 2012 school year and that the school district failed to evaluate the student on a timely basis despite numerous requests by the parents. The parent and the independent school also contend that the student’s inappropriate behaviors are being and out-patient therapy and as such the student can be maintained in an educationally appropriate setting.
At the parent’s request, an independent was conducted in April 2012. The diagnosis included attention ) and mood disorder. The noted that the student’s current school setting did not seem to be commensurate with her , that the parents were willing to try and that the student was not an immediate risk to herself and/or others at the time. (Exh. D)
By letter dated May 2, 2012, the child’s independent psychiatrist noted that the student was admitted to the on March 20, 2012, with a diagnosis of and . She was being treated with . The treating team recommended special education services commensurate with her limited cognitive ability.
The parent also testified that he intended to visit the site recommended by the school district in the final notice of recommendation dated July 2, 2012.
Findings
As was recently set forth in Appeal No. 12-067, two purposes of the IDEA 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 (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. 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 (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 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at 2 [2d Cir. Aug. 16, 2010]; 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]).
In the instant case, the school district is recommending that the student attend a special class in a specialized school, with a ratio, with counseling as a related service. Having reviewed the entire record, including the evaluations submitted by the parent, I find that the special education services recommended by the school district will provide a free and appropriate education.
Order
1. Unless the parties otherwise agree, the school district’s recommendations, as set forth in the final notice of recommendation dated July 2, 2012, shall be implemented forthwith. (Exh. 3)
2. The parent retains the right to request a new hearing if he visits the recommended site and decides that it is not appropriate.
____________________________
ESTHER MORA, ESQ.
Impartial Hearing Officer EM: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 ON JULY 11, 2012
PARENT
A Hearing Request, 6/13/12, 1 p. B Suspension Documents, Various Dates, 10 pp. C Letter, 5/2/12, 1 p. D Evaluation, 4/11/12, 4 pp. E Awards, 2012, 3 pp. F Letter, 4/13/12, 1 p.
DEPARTMENT OF EDUCATION
1 Chronology, Various Dates, 1 p. 2 IEP, 3/30/12, 16 p. 3 FNR, 7/2/12, 1 p. 4 Appeals Procedure, Undated, 1 p. 5 MDR, 4/23/12, 4 pp.