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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: December 23, 2011
January 30, 2012
February 8, 2012 Actual Record Close Date: March 21, 2012 Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 23, 2011
Attorney — Student
Attorney (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 30, 2012
Attorney — Student
Parents
Parents
, SEIT
For the Department of Education: , Attorney
NAMES AND TITLES OF PERSON WHO APPEARED ON FEBRUARY 8, 2012
Attorney — Student
Parents
Parents
Facilitator (via telephone) — Student
Attorney — DOE
I. PROCEDURAL HISTORY
This hearing was requested on September 16, 2011 by counsel for the student and the parents pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1401, et. seq. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to pay costs associated with the student’s private, home-based program for the 2011/12 school year (Ex. P-A).[1] I was appointed by the DOE to hear this matter on September 17, 2011. In a letter dated October 4, 2011, I advised the parties of their rights and obligations under the New York Education Law and the Regulations of the Commissioner of Education of the State of New York (Ex. IHO-I).
At a hearing held on December 23, 2011, the parents moved for an interim order on pendency (R. 10-13; Exs. IHO-I at 2-3, IHO-IV at 3, P-A at 2). The DOE did not oppose the parents’ application (R. 14). In an Interim Order dated January 4, 2012, I determined that the last agreed upon placement between the DOE and the student’s parents is reflected in an July 7, 2010 Notice of Eligibility for Partial Services and July 7, 2010 individualized education program (“IEP”). Based on the July 7th IEP, I ordered that the student receive the following services, at public expense, effective September 16, 2011 until such time as the proceedings in this matter are completed: thirty-five (35) hours of special education itinerant services (“SEIT”), see 8 NYCRR § 200.16(i)(3)(ii); individual therapy, two (2) times per week for thirty (30) minutes per session and three (3) times per week for sixty (60) minutes per session; individual therapy, three (3) times per week for thirty (30) minutes per session; individual therapy, five (5) times per week for thirty (30) minutes per session; and individual two (2) times per week for thirty (30) minutes per session (R. 11; Exs. IHO-IV at 4, P-B at 1-2, 44). Thereafter, hearings in this matter were held on: January 30, 2012 and February 8, 2012.2 Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
II. FACTUAL BACKGROUND
At the time of the hearing, the student was years old and attending a home-based program (Ex. P-A at 1-2). The student's eligibility for special education and related services as a student with a disability is not in dispute in this hearing (Ex. P-A at 1-2). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).[2]
From the testimony of the student’s mother, I understand that the student met his developmental milestones in his first year, but that (R. 226-227). In July of 2008, the student was evaluated by Dr. , a , who recommended that the student receive - Not Otherwise Specified by Dr. , a (R. 228).
Consistent with Dr. s recommendation, the student began to receive
At a meeting held on July 7, 2010, the DOE’s Committee on (the “CPSE”), see 8 NYCRR § 200.3(a)(2), recommended that the student receive thirty-five (35) hours of SEIT services (twenty-five (25) hours at the (10) hours at home from a (“ ”)
provider). Additionally, the CPSE recommended that the student receive the following related services from a DOE approved provider: , two (2) times per week for thirty (30) minutes per session and three (3) times per week for sixty (60) minutes per session; individual therapy, three (3) times per week for thirty (30) minutes per session; individual , five (5) times per week for thirty (30) minutes per session; and two (2) times per week for thirty (30) minutes per session (R. 11, 234-238; Exs. IHO-IV at 4, P-A at 1-2, P-B at 1-2, 44).
On April 6, 2011, the parents attended a CSE meeting for the student held at . The CSE reportedly determined that the could not be met in any public school program and recommended that the case be deferred to the Central Based Support Team (“CBST”) for consideration of home-schooling (R. 242-249; Ex. P-A at 2-3). The CBST failed to
4
The School was a school-based program, which provided the student with one-to-one SEIT services using an , as well as access to typically developed peers (R. 234-238). develop a home program for the student, the CSE failed to prepare an IEP for the student, and the DOE failed to offer a specific placement for the student for the 2011/12 school year (R. 249; Ex. P-A at 3). Given the absence of a recommended school program, the parents began making arrangements in August and September of 2011 for the provision of a home program to the student, for which reimbursement is now sought (R. 251-253, 256-259; Ex. P-A at 3).
III. POSITIONS OF THE PARTIES
A. The Parent
In light of the DOE’s concession that it failed to offer the student a free appropriate public education, the student is entitled to receive SEIT services and the parents are entitled to reimbursement of costs associated with the as a substitute for parent counseling and training denied them by the DOE. Reimbursement of costs associated with the is also authorized under a Burlington/Carter analysis (R. 10-12, 26-
34; Ex. IHO-VIII).4
B. The DOE
The DOE concedes prong one of the Burlington/Carter standard, i.e., that it failed to offer the student a free appropriate public education for the 2011/2012 school year (R. 25). Reimbursement should be denied, however, because the parents have failed to demonstrate the appropriateness of the for the student. The has no basis in science, psychology or academia. It relies upon a social-based curriculum that fails to address the student’s academic needs and is overly restrictive. The student is not receiving any related services to address deficit areas. Finally, the parents have failed to produce any evidence of the student’s progress as a result of his participation in the (R. 25-26; Ex. IHO-IX).
