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: November 21, 2011

Actual Record Close Date: December 31, 2011

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 21, 2011

For the Student:

Advocate

parent

For the Department of Education:

DOE Representative

Assistant Principal (via telephone)

Teacher (via telephone)

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, inter alia. The New York City Department of Education will be referred to as District, the parent as Parent and the child will be referred to as Student. I have reviewed the complaint notice and the record in this matter and conclude that the Parents are right in asserting a Free Appropriate Public Education (FAPE) has not been offered for the 2011-2012 school year

THE PARENT’S POSITION

It is the Parent’s position that the Student has been denied a FAPE. (Ex. A) In the complaint notice, dated 7/8/11, the Parent states that the District developed the Student’s “ IEP (for the 2010-2011 school year) without the necessary data, without the input of the Parent or the Student’s Providers, and without providing the Student with appropriate services. (Ex. A). The District did not follow the mandated timelines and procedures after receiving the Parent’s requests to reopen the Student’s case, on October 25, 2010 and March 7, 2011. The District ignored the concerns of the Parent and the Student’s The District failed to develop an IEP to correctly address the Student’s problems. Specifically, the Parent has claimed a need for Special Education Teacher Support Services (SETSS).

THE DISTRICT’S POSITION

It is the District’s position that the Student is currently receiving a FAPE (Tr. p. 73) based upon a belated meeting of the Committee on Special Education which was conducted three days before the hearing (November 18, 2011) and years after the initial parental complaints. (first issues arose on or about March 20, 2010)

STUDENT HISTORY

The Student is years old and has been diagnosed and classified with . Comprehensive developmental evaluations have been performed and for a detailed history of the Student I refer the reader to Exhibit G. Her current placement is per my pendency order dated November 11, 2011. In essence, the student receives special class education in an setting with related services and special education transportation. (Ex. D) As early as October 2010 issues required the provision of a full-time para to assist with activities of daily living (Ex. F1) While in the Student was in an program and received SETSS services for five hours a week (Ex. A).

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).

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

ANALYSIS

The primary issue in this litigation is whether the District provided the Student with a FAPE for the 2010-2012 school years. In reviewing this, it became abundantly clear that the District did not provide a FAPE. While they may have meant well, they did not have an IEP in place at the beginning of the school year and did not properly evaluate the Student.

The Student’s problems began with the District at the time of her “ ” IEP meeting in March 2010. The Parent asked to continue with the same services the Student had been receiving in preschool ie. SETSS. In response “They said that they’re only allowed to discuss placement and they can’t talk about related services, but [she] would just have to bring my IEP to the new school, and they would discuss any related services that need to be added. So [she] spoke to the teacher about it, [she] showed her the IEP, the one with the SEIT [Special Education Itinerant Teacher]—they were called SEIT hours at the time. And she said, okay, I’ll look into it. She doesn’t get back to me, so [the Parent] asked her again, and then she tells you need to write a letter to open the case, and that’s what [she] did in October..” (Tr. p.p. 236-237, Ex. E). When asked by the Advocate what she was told would happen if she didn’t accept the terms of the IEP, she said: “Just—they only told me that if I didn’t accept it, my daughter might not have a seat in the school.” (Tr. p. 237) She testified that she talked to the Student’s teacher during the second week of school, (in September 2010) and again in early October about the Student’s IEP. In September, the teacher told her she would take care of it, and in October, she told the Parent to write the letter requesting that the case be opened. (Tr. p. 238). The Parent submitted her letter on October 25, 2010 (Ex E). She testified that she repeatedly asked the District when her meeting was to be held, but was told that they were “backlogged” and then that no one would be in the office during the summer. (Tr. p. 239). The meeting was not held until March 2011. The Parent testified that the District did not conduct any evaluations of the Student prior to the March 2, 2011 IEP meeting, and used the evaluations provided by the Parents (Ex. G) (Tr. p. 222). The Parent requested that the Student be given SETSS at the meeting. However, although the IEP did not have the SETSS component she felt was needed, the Parent signed it because she was told it was the only way the Student could have the assistance of a health paraprofessional (Tr. p. 224); in addition, she was told they would discuss the issue of having a SETSS at a meeting the following week (Tr. p. 233). That meeting never happened. On March 7, 2011, the Parent wrote another letter requesting that the Student’s case be reopened, (Ex. J) but the School Assessment Team told her on June 27, 2011 that a meeting could not be held until September 2011 (Ex. A). The meeting was further delayed until November 18, the week of the hearing.

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)

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

I find that from the Parent and the District have been unable to communicate concerning the placement and service options for the Student since the “ ” meeting which took place on March 8, 2010. At that time the Parent’s interactions with the District were pressured and outside the normal IEP procedures. The District has not fulfilled its obligation to properly evaluate and plan for the education of the Student. As a result of this situation I find that a FAPE was denied since September 2010.

THE DECISION

I order the District to provide a two hour a day program at the Student’s school, to provide a SETSS for five one hour sessions at an off-school site to administer an program at a rate not to exceed dollars per hour, five individual sessions of for 45 minutes each week, and four individual sessions of for 45 minutes each week. The CSE should reconvene to determine if additional services are appropriate for the Student for the balance of the 2011-2012 school year.

So Ordered

Dated: January 5, 2012

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

B Evaluation Report, 1/13/10, 14 pp.

E Parent's Letter to Open Case, 10/20/10, 2 pp.

F Letter from Doctor, 10/20/10, 1 p.

G Evaluation Report, 12/9/10, 16 pp.

H Letter from Pediatric Team at , 2/11/11, 1 p.

J Parent's Letter to Open Case, 3/7/11, 2 pp.

K Final Notice of Recommendation Annual Review or Re-Evaluation, 3/2/11, 1 p.