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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: February 28, 2012
March 21, 2012
April 20, 2012
June 1, 2012
July 6, 2012
July 9, 2012
July 13, 2012
August 8, 2012
September 12, 2012
Actual Record Close Date: November 24, 2012
Hearing Officer: Edgar De Leon, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 28, 2012
Attorney — Student
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2012
Attorney — Student
Attorney — Student
Father — Student
Attorney — DOE
School Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 20, 2012
Attorney — Student
Attorney — Student
Father — Student
Attorney — DOE
School Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 1, 2012
Attorney — Student
Father — Student
Attorney — DOE
Director of Placement (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 6, 2012
Attorney — Student
Father — Student
Director — Student
Attorney — DOE
Principal (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 9, 2012
Attorney — Student
Father — Student
Clinical Coordinator (via telephone) — Student
Attorney — DOE
Teacher (T-514-22) (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 13, 2012
Attorney — Student
Father — Student
(A AND T), Teacher — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 8, 2012
Attorney — Student
Father — Student
(A and T), Teacher — Student
SHULAMIT NEUMAN, Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 12, 2012
Attorney — Student
Father — Student
Attorney — DOE
Principal (via telephone) — DOE
On December 28, 2011, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a and the New York City Department of Education (“DOE”) - District: , regarding the student’s special education program. I was appointed after the recusal of at least one other IHO. After adjournments were granted on consent or for good cause, the impartial hearing was held on February 28, 2012, March 21, 2012, April 20, 2012, June 1, 2012, July 6, 2012, July 9, 2012, July 13, 2012, August 8, 2012 and September 12, 2012. The parties opted to submit written closing statements which were due October 12, 2012. (T-811-2) The DOE’s closing statement was received on or about October 12, 2012. The Parent’s closing statement was received on or about October 9, 2012. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.
BACKGROUND
In this case, the Parent alleges that the DOE failed to offer the student a “free and appropriate public education” (“FAPE”) for the 2011-2012 “12-month” school year. (See Parent’s Due Process Complaint - “DPC”) Specifically, the Parent challenges the student’s Individualized Education Program (“IEP”) dated February 28, 2011 as procedurally and substantively flawed. (Id.) Accordingly, the Parent unilaterally placed the student at his current private school which he has attended for three years. (Id.) The student is classified as .” (Id.) At the hearing, the Parent seeks the following relief:
(a) tuition reimbursement and/or “direct payment” to the student’s private school for the 12-month 2011-2012 school year; and
(b) appropriate round-trip transportation to and from the student’s home to his private school for the duration of the 12-month 2011-2012 school year; and
(c) recovery, reimbursement and/or payment of the Parent’s reasonable attorney(s)’ fees and any and all related costs, fees and disbursements; and
(d) such further relief as is deemed just and proper.
THE DOE’S CASE
The DOE does not dispute that the student qualifies as a student with a disability under the IDEA. (T-64) The agency argues that is complied with all of the IDEA’s procedural requirements in developing the student’s program for the 2011-2012 12month school year. (T-65-6) The Committee on special Education (“CSE”) met on or about February 28, 2011 and took into account firsthand knowledge of the student’s current academic, , based on the student’s most up to date reports from his private school regarding the student’s progress thereat, as well as observations conducted by the DOE in the student’s classroom environment. (T-66) The CSE recommended that the student be placed in a special class in a special school with a staffing ratio and related services. (Id.) The recommended DOE placement would have been able to implement the program. (T-67)
The DOE further argues that the student’s current private school is overly restrictive and does not meet all of his individualized special education needs. (T-67-8) The Parent never demonstrated an actual openness to placing the student in the DOE program. (T-68) The DOE need only have an IEP in effect at the beginning of each school year, which in this case was July of 2011. (T-69) The agency is under no obligation to establish the appropriateness of a placement or even whether the school offered would continue to be in compliance with an IEP’s mandates after the beginning of a school year, especially where a parent had rejected a placement well before the placement would ever come to fruition. (T-70) The Parent in this case rejected the DOE’s offer before the start of the school year and the agency was no longer obligated to keep the seat open for the student. (Id.) The DOE does not dispute the student’s requirement for a 12-month school year. (T-71) The student was offered a placement in July that it knew would have changed in September. (Id.) However, it was anticipated that the recommended program/placement would continue for the entire school year. (T72)
The DOE called (3) witnesses to testify on its behalf and submitted (17) documents into evidence. The sum, substance and relevant part of the evidence on behalf of the DOE is included in the decision below.
