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FINDINGS OF FACT AND DECISION
Case Number:
Student‟s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: September 16, 2011
November 14, 2011
January 13, 2012
Actual Record Closed Date: January 23, 2012
Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 16, 2011
ESQ., Attorney — Student
Parents
District Representative (CSE ) — DOE
Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 14, 2011
ESQ., Attorney — Student
Parents
Associate Director,, (via telephone) — Student
District Representative (CSE ) — DOE
Assistant Principal, (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 13, 2012
ESQ., Attorney — Student
Parent (via telephone) — Student
Special Education Teacher, (via telephone) — Student
District Representative (CSE ) — DOE
— DOE
I. PROCEDURAL HISTORY
This hearing was requested on March 22, 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 reimburse the parents for costs associated with their unilateral placement of the student at The of the (the “ ”) for the 2010/11 school year (Ex. P-A ).[1] I was appointed by the DOE to hear this matter on March 22, 2011. In a letter dated April 13, 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). A pre-hearing conference was held on May 4, 2011 with the parties to clarify the issues and select dates for the hearing (Exs. IHO-I at 2, IHO-II). See 8 NYCRR § 200.5(j)(3)(xi). Hearings in this matter were held on: September 16, 2011, November 14, 2011 and January 13, 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 an April 29, 2010 meeting of the DOE‟s Committee on Special Education (the “CSE”), the student was ( ) years old and scheduled to begin the in September 2010 (Ex. SD-1 at 1). The student‟s eligibility for special education and related services as a student with a is not in dispute in this hearing. (R. 24; Exs.
P-A, SD-1). See 34 C.F.R. § 300.8(c)(10); 8 NYCRR 200.1(zz)(10)[3]
On March 25, 2009, the student was reevaluated due to his aging out of his . During the 2008/09 school year, the student was in a special class and received related services of , and , along with the assistance of a paraprofessional. On the of and , the student obtained an overall within the . The student‟s skills also within the range. His of , and was as was his and skills (Ex. SD-4 at 2).
During the classroom observation component of the reevaluation, the student was noted to be with another child. The student‟s teacher at that time reported that he was and had a (he had previously been diagnosed with and ). The student was beginning to with, and with, his , but still displayed (Ex. SD-4 at 2-3).
The student also displayed at the time of the March 2009 reevaluation. He know all of his and , he could the , and could all of his and . The student could also his and the of the . The student displayed, however, a in and skills (Ex. SD-4 at 3).
According to his teachers at the time, the student needed to continue to receive special education services. His main teacher felt that he was able to function without the paraprofessional but there were , - traits that required a small class setting in order for the student to maximize his learning potential (Ex. SD-4 at 3).
In January 2010, the student‟s kindergarten teacher at the noted that he was “ ,” “ ,” was “ ,” had “ ,” and “ ” (Exs. SD-1 at 3-4, SD-5).
During the 2009/2010 school year, the student received related services of: individual and / , , and (Ex. SD-5). In a February 21, 2010 progress report, the student‟s stated that he had “ ” toward his educational goals (Ex. SD-2). In a February 10, 2010 progress report, the student‟s stated that:
[The student] has and on all [of his] goals . . . He has not consistently met them secondary to of , of and lack of focus. His are impacted by these characteristics. His is an bright with a in his . However, [the student] speaks in sentences and has , rather than . Again, this is a product of [sic] and . . . [The student] while engaging, requires to topic and to seated and to his space (Ex. SD-3).
During a March 15, 2010 classroom observation, the student was observed following teacher directions and was described as having “ ” and “ ” attention span. The same report, however, also described the student as being “ ” and requiring teacher redirection. No unusual or disruptive behaviors were observed but a behavior modification system was used in the classroom (Ex. SD-6).
The CSE convened on April 29, 2010 for an annual review of the student‟s IEP. From a report provided by the student‟s teacher, the CSE determined that the student was functioning at level in and reading comprehension and at a level in mathematics. The student‟s written expression was described as “ ” with sentences structure, awareness and punctuation. The student also presented with and . The student‟s “ ” was determined to be his and need for cues to . His in and focus were deemed to be the likely cause of his (R. 22; Ex. SD-1 at 3-4).
For the 2010/11 school year, the student‟s grade, the CSE recommended that the student receive special class instruction in a student-to-teacher ratio with related services of individual , group , group , and individual and group (R. 24; Ex. SD-1 at 1, 19).