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General Legal Standards
Two purposes of the IDEA, 20 U.S.C. § 1400-1482, are: (1) to ensure that
5
The Burlington/Carter analysis refers to decisional law interpreting the IDEA which established that a board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, ; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.5 See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. 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. See 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 and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). 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. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).
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. See 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.” See Rowley, 458 U.S. at 203. However, the “IDEA
6
The term “free appropriate public education” means 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
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. 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). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See 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; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). 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), quoting Rowley, 458 U.S. at 192.
The student’s recommended program must also be provided in the least restrictive environment (the “LRE”). See 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); 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. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(I), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c).
B. Special Education Itinerant Teacher
As noted earlier, the DOE has acknowledged that it failed to offer the student a FAPE for the 2011/12 school year (R. 25). Accordingly, I find in the parents’ favor on that issue.
As the student has been receiving thirty-five (35) hours per week of SEIT services by virtue of my January 4, 2012 Interim Order on Pendency, see 20 U.S.C. § 1415(j); 34 C.F.R. § 200.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m), rather than as unilaterally secured by the parents, cf. 20 U.S.C. § 1412(a)(10)(C)(ii); 34 C.F.R. § 300.148, I find that a Burlington/Carter analysis is inapplicable to a determination of whether or not SEIT services should continue through the balance of the 2011/12 school year (Ex. IHO-IV). See M.N. v. New York City Dep’t of Educ. (Region 9), 700 F. Supp. 2d 356, 368-369 (S.D.N.Y. 2010); Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 11-053 (SRO June 23, 2011).
In fashioning an appropriate remedy for the DOE’s denial of a FAPE, I find the that the CPSE’s July 7, 2010 IEP provides persuasive evidence of the programmatic services that the student requires. The student is , . The student appears to . He can read. The student is . The student exhibits . He has increased his tolerance for with the use of . To address these educational needs, the CPSE recommended for the 2010/11 school year that the student receive thirty-five (35) hours of SEIT services (Exs. IHO-IV at 4; P-B at 1, 4, 6-9).
Given the CSE’s failure to offer the student a FAPE for the 2011/12 school year, I find that the student is entitled to receive thirty-five (35) hours per week of SEIT services for the balance of the 2011/12 school year to address his special education needs.
Alternatively, while the DOE argues in its memorandum of law that it should not be required to continue to fund SEIT services for the student because the student’s SEITs are implementing the as directed by the parents and not utilizing any of their independent special education training or experience (Ex. IHO-IX at 12), the precise teaching methodology to be used by a child's teacher is generally a matter to be left to the teacher. See, e.g., Application of the New York City Dep’t of Educ., Appeal No. 08-017 at 7 n.5 (SRO April 18, 2008).
C. Reimbursement for
A board of education may be required to reimburse parents for private educational services obtained for a student, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate and equitable considerations support the parents’ claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 369 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to private schools for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427 (S.D.N.Y. 2011); Connors v. Mills, 34 F. Supp. 2d 795, 805-806 (N.D.N.Y. 1998).
For the reasons set forth below, I find that the parents are not entitled to reimbursement because was not an appropriate program for the student.
1. Public Program
As noted earlier, the DOE conceded the first prong of the Burlington/Carter analysis, thereby acknowledging that it failed to offer the student a FAPE for the 2011/12 school year (R. 25). Accordingly, I find in the parents’ favor on that issue
2. Program
Given my finding that the DOE failed to provide the student with a FAPE during the 2011/2012, I turn to the appropriateness of the parent’s private program. With respect to the second prong for an award of reimbursement, the parent must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65. When determining whether the parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No.
09-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).6
Based on the testimony offered by Ms. Executive Director of the Ms. described the Program as using “dynamic, enthusiastic, play-oriented methods that focus extensively on socialization and rapport building” (Ex. P-Q at ¶ 9). Under the Program’s guidelines, adults join in with a child’s repetitive/ behaviors, rather than attempting to redirect the child or extinguish those behaviors which impede learning (R. 164-170; Ex. P-Q at ¶ 15). Ms. confirmed that she follows the Program’s guidelines and joins in on the student’s repetitive/maladaptive behaviors (R. 84-85).
Ms. explained that under the Program, academics are introduced at a later period, as determined by the parents (R. 162-163). As of February 2012, the student’s mother indicated that academics had not yet been introduced into the student’s home program (R. 308). Nor have the parents secured any of related services made available to the student in my January 4, 2012 Interim Order on Pendency (R. 310; Ex. IHO-IV).