THE PARENT’S CASE
The Parent argues that the DOE offered placement was not appropriate for the student. (T-73) The Parent was involved in every aspect of the student’s 2011-2012 school year. (Id.) The Parent attended the CSE meeting which was a “pro forma proceeding.” (Id.) The CSE’s decision at the meeting was predetermined. (Id.) One of the reports relied on by the CSE did not accurately describe the student. (T-73-4) The report stated that the student was not an one of the overriding factors that need to be considered in the student’s education. (T-74)
The Parent further alleges that after the CSE meeting, the Parent made numerous inquiries via facsimiles and visited the recommended DOE school. (Id.) One of the problems with the DOE recommendation is that it really amounted to two different classes. (T-75) The DOE teacher, location and students would have changed from the first class on July 1st, to the second class on September 1st. (T-76) The student was attending his current private school prior to this school year. (T-77)
The Parent called (4) witnesses to testify on her behalf and submitted (28) documents into evidence. The sum, substance and relevant part of the evidence on behalf of the Parent is included in the decision below.
FINDINGS OF FACTS AND DECISION
Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) 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. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])
A FAPE is offered to a student when (a) the DOE 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 and 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. (See 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] and 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. (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]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and 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])
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 does not itself articulate any specific level of educational benefits that must be provided through an IEP." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and 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." (See Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted] and Grim, 346 F.3d at 379) Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and 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.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“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; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])
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. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)
The DOE 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] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 37071; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)
The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)
A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and 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 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02014 and 01-105) 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 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]) "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….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) 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 parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).
The IDEA allows that tuition 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 child from public school, or by written notice ten 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] and 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 tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See 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]); SRO No. 07-133; 07120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)
The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition 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, fail to engage with potential placements offered 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]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)
In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049)
As stated above, a FAPE is offered to a student when (a) the DOE 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 and Cerra, supra) Accordingly, I first turn to the question of whether the student’s CSE team was duly composed on February 28, 2011.
Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.
Here, the record evidences that the student’s CSE team on February 28, 2011 was composed of the student’s father and mother, the district representative/special education teacher, a school psychologist, the student’s private school social worker, a parent member, the student’s private school teacher and another social worker. (T-90-1 and D3)
The Parent argues that the CSE was duly composed because the special education teacher/district representative was not the student’s teacher, nor would have been during the 2011-2012 school year. (T-178-81 and D-16) The DOE “special education teacher” also served as the “district representative” on the student’s CSE team. (T-177) The DOE special education teacher is “certified” for grades kindergarten through “12” and has worked for the DOE for approximately (17) years. (T-178) However, she not is believed to have ever taught in a “ ” setting, but has “observed” student’s in that setting. (T-179)
The IDEA requires that an IEP be developed by a group of individuals including at least one special education teacher, or where appropriate, at least one special education provider of such student. (See 20 U.S.C. § 1414[d][1][B][iii], 34 C.F.R. § 300.321[a], 8 NYCRR 200.3[a][1][iii] and IEP Team, 71 Fed. Reg. 46670 [Aug. 14, 2006]) The hearing record reveals that the DOE’s special education teacher, who participated in the February 28,2011 CSE meeting, was not and would not be the student’s special education teacher. What’s more, she never taught a “ ” class, such as the one recommended for the student. (T-179 and D-3) Accordingly, the DOE’s special education teacher was not a person who was or would be responsible for implementing the student's IEP. Instead, the February 28, 2011 IEP indicates that a teacher and a social worker from the student’s private school participated in the CSE meeting, filling the role of the regular education teacher. (T-90-1 and D-3)