On May 12, 2010, the parents began making payments for the student to attend the in the fall (Ex. P-E). On July 14, 2010, the DOE provided written notice to the parents of its placement recommendation of the student to attend in the fall (Ex. SD7). In a letter dated July 21, 2010, the parents wrote a letter to the CSE expressing concerns about the recommendation of a special class for the student and requesting addition information about the proposed class (Ex. P-B). Following a visit to the proposed program, the parents wrote to the CSE rejecting the proposed class and providing the DOE with notice of their intent to unilaterally place the student at the at public expense (Ex. P-C).
III. POSITIONS OF THE PARTIES
A. The Parent
The student is entitled to reimbursement and/or direct payment for the student‟s tuition to the for the 2010/11 school year. The April 29, 2010 annual review meeting of the DOE‟s CSE was not duly constituted. The IEP fails to adequately describe the student‟s special education needs and does not reflect the documentation and information that had been before the team. The goals and objectives were also inappropriate and insufficient. The program recommendation of a special class was substantively inappropriate for the student, who required a smaller class due to his significant and needs. The proposed class also did not provide an appropriate peer grouping for the student (R. 377-399; Exs. P-A).
B. The DOE
The parents‟ tuition reimbursement claim for the 2010/11 school year should be denied. The student was offered a FAPE for the 2010/11 school year which complied with all procedural requirements and was reasonably calculated to enable the student to receive educational benefits. The student to make meaningful in his unilateral private placement during the 2010/11 school year. The equities also mitigate against an award of tuition reimbursement (R. 15-17)
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, 20 U.S.C. § 1400-1482, are: (1) to ensure that 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, employment and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.[4] 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 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).
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).
B. CSE‟s Proposed Program
For the reasons stated below, I find that the CSE offered the student a FAPE which was reasonably calculated to confer meaningful educational benefit to the student. I also find that none of the alleged procedural deficits in the development of the student‟s IEP for the 2010/11 school year 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 to the student, or caused a deprivation of educational benefits.
1. Membership at April 29, 2010 CSE Meeting
Turning to the first prong of the Burlington/Carter test, I must determine whether the DOE complied with the procedural protections of the IDEA. See Cerra, 427 F.3d at 192. The parents allege that the April 29, 2012 CSE was not properly constituted (Ex. PA).
An IEP must be prepared by a CSE having each of its required members. See, e.g., Application of a Child with a Disability (Byram Hills Cent. Sch. Dist.), Appeal No. 99-54 (SRO July 31, 2000). A CSE must consist of: the parents of the student; at least one regular education teacher of the student (if the child is, or may be, participating in the regular education environment); at least one special education teacher of the student, or if appropriate, at least one special education provider of the child; a school psychologist; a representative of the school district qualified to provide or supervise the provision of special education; an individual who can interpret the evaluations being reviewed by the CSE; and an additional parent member. See 20 U.S.C. §§ 1414(b)(4)(A), (d)(1)(B); 34 C.F.R. § 300.321; N.Y. Educ. Law §§ 4402(1)(b), 4410(3), 8 NYCRR § 200.3(a).
Based upon the credible testimony of Ms. (the school psychologist and CSE chair) and upon my review of the list of participants in attendance at the April 29, 2010 meeting, I find that the April 29th CSE was duly constituted (R. 22-23, 29, 32, 34; Ex. SD-1 at 2).
Alternatively, while the parents argue that the IEP is invalid because the April 29th CSE lacked a proper regular education teacher, I do not find that the CSE failed to offer the student a FAPE because the regular education teacher who attended the CSE meeting, Mr. , was not a teacher of the student. The CSE‟s selection of Mr. to th participate in the April 29 meeting was reasonable given that he had conducted a classroom observation of the student on March 15, 2010 (R. 34-35, 68; Ex. SD-6).
The hearing record demonstrates that the student was voluntarily enrolled by his parents in a special education school ( ) during the 2009/10 school year, that the CSE recommended a special class for the student for the 2010/11 school year, see 8 NYCRR § 200.6(h)(4)(i), and that the parents‟ unilaterally placed the student at the for the 2010/11 school year which admits only students with special education needs (R. 71-
72; Exs. SD-1, P-A, P-D, P-E). Additionally, neither party in this case argues that the CSE should have offered the student additional opportunities for mainstreaming or that he should have been in a general education setting for the 2010/11 school year (R. 15-17, 377-399; Ex. P-A).