Accordingly, I find that the parents have not met their burden in establishing that the Son-Rise Program is offering the student specifically designed, individualized instruction to meet his unique educational needs. See Gagliardo, 489 F.3d at 115; see also Forest Grove Sch. Dist. v. T.A., 638 F.3d 1234 (9th Cir. 2011) (denying reimbursement to parents who enrolled student in private school for non-educational
7
Even assuming, arguendo, that the student was educationally classified by the CSE on April 6, 2011 as a student with see 8 NYCRR § 200.1(zz)(1), and therefore, entitled to receive parent counseling and training, see 8 NYCRR §§ 200.1(kk), 200.13(d), I do not find that the DOE’s failure to provide the student with that service releases the parents from their burden of demonstrating that the Program was appropriate for the student (Ex. IHO-VIII at 18-19), see Gagliardo, 484 F.3d at 112. reasons).
3. Equitable Considerations
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).
This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision. See, e.g., Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 (1st Cir. 2002).
The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 U.S. App. LEXIS 20967 (2d Cir. Aug. 9, 2006). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
Although I have found that the parents have failed to demonstrate the appropriateness of the Program, I note that the relevant equities would not have otherwise precluded a reimbursement award. While the parents failed to give the DOE prior written notice of their intent to make a unilateral placement of the student in a home program at public expense, see 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1), the DOE has failed to offer any evidence that it gave the parents written notice of their procedural safeguards, see 8 NYCRR § 200.5(f), and indeed, it has conceded that it denied the student a FAPE (R. 25).
V. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) the DOE shall provide the student with thirty-five (35) hours per week of SEIT services for the balance of the 2011/12 school year; and
(2) the parents’ claim for reimbursement of costs associated with the Program is denied. Dated: April 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 ON DECEMBER 23, 2011
PARENT
A Due Process Complaint Notice/Impartial Hearing Request, 9/16/11, 4 pp. B Notice of Eligibility for Partial Services/IEP, 7/7/11, 44 pp.
IMPARTIAL HEARING OFFICER
I Letter to Parties from IHO, 10/4/11, 5 pp. II Confirmation of Extension, 10/18/11, 1 pp.
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 30, 2012
PARENT
C s Journal, 1/12/12, 4 pp. D Anecdotal Data, 2011/2012, 154 pp.
IMPARTIAL HEARING OFFICER
III Confirmation of Extension, 12/23/11, 1 p. IV Interim Order on Pendency, 7 pp. V Ruling on DOE Subpoenas, 3 pp.
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 8, 2012
PARENT
E Program Summary Report, 8/2/11, 6 pp. F Student’s Weekly Schedule, 2011/2012, 1 p. G Score Report, 5/10 - 12/11, 1 p. H Score Results, 12/15/11, 6 pp. I Developmental Assessment, 10/10/11, 15 pp. J Assessment, 1/10/12, 15 pp. K Bi-Weekly Team Agenda, 12/6/11, 2 pp. L Home Instruction Training Costs, 2011/12, 1 p. M Proof-of-Payments, 2011/2012, 15 pp. N Letter to Parents from with Attachments, 3 pp. O Outreach Summary, 1/3/12, 4 pp. P Program Start-Up Manual, 2009, 163 pp. Q Affidavit of , 2/7/12, 9 pp.
DEPARTMENT OF EDUCATION
1 SETSS Log Notes, 9/11 - 12/2011, 25 pp.
IMPARTIAL HEARING OFFICER
VI. Confirmation of Extension, 1/30/12, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
IMPARTIAL HEARING OFFICER
VII. Confirmation of Extension, 2/9/12, 1 p.
VIII. Parents’ Closing Memorandum of Law, 3/12/12, 24 pp.
IX. DOE’s Closing Memorandum of Law, 3/12/12, 14 pp.
X. Confirmation of Extension, 3/27/12, 1 p.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] The parties moved to extend the case compliance date in this matter several times during the course of the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the parties’ need for additional time to present their available witnesses on the extensive issues raised in the parent’s due process complaint justified the delay in the resolution of the matter and was in accordance with the requiremenrts of due process. Accordingly, requests for an extensions of the case compliance date were granted (R. 17-18, 132-134, 373-374; Exs. IHO-II, IHO-III, IHO VI, IHO-VII, IHO-X).
[3] Student with a disability means a student with a disability as defined in section 4401(1) of the Education Law, who has not attained the age of 21 prior to September 1st and who is entitled to attend public schools pursuant to section 3202 of the Education Law and who, because of mental, physical or emotional reasons, has been identified as having a disability and who requires special services and programs approved by the department. 8 NYCRR § 200.1(zz).