Based on the hearing record, I find that no special education teacher or provider of the student attended the February 28, 2011 CSE meeting. (See 20 U.S.C. § 1414 [d][1][B][iii], 34 C.F.R § 300.321[a] and 8 NYCRR 200.3[a][1][iii]) Therefore, the February 28, 2011 CSE team was not properly constituted. However, IHO’s and SRO’s are constrained by federal and State regulations from finding that a FAPE is denied by a procedural violation unless the procedural inadequacy impeded the student's right to a FAPE, significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a FAPE, or 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], A.C., 553 F.3d at 172, E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek, 471 F. Supp. 2d at 419)
Notwithstanding that the February 28, 2011 CSE team was not properly constituted, I find that the hearing record does not demonstrate that the lack of a special education teacher of the student impeded the student's right to a FAPE, significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE, or caused a deprivation of educational benefits. In the first instance, the student’s father and mother did attend the CSE meeting on February 28, 2011. (D-3) Thereat, they had the support and input of the student’s private school teacher and social worker. (Id.) The DOE school psychologist testified that the Parent asked questions about the DOE’s psycho-educational evaluation at the meeting. (T-140) She further testified that even after going over the evaluation for an hour, the Parent indicated that he did not fully understand it. (T-109 and 141-2) The record includes substantive and specific testimony about how the evaluation was explained to the Parent. (T-109-39 and 766) The Parent raised his concern over the student’s anxiety; it was discussed by the student’s private school teacher at the CSE meeting and it was noted on the student’s IEP. (T-109, 153-4 and D-3) Indeed, the student’s private school teacher conceded that she was allowed to comment on whether the student’s goals were appropriate or not. (T-701) She also was allowed to give input regarding the student’s program recommendations. (T-701-2) Finally, she was allowed to discuss the student’s anxiety with the CSE and to provide the team with specific examples of the same. (T696-7) She told the CSE team that the student’s behavior did not seriously interfere with his instruction. (T-698-9)
The student’s related service goals were originally written by his individual private school providers and clinicians and adopted by the CSE team. (T-183) The Parent’s concern over the student’s reading was also addressed by the CSE team and in the resulting IEP. (T-175, 182 and D-3) The Parent conceded that he voiced his concerns over the DOE psycho-educational evaluation not being “accurate” at the meeting. (T-731) He also conceded that there was a lot of talk about the student’s test results at the meeting. (T-732)
The record does not evidence that the procedural inadequacy concerning the DOE’s special education teacher, impeded the student’s right to a FAPE, significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or caused a deprivation of educational benefits. Therefore, I find that the failure to include a special education teacher of the student at the February 28, 2011 CSE meeting did not rise to the level of a denial of a FAPE. (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], SRO No. 08-122 and 08-064)
I next turn to the question of whether the student’s February 28, 2011 IEP reflects the results of his evaluations and addressed the needs identified therein. As stated above, 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. (supra)
Many of the student’s private school reports were received in evidence. (P-H
(2010-2011), P-I (05/2011), P-J (12/2010), P-K (01/2011), P-L (05/2010), P-S (12/2011)
and D-11 (12/2010)) A Classroom Observation dated November 8, 2010 and another dated November 12, 2008 was also received in evidence. (D-9 and D-15) However, the only “evaluation” submitted and received in evidence is the student’s Psycho-Educational Evaluation, conducted by the DOE and dated November 8, 2010. (D-10)
The DOE Psycho-Educational Evaluation was conducted by a licensed psychologist. (Id.) The psychologist conducted (8) test concerning the evaluation: the Stanford-Binet Intelligence Scales 5th Edition (SB5), the Vineland Adaptive Behavior Scales 2nd Edition; Survey Interview Form, the Woodcook-Johnson Tests of Academic Achievements-III (W-J III), the ASIEP-3 Autism Behavior Checklist Form, the Beery/VMI, a behavioral observation/clinical interview and mental status examination and a Parent interview. (Id.) The evaluation notes that a “review of records” was not available. (Id.)
The DOE evaluation notes that the student has a history of developmental delays, is currently in a special class in a specialized school, is classified as having “autism” and has difficulty attending and remaining focused. (Id.) The student’s cognitive functioning as per the Stanford-Binet test is on the whole “ .” (Id.) The student’s academic skills are said to be in (grade equivalent = , SS = , percentile). (Id.) The evaluation specifically states that “There is no evidence of .” (Id.) The evaluation concludes as follows:
[student’s name] is diagnosed with and may display or evidence various symptoms and behaviors which may interfere with overall adjustment and academic functioning including issues with ,
[student’s name] has several strengths which may be useful he is friendly, cooperative, able to make his needs known, has some awareness of self, and of events occurring within immediate environment, is fair in health, and has a supportive family.
Recommendations to be made by IEP team. (Id.)