Given the facts stated above, I find that a regular education teacher of the student was not required at the April 29, 2010 CSE meeting because the evidence does not support the conclusion that there was a reasonable likelihood that the student would have been assigned to such a teacher. See 34 C.F.R. § 300.321(a)(2); 8 NYCRR § 200.3(a)(1)(ii); W.T. v. Board of Educ., 716 F. Supp. 2d 270, 287-88 (S.D.N.Y. 2010); M.N. v. New York City Dep’t of Educ., 700 F. Supp. 2d 356, 365-66 (S.D.N.Y. 2010).[5]
2. Adequacy of Evaluative Data
The parents allege that the CSE‟s failed to rely on sufficient documentation which led to an inadequate description of the student‟s special education needs in his IEP (R. 380; Ex. P-A).
It is well settled that, with certain exceptions, a school district must periodically review, at least annually, and revise, as appropriate, a student‟s IEP. See 20 U.S.C. § 1414(d)(4)(A); 34 C.F.R. § 300.324(b)(1)(i); N.Y. Educ. Law § 4402(2); 8 NYCRR § 200.4(f). The CSE is required to develop and IEP that accurately reflects the student‟s special education needs. See 34 C.F.R. § 300.306(c)(2); 8 NYCRR § 200.4(d)(2). Among the elements of an IEP is a statement of a student‟s academic achievement and functional performance and how the student‟s disability affects his or her progress in relation to the general education curriculum. See 20 U.S.C. § 1414(d)(1)(A)(i)(I); 34 C.F.R. § 300.320(a)(1); 8 NYCRR §§ 200.1(ww)(3)(i), 200.4(d)(2)(i).
Although State regulations require that an IEP report the student‟s present levels of academic achievement and functional performance, State regulations do not mandate or specify where that information must come from. See Application of a Student with a Disability (New York City Dep‟t of Educ.), Appeal No. 11-043 at 11 (SRO June 14, 2011). In this case, the evidence reveals that the CSE complied with State and federal regulations to accurately and properly report the student‟s present levels of academic achievement and functional performance by relying, in part, upon a March 25, 2009 psychoeducational evaluation, a February 10, 2010 related service progress report prepared by the student‟s , a February 21, 2010 related service progress report prepared by the student , a March 15, 2010 classroom observation, and a January 2010 progress report prepared by the student‟s teacher at the , which included teacher estimates of functioning levels in the areas of reading, math, / and classroom management needs (R. 25, 33, 40-47, 53-54, 76-77; Exs. SD-1, SD-2, SD-3, SD-4, SD-5, SD-6). See 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2).
3. Annual Goals
In the due process complaint, the parents contend that the annual goals contained in the April 29, 2010 IEP were inappropriate and not individually tailored to address the student‟s educational needs (R. 382; Ex. P-A). An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student‟s needs that result from the student‟s disability and to enable the student to be involved in and make progress in the general education curriculum. See 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 C.F.R. §300.320(a)(2)(i); 8 NYCRR § 200.4(d)(2)(iii). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review of the committee. See 20
U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3); 8 NYCRR §
200.4(d)(2)(iii)(b).
I find that the annual goals contained in the April 29, 2010 IEP were consistent with the student‟s identified needs in the areas of reading comprehension, reading decoding, math computation, written , , /, , and , and and language as reflected in a March 25, 2009 evaluation, a January 2010 progress report prepared by the student‟s teacher at the , a February 10, 2010 related service progress report prepared by the student‟s , a February 21, 2010 related service progress report prepared by the student‟s , and a March 15, 2010 classroom observation (R. 27-28, 61-64; Exs. SD-1 at 9-16, SD-2, SD-3, SD-4, SD-5, SD-6).
4. Proposed Grouping
The parents contend that the student would not be suitably grouped for instructional purposes in the proposed special class at (R. 382-383; Exs. SD-1, SD7, P-A).
Neither the IDEA nor State regulations require a school district to establish the manner in which a student will be grouped on his or her IEP, as it would neither be practical nor appropriate. See Application of the New York City Sch. Dist., Appeal No. 11-025 at 17 (SRO April 7, 2011).[6] I note that the documentary evidence demonstrates that the parents decided to unilaterally placed the student at the prior to the time that the DOE was required to implement the IEP in September 2010 (Exs. P-B, P-D, P-E). In this case, issues regarding the age range and functional levels of the students in the proposed class are speculative because, by September 2010, it became clear that the parents intended to enroll the student at the (R. ; Exs. P-B, P-D, P-E). Nevertheless, based on the credible testimony of Ms. - and Mr. ( I find that the other children in the proposed class had similar and to