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: December 22, 2011

Actual Record Close Date: January 5, 2012

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECMEBER 22, 2011

For the Student:

Advocate

Parent

For the Department of Education:

Director of

Teacher,

Extension of the Compliance Date:

At the conclusion of the impartial hearing the parent advocate requested an extension of the compliance date in order to submit post hearing evidence. The DOE had no objection. I determined that there had been no prior requests for an extension and this request would no impact on the student‟s educational interest because of the current winter break. I was also advised that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted.

FINDINGS OF FACT AND DECISION

On the above listed date, I conducted an Impartial Hearing regarding the due the process complaint (DPC) filed by the parent on October 22, 2011. The complaint alleges, among other things, that the student was denied a Free Appropriate Public Education (“FAPE”) by Department of Education (“DOE”) during the 2010-2011 school year because DOE failed to conduct a Therapy evaluation as recommended by the DOE‟s therapist and failed to pay for the private evaluation and the therapy services that the parent obtained for the student. The complaint also asserts that the student requires a paraprofessional to address the student‟s “off task behavior and attending deficits” (DPC Exhibit 1).

The DOE contends that 1:1 paraprofessional is too restrictive for a student who has intellectual abilities and because the student is making academic progress in the in a general education setting (Teacher testimony).

. is a -year-old boy who is classified as “ ” based on a diagnosis of . The student has and is able . Nevertheless, the student is and has (IEP 4/30/10 Exhibit C). The student currently attends a general education class with related services of (Exhibit C).

The student‟s teacher testified that although the student to , the student is appropriately placed in a general educational setting and that the student is making progress as evidenced by his passing grades. The student‟s teacher also testified that the student does not require the assistance of a paraprofessional in order to access his education and derive an educational benefit in his current program (Teacher testimony).

During the school year of 2009-2010, the students‟ recommended that the parent obtain to assess the students‟ and his (Exhibit F, page 5). The parent requested that the school conduct pay for the evaluation. The school refused (Parent Testimony) .On or about September 13, 2010, the parent obtained a evaluation at t at her own expense (Exhibit H). Thereafter, the parent requested that the DOE reimburse her for the cost of the evaluation and for the that the parent obtained per the recommendation of the (Exhibit I).

The revealed that the student suffered from , and . The evaluation recommended a „ program and estimated that the student required (Exhibit H, page 2). The parent initiated the services over the course the last calendar year and, as of the date of the impartial hearing, the student completed 31 therapy sessions at a cost of $ The evaluation cost $ (DPC).

Statutory Framework:

Congress enacted the IDEA to promote the education of children with disabilities, "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs [and] . . . to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d)(1); see Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 367 (1985). A free appropriate public education "must include 'special education and related services' tailored to meet the unique needs of a particular child, and be 'reasonably calculated to enable the child to receive educational benefits.'" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted).

The key element of the IDEA is the development of an IEP for each handicapped child, which includes "a comprehensive statement of the educational needs of a handicapped child and the specially designed instruction and related services to be employed to meet those needs." Burlington, 471 U.S. at 368. The IEP is collaboratively developed by the parents of the child, educators, and other specialists. 20 U.S.C. § 1414(d)(1)(B); Honig v. Doe, 484 U.S. 305, 311 (1988). New York has set forth regulations to implement the goals of the IDEA, which "appear to track the IDEA closely." Bd. of Educ. v. O'Shea, 353 F. Supp. 2d 449, 454 (S.D.N.Y. 2005); see N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1 et seq. "'In developing a particular child's IEP, a [Committee on Special Education] is required to consider four factors:(1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs." Walczak, 142 F.3d at 123 (citing N.Y. Comp. Codes R. & Regs. tit. 8 § 200.1(kk)(2)(i) (1997)).

If a state fails in its obligation to provide a free appropriate public education to a handicapped child, the parents may enroll the child in a private school and seek retroactive reimbursement for the cost of the private school from the state. Burlington, 471 U.S. at 370; M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 102 (2d Cir. 2000). In determining whether parents are entitled to reimbursement, the Supreme Court has established a two pronged test: (1) was the IEP proposed by the school district inappropriate; (2) was the private placement appropriate to the child's needs. See Burlington, 471 U.S. at 370; see also Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12-13(1993). Moreover, because the authority to grant reimbursement is discretionary, "equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief." Burlington, 471 U.S. at 374; M.C. ex rel. Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000); 20 U.S.C. § 1412(a)(10)(C)(iii)(III).

Paraprofessional:

In this case, I find that the evidence supports a finding that Student does not require the services of a in order to access his education. As indicated above, the student is of and is performing well academically in a general education setting (See Exhibit “N‟). Although the evidence shows that the student is, , the student‟s teacher testified that the student and when redirected, (Teacher testimony). Significantly, special education and related services must be provided in the least restrictive setting consistent with a student's needs" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]). In this case, the evidence presented does not support a finding that the assignment of a was necessary for the student to access his education.

Evaluation and Therapy:

Federal and State regulations provide that a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district (34 C.F.R. § 300.502[a], [b]; 8 NYCRR 200.5[g][1]). Specifically, if a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 C.F.R. § 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv]; see, e.g., R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234 [D. Conn. 2005][finding parental failure to disagree with an evaluation obtained by a public agency defeated parent's claim for IEE at public expense]; A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 549 [D. Conn. 2002][upholding order of reimbursement where district failed to demonstrate that its evaluation was appropriate]). If an impartial hearing officer finds that a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. § 300.502[b][3]; 8 NYCRR 200.5[g][1][v].

Here, the parent requested the evaluation and the DOE failed to either conduct an evaluation of their own and/or initiate an impartial hearing to defend it. As such, the parent is entitled to reimbursement for the cost of the evaluation. Additionally, the evidence shows that the student suffers from more than one and that the therapy services obtained by the parent were necessary to enable the student to access his education. These findings are supported by the progress report submitted by the therapist (Exhibit I) and by the DOE‟s evaluation (Exhibit F). As such, the parent‟s request for reimbursement for the 31 session of therapy services is granted.

ORDERED

The DOE shall reimburse the parent for the case of the at a cost f $ and for 31 sessions of at a cost of $ upon presentation of proof of payment.

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

A Request for hearing 10/26/11, 2 pp.

B Invoice, Undated, 5 pp.

C IEP, 9/19/11, 10 pp.

D IEP, 4/30/10, 13 pp.

E Transcript, 6/21/11, 117 pp.

F Evaluation, 4/23/10, 5 pp.

G Annual Review Plan, 4/1/11, 2 pp.

H Report, Undated, 1 p.

I Progress Report, Undated, 1 p.

J Letter, 10/19/11, 1 p.

K Parent Letter, 10/19/11, 1 p.

M Grade Supply List, Undated, 1 p.

N Report Card, 11/7/11, 1 p.

O Invoice/Payment for Therapy

DEPARTMENT OF EDUCATION

1 Hearing Request, 11/1/11, 2 pp.

2 IEP, 4/30/10, 13 pp.

3 IEP. 9/19/11. 12 pp.

4 Report Card. 12/6/11. 1 p.