The Parent asserts that the Evaluation relied on by the DOE is deficient and unreliable. (T-398-404) The author of the report was not called as a witness by either side. The private school director, testifying on behalf of the Parent, stated that the DOE psychologist was very disorganized and conducted the evaluation within an hour when each one of the test she administered could have taken an hour on their own. (T-403-4) She further testified that the evaluation’s tests were not “…conducted appropriately for the nature of the evaluation. (T-401) The private school director also said that the DOE psychologist would ask “leading questions” of the student. (T-403)
Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent that may assist in determining, among other things the content of the student's IEP. (See 20 U.S.C. § 1414[b][2][A], 34 CFR 300.304[b][1][ii], S.F. v. New York City Dep't of Educ., 2011 WL 5419847, at *12 [S.D.N.Y. Nov. 9, 2011] and Letter to Clarke, 48 IDELR 77 [OSEP 2007]) In particular, the agency must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. (See 20 U.S.C. § 1414[b][2][C], 34 CFR 300.304[b][3] and 8 NYCRR 200.4[b][6][x]) The DOE must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. (See 20 U.S.C. § 1414[b][3][B], 34 CFR 300.304[c][4] and 8 NYCRR 200.4[b][6][vii]) An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified. (See 34 CFR300.304[c][6], 8 NYCRR 200.4[b][6][ix] and SRO No. 07-018)
Here, the evaluation relied on by the DOE used (7) assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the Parent. (D-10) The evaluation assessed the student’s , his , his , his and his . (Id.) The evaluation properly notes the student’s diagnosis of “ ” and identifies the various symptoms and behaviors that may manifest as a result of his diagnosis. (Id.) The private school director testified that she had one of her “teaching assistants” sit in on the DOE’s psychologist evaluation of the student. (T399-403) She also stated that she knows that each one of the tests administered could be an hour on its own because they have the protocols for these evaluations at the private school and have the psychologists who perform these evaluations. (T-404) There is nothing in the record sufficient to support a finding that the “teaching assistant” is qualified to assess the work of a licensed psychologist. What’s more, the protocols referenced by the private school director were not submitted in evidence and neither did any of the private school psychologists, who have performed these tests, testify at this hearing. Based on the record, I find the DOE Psycho-Educational Evaluation sufficiently comprehensive to identify all of the student's special education and related services needs. (Id. and supra)
The CSE also reviewed the student’s classroom observation dated November 8, 2010, which was conducted at the student’s private school and noted that he was in a class with ratio. (T-92-5 and D-9) The student was “ ” to the reading of a story. (Id.) When asked if he wanted an easy or hard pattern to copy, the student responded “hard” and successfully copied a difficult palm tree pattern. (Id.)
The CSE also reviewed the student’s private school progress report dated December of 2010. (T-96 and D-11) That report identifies “floor time” goals, academic goals, math goals, “OT” goals and art therapy goals for the student. (D-11) The student therein is said to be “generally regulated and engaged throughout our sessions” when referencing his art therapy sessions. (Id.)
The private school progress report states that the student transitions from activity to activity within the classroom as well as from the classroom with ease. (Id.) Overall, the student is said to present with a state. (Id.) Co-regulation strategies used with the student include using a soothing tone of voice and maintaining close proximity to the student to help him . (Id.) The private school focuses the student’s word recognition program on sight words that are . (Id.) To build the student’s fluency skills, the student’s classroom program includes lots of repeated reading. (Id.) The student is currently working on place value (tens and ones places) and adding and subtracting double-digit numbers, place value within the context of money, making estimates with manipulative groups and on his conception of the passage of time. (Id.) He is also working on transitioning throughout the school building independently. (Id.) The student is said to transition well to “ ” and receives brushing and joint compression daily. (Id.) He participates in a vestibular-visual protocol to improve his processing. (Id.) He response well to strong input. (Id.) The student participates in and may require minimal cueing to visually key into aspects of in his environment. (id.) is used to provide support and scaffolding to encourage peer interactions. (Id.)
The CSE also reviewed an Addendum to the December 2010 private school progress report. (T-97 and D-12) The private school progress report and addendum do not state that the student is “ ”, although the private school director said they do in terms of “dysregulation.” (T-427 and D-11)
The CSE reviewed a Classroom Observation dated November 12, 2008. (T-92 and D-15) The observation occurred during snack time with (7) students and (5) staff present. (D-15) The report notes that the student did but was able transportation. (Id.) He also required prompting to describe a picture to his . (Id.)
The IEP produced on behalf of the student on February 28, 2011 classifies the student as having “autism” and recommends placement in a “special class in a specialized school with related services” and a “ ” staffing ratio. (D-3) The IEP recommends “Adaptive Phys. Ed.” for the student. (Id.) The student’s related services were increased from (30) minutes to
(40) minutes per session and the student was assigned a “transitional paraprofessional” full time. (Id.) The February 28, 2011 IEP describes the student’s “present performance” as follows:
[student’s name] is an . He is diagnosed with . Current evaluation indicates that his overall cognitive functioning falls in the (Stanford-Binet V,
11-8-2010) Academically, current teacher reports that he has a working sight vocabulary of approximate and can read from familiar texts. He can answer fact based questions with the level reading materials and inferential questions at kindergarten level materials. He in the correct order from a story with picture clues. In math, he understands the concepts of He can identify some key words for compare size and weight. He understands the concepts such as “in front, next to, left, right” and the sequential order of “first, second, third, last.” He is working on place value and single/double digit addition and subtraction with regrouping. He started recognizing directions of east, west, south and north. He benefits from observing an activity before joining. (Id.)
