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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: September 28, 2012
Actual Record Close Date: October 5, 2012
Hearing Officer: Roslyn Roth, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 28, 2012
Parent (via telephone) — Student
Parent (via telephone) — Student
Chairperson Designee — DOE
Psychologist (via telephone) — DOE
PROCEDURAL BACKGROUND
This hearing was held pursuant to New York Education Law § 4404(1), 20 U.S.C. §1415(f), the Individuals with Disabilities Act (“IDEA”). In accordance with the parent’s request for a hearing dated July 16, 2012, due to a recusal by the assigned hearing officer, on August 22, 2012, I was appointed by the Department of Education, (hereinafter referred to as “DOE”), to hear this matter. On September 28, 2012 a hearing was conducted. The Parent submitted 6 exhibits; entered as Exhibits A through G (the list of exhibits is attached hereto as “Attachment A”). The DOE submitted 1 exhibit, entered as Exhibit 1. Upon consent of the DOE, the Parent submitted an amended due process complaint on September 28, 2012. The parents’ due process complaint requests that the student’s services include the provision of 10 hours of to be provided through a SETSS at the rate of $90.00 per hour. The parents’ amended request included a determination for pendency to allow the student to receive the 10 hours a week of for the extended school year beginning July 1, 2012 without interruption. (See Request for Hearing dated July 16, 2012, Exhibit G) The Parents testified in support of their request. The CSE psychologist testified on behalf of the DOE.
The student is a . The Parents do not dispute the child’s classification or his current program in a state approved school for children. The Parents seek home services. The Parent testified that the student has been receiving 10 hours of SETSS for the last several years. The Parent further testified that any decrease in would have adverse affects on the student. The Parent also testified that the student has become more . (TR 41, 46)
The District witness testified that she was present at the CSE review and that the child has . Additionally, she testified that the records indicate that the child can be . Further, her impression was that he does continue to learn. (TR 23, 25) According to the District’s witness; the determination regarding home services could not be made at the CSE level. (TR 29) The witness also testified that the program recommendation was an appropriate setting. (TR 39)
A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. 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]). 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). Additionally, school districts are not required to "maximize" the potential of students with disabilities. 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'" (Walczak, 142 F.3d at 130 ). 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]).
The Parents’ position that their son requires 10 hours of to benefit from education was . I am persuaded that based on his inability to generalize appropriate behaviors as demonstrated by his inability to safely navigate the community and his significant , he requires home to make meaningful progress. Based on the evidence, I find that the student’s IEP is inadequate for failure to include 10 hours of home .
Accordingly, I find that the IEP is inappropriate due to the failure to recommend home based services and shall be modified on the following terms:
10 hours a week of through a SETSS at the rate of $90.00 per hour from the extended school year beginning July 2012 through June 30, 2013.
Order: The CSE is to reconvene no later than November 2, 2012, to amend the student’s 20122013 school year IEP as follows:
1. 10 hours a week of through a SETSS at the rate of $90.00 per hour for the extended school year beginning July 2012 through June 30, 2013. Dated: October 17, 2012
______________________________
ROSLYN ROTH, ESQ.
Impartial Hearing Officer
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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 Coversheet, Undated, 1 p. B IBR Evaluation, 4/12/12, 5 pp. C Letter, 8/22/12, 1 p. D IEP Waiver Document, 5/1/12, 1 p. E Letter, 8/21/12,[1] p. F Letter G Due Process Complaint, 7/16/12, 2 pp.
DEPARTMENT OF EDUCATION
Footnotes
[1] IEP, 5/8/12, 7 pp.