In terms of “academic management needs”, his February 28, 2011 IEP states that the student needs “redirection; repetition; visual and verbal cues, sensory input and breaks; verbal praise; preview of materials.” (Id.) In terms of the student’s “ performance”, the IEP notes that the student’s private school progress report indicates that he presents with a “…generally calm but state.” (Id.) The IEP further states that “… within the classroom is noted, he . This may be . Parents note . A dated 11-8-2010 indicates that he was easily distracted but his were not significantly decreased.” (Id. - emphasis added)
The IEP states that the student’s does not . (Id.) The student is said to continue to need in order to maintain a regulated state and that the student benefits from social engagement through physical activities. (Id.) Taken almost word for word from the student’s private school progress report, the IEP states “Co-regulation strategies such as using a soothing tone of voice and maintaining close proximity…” are to be used to help the student re-regulate. (D-3 and D-11) Also taken almost word for word from the student’s private school progress report, the IEP states that the student may require minimal cueing to visually key into aspects of navigation and orientation in his environment. (Id.)
The student’s private school progress report states that the student is able to read approximately ( . (D-11) The private school report states that based on the student’s assessments, they focused the student’s on sight words that are and meaningful as well as words taken directly from the texts that they are focusing in class. (Id.) Consistent with that goal, the student’s IEP sets a short term objective of having the student learn (50) new sight words from the materials read in class., measured by teacher observations and teacher-made tests. (D-3) The private school report states that the student has of single-digit numbers and is currently working on place value (tens and ones places) and double-digit numbers. (D-11) The IEP sets a short term objective to have the student (2) to (3) digit numbers with regrouping with (D-3) The private school report states that the student is currently working on place value within the context of money and the IEP set a short term objective for the student to understand place value within monetary context to $1 with accuracy. (D-11 and D-3) The private school report states that the student is currently working on the passage of time and the IEP sets a short term objective for him to The student’s private school report also states that the student participates in a “ protocol” and that he responds to strong input, such as self-generated bouncing on a physioball, therapeutic yoga with peers or bicycle riding. (D-11) His IEP short term objective states that following input, the student using visual prompts with minimal support in 4/5 opportunities. (D-3) The private school report states that the student can sustain with staff members and 10-20 with peers and his IEP set a goal of 45 to 50 circles with adults and 10-15 interactions with a . (D-11 and D-3) Finally, the private school report states he needs a break ” and the IEP requires that the student receive “breaks.” (Id.)
The IEP requires that the student discuss his frustrations with the counselor to uncover solutions rather than abandoning a task during of opportunities. (D-3) The IEP further notes that the student continues to require the structure and support of a 12-month school year, requires a smaller student to teacher ratio than the “ ” and “ ” ratios that were considered and support as he shifts from his current private school to a public school setting. (Id.) The IEP gives the student related services as follows:
therapy, separate location, 4 x 40 x 1
therapy, separate location, 1 x 40 x 2
, separate location, 3 x 40 x 1
, separate location, 2 x 40 x 2
, separate location, 2 x 40 x 2
transitional paraprofessional, separate location, “1.0 FTE”
(Id.)
The IEP also states that the student will participate in “Alternate Assessment” with teacher observation, teacher-made materials, class participation and a student portfolio used to further assess him. (Id.) The parties agree that the student is properly classified on the IEP as having “ ” (T-713)
The Parent disagreed with the with the DOE evaluation and questioned its accuracy and reliability. (T-140-5 and 729-38) However, there was credible testimony from the DOE school psychologist that the Parent was given his due process rights and was advised of his right to obtain an independent evaluation at costs to the DOE. (T-100-2, 772-3 and D-4) Nevertheless, an independent evaluation was not submitted in evidence on behalf of the Parent and the private school did not conduct an independent evaluation of the student. (T-
438) What’s more, having found the DOE evaluation sufficiently comprehensive to identify all of the student's special education and related services needs and I do not agree with the Parent’s assertion that the student’s IEP goals are flawed because they were based on the DOE evaluation. (T-398-405 and supra)
There is evidence in the record that the “12-month” student would have been placed in one DOE one class during the summer and another DOE class during the winter. T-456-7 and 478-81) The Parent asserts that the student’s such a placement inappropriate. (T-765-
6) Additionally, there was conflicting testimony from the DOE Placement Officer and the DOE Assistant Principal as to which class the student would have been placed in. (T-271-2, 457-8, 460 and 463)
The Regulations of the Commissioner of Education define both “change in program” and “change in placement” (see 8 NYCRR 200.1). A change in program means a “change in any one of the components of the individualized education program of a student as described in section 200.4(d)(2) of this Part" (8 NYCRR 200.1[g]). State regulations provide that a “change in placement” means a transfer of a student to or from a public school, BOCES or schools enumerated in article 81, 85, 87, 88 or 89 of the Education Law or graduation from high school with a local high school or Regents diploma. For purposes of removal of a student with a disability from the student's current educational placement under Education Law section 3214, change of placement is defined in Part 201 of this Title.
(8 NYCRR 200.1[h]).
After a review of these relevant sections, I am not persuaded that the difference between the two DOE classes and/or teachers constitute a “change in program” or “change in placement. (See 8 NYCRR 200.1[g],[h],[qq],[ww]; 8 NYCRR 200.4[d][2], 200.4[d][2][iv]). Section 200.1[g] requires a review of section 200.4(d)(2) to determine whether respondent’s modifications changed any component of the student’s IEP (see 8 NYCRR 200.1[g]). Section 200.4(d)(2)(iv) sets forth what appears to be the most relevant items at issue in this case - class size, supplementary aids and services, and program modifications or supports for school personnel (see 8 NYCRR 200.4[d][2][iv])
With respect to class size, the student’s “ ” student to staff ratio class, as set forth in his February 28, 2011 IEPs did not change. (D-3) Moreover, the DOE Assistant Principal’s testimony indicates that there would have been no changes concerning “supplementary aids and services” or “program modifications or supports for school personnel” that were inconsistent with the student’s IEP in either class. (T-270-2, 457-65, see also 8 NYCRR 200.1[g],[h],[qq],[ww] and 8 NYCRR 200.4[d][2],[d][2][iv]) Without evidence to the contrary, I cannot conclude that a “change in program” has occurred under section 200.1[g].
Similarly, I do not find that a “change in placement” has occurred under section 200.1[h], since there is no evidence that the student has transferred “to or from a public school, BOCES” or any other school delineated in this section (see 8 NYCRR 200.1[h]). In Letter to Fisher, the United States Department of Education Office of Special Education Programs (OSEP) specifically addressed the question of what constitutes a change in educational placement and opined that consideration should be given to whether a change in educational placement has occurred on a case-by-case basis, as it is a very fact specific inquiry. (See Letter to Fisher, 21 IDELR 992 [OSEP 1994]) OSEP concluded that whether a change in educational placement has occurred turns on “whether the proposed change would substantially or materially alter the child’s educational program.” (Id.). OSEP set forth the following factors to be considered in determining whether a change in educational placement has occurred:
(1) whether the educational program set out in the child’s IEP has been revised;
(2) whether the child will be able to be educated with nondisabled children to the same extent;
(3) whether the child will have the same opportunities to participate in nonacademic and extracurricular services; and,
(4) whether the new placement option is the same option on the continuum of alternative placements.
OSEP established that if this inquiry leads to the conclusion that a substantial or material change in the child’s educational program had occurred, the public agency must provide written prior notice. (See Letter to Fisher, 21 IDELR 992 [OSEP 1994]).
More recently, the New York Court of Appeals discussed what constitutes a change in educational placement in "In the Matter of Beau II, 95 N.Y.2d 234, 239 [2000]", and relied upon Letter to Fisher, in part, to make a determination regarding whether a petition seeking to have a disabled child adjudicated as a person in need of supervision (PINS) constituted a change in the student’s educational placement. (See In the Matter of Beau II, 95 N.Y.2d 234, 239-41 [2000]) In that case, the court held that a student with a disability is entitled to the procedural safeguards afforded by the IDEA, but only if the school has proposed a modification that is “likely to affect the child’s learning experience in some significant way.” (See In the Matter of Beau II, 95 N.Y.2d 234, 239-40 [2000] [citing Dong v. Board of Educ., 197 F.3d 793, 801 [6th Cir. 1999]; see also Concerned Parents and Citizens for the Continuing Educ. at Malcom X (P.S. 79) v. New York City Bd. of Educ., 629 F.2d 751 2d [1980])
For all of the reasons stated above, I do not find that the student’s placement in either “Ms. ” class at the same DOE school constitutes a denial of FAPE for the student’s 20112012 school year. It is important to note that the record also shows that the DOE had a seat available for the student at the recommended DOE school and could have implemented his IEP. (T-270-2, 461 and D-3 and D-5)
The Parent further argues that the student’s IEP goals were copied from his private school reports and therefore could only be implemented through the use of the “DIR-based methodology” which the private school uses. (T-406-7) The DOE recommended school uses only the “TEACCH” and “ABA” methodology as needed. (T-165-7 and 406-7)
Generally, a CSE is not required to specify methodology on an IEP, and the precise teaching methodology to be used by a student's teacher is usually a matter to be left to the teacher. (See Rowley, 458 U.S. at 204, M.M. v. Sch. Bd. of Miami-Dade County, 437 F.3d 1085, 1102 [11th Cir. 2006], Lachman v. Illinois State Bd. of Educ., 852 F.2d 290, 297 [7th Cir. 1988] and SRO Nos.: 11-058, 11-007, 10-056, 08-075, 07065, 07-054, 07-052, 06-022, 05-053, 94-26 and 93-46)
In this case, the evidence hearing record does not support the conclusion that the student could only learn with a specific methodology. Additionally, the DOE Assistant Principal testified that she would have placed the student with “Ms ” who could implement the student’s IEP. (T-461) She unequivocally stated that her school would have implemented the student’s IEP. (T-468-9) The hearing record indicates that the DOE staff was able to tailor their use of methodology according to the students' needs. (T-461-9) Therefore, I find that the fact that the assigned school would have used the TEACCH and ABA methodologies instead of DIR did not deprive .the student of a FAPE. The hearing record in its entirety does not support the conclusion that had the student attended the assigned school, the DOE would have deviated from substantial or significant provisions of the student's IEP in a material way and thereby precluded the student from the opportunity to receive educational benefits. (See Rowley, 458 U.S. at 206-07, A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 [2d Cir. March 23, 2010], Cerra, 427 F.3d at 192 [2d Cir. 2005], Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811 [9th Cir. 2007], Houston Independent School District v. Bobby R., 200 F.3d 341 at 349 [5th Cir. 2000] and Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007])
Contrary to the Parent’s assertion, the student’s February 28, 2011 does provide for the student to receive transitional support services by the providing the student with a fulltime paraprofessional. (D-3)
The Parent also argues that the student has been denied a FAPE because his IEP does not properly provide for “parent training” as a related service. State regulations require that an IEP indicate the extent to which parent training will be provided to parents, when appropriate. (8 NYCRR 200.4[d][2][v][b][5]) State regulations further provide for the provision of parent counseling and training for the purpose of enabling parents of students with to perform appropriate follow-up intervention activities at home. (8 NYCRR 200.13[d]) Under State regulations, the definition of “related services” includes parent counseling and training. (8 NYCRR 200.1[qq]) and training is defined as “assisting parents in understanding the special needs of their child; providing parents with information about ; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's individualized education program.” (8 NYCRR 200.1[kk] and 34 CFR 300.34[c][8])
However, Courts have held that a failure to include parent counseling and training on an IEP does not constitute a denial of a FAPE where a district provided “comprehensive parent training component” that satisfied the requirements of the State regulation (M.W. v. New York City Dep't of Educ., 2012 WL 2149549, at *13 [E.D.N.Y. June 13, 2012], C.F. v. New York City Dep't of Educ., 2011 WL 5130101, at *10 [S.D.N.Y. Oct. 28, 2011], M.N. v. New York City Dep't of Educ., 700 F. Supp. 2d 356, 368 [S.D.N.Y. Mar. 25, 2010]), or where the district was not unwilling to provide such services at a later date. (See M.M. v. New York City Dep't of Educ., 583 F. Supp. 2d 498, 509 [S.D.N.Y.2008], but c.f., P.K. v. New York City Dep't of Educ., 2011 WL 3625088, at *9 [E.D.N.Y. Mar. 2011], adopted at, 2011 WL 3625317 [E.D.N.Y. Aug. 15, 2011] and R.K. v. New York City Dep't of Educ., 2011 WL 1131492, at *21 [E.D.N.Y. Jan. 21, 2011], adopted at, 2011 WL 1131522 [E.D.N.Y. Mar. 28, 2011])
Recently, the Second Circuit explained that “because school districts are required by State regulation to provide , they remain accountable for their failure to do so no matter the contents of the IEP. Parents can file a complaint at any time if they feel they are not receiving this service.” (See R.E., 2012 WL 4125833) The Court further explained that "[t]hough the failure to include in the IEP may, in some cases (particularly when aggregated with other violations), result in a denial of a FAPE, in the ordinary case that failure, standing alone, is not sufficient to warrant reimbursement.” (Id.)
Here, the DOE Assistant Principal testified that that the assigned public school does provide parent training. (T-450-5 and 803-5) Parent training was discussed was also discussed at the IEP meeting. (D-101-4 and D-4) What’s more, the Parent has received parent training at the private school since September of 2007. (T-713 and 717-
8) Accordingly, he is experienced in performing appropriate follow-up intervention activities at home, which is why “parent training” is mandated. (8 NYCRR 200.13[d]) I find under the circumstances of this case that the DOE’s failure to incorporate parent counseling and training into the February 28, 2011 IEP, while such is a violation of State regulation, it does not rise to the level of a denial of a FAPE to the student. (See R.E., 694 F.3d at 191; C.F., 2011 WL 5130101, at *10, M.N., 700 F. Supp. 2d at 368, M.M., 583 F. Supp. 2d at 509 and M.W., 2012 WL 2149549, at *13) Additionally, I note that the DOE was capable of providing the service and, as stated by the Second Circuit, the DOE “remain[s] accountable for its failure to [provide parent counseling and training] no matter the contents of the IEP” as required by State regulations. (See R.E., 2012 WL 4125833)
On the whole, for the reasons stated above, I must find that the DOE did offer the student a FAPE for the 2011-2012 school year. Having so found, the necessary inquiry is at an end and I need not determine whether the student is appropriately placed at the private school, or whether equitable considerations bar an award on behalf of the Parent. (See Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 134 [2d Cir. 1998], “If the challenged IEP was adequate, the state has satisfied its obligations under the IDEA and the necessary inquiry is at an end.”, see also SRO No. 03-058)
NOW therefore, it is hereby
ORDERED that the Parent’s request for relief is DENIED. Dated: December 19, 2012
________________________________
EDGAR DE LEON, ESQ.
Impartial Hearing Officer
ED: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
PARENT
A Impartial Hearing Request, 11/11/11, 15 pp. B E-Mail, 11/22/11, 2 pp. C E-Mail, 11/17/11, 2 pp. D Letter, 8/18/11, 5 pp. E Letter, 6/30/11, 4 pp. F Letter, 6/13/11, 3 pp. G Letter, 5/20/11, 5 pp. H Progress Report Overview, 2010-2011, 2 pp. I Interdisciplinary Report, 5/2011, 14 pp. J Interdisciplinary Report, 12/2010, 11 pp. K Interdisciplinary Report - Add., 1/2011, 4 pp. L Interdisciplinary Report, 5/2010, 13 pp. M Affidavit of Payment , 12/15/11, 2 pp. N Enrollment Contract , 2010-2011, 6 pp. O Brochure, Undated, 16 pp. P Cancelled Checks, Various Dates, 4 pp. Q Request for Subpoena, 12/16/11, 4 pp. R E-Mails, 12/16/12-/12/23/12, 4 pp. S Interdisciplinary Report – Update, 12/2011, 4 pp. T Omitted U School Curriculum, Undated, 4 pp. V Special Education Delivery Report, 2011-2012, 1 p. W Affidavit - , 5/9/12, 32 pp. X Schedule of Payments, Various Dates Y E-Mail, Various Dates Z E-Mail, Various Dates, AA E-Mail, Various Dates, BB E-Mail, Various Dates,
DEPARTMENT OF EDUCATION
1 DPC, 11/11/11, 13 pp. 2 Due Process Response, 11/17/11, 4 pp. 3 IEP, 2/28/11, 16 pp. 4 IEP Meeting Minutes, 2/28/11, 2 pp. 5 FNR, 6/15/11, 1 p. 6 Notice of Recommendation, 2/28/11, 1 p. 7 12-Month Consent, 2/28/11, 1 p. 8 Placement Referral Form, 2/28/11, 1 p. 9 Classroom Observation, 11/8/10, 2 pp. 10 Evaluation, 11/9/10, 6 pp. 11 Interdisciplinary Report, 12/2010, 11 pp. 12 Interdisciplinary Report - Add., 12/2010, 4 pp. 13 Parent Letter to CSE, 5/4/11, 3 pp. 14 IEP, 4/21/10, 19 pp. 15 Classroom Observation, 11/12/08, 2 pp. 16 Class Profile, Undated, 1 p. 17 Referral Form, 6/15/11, 1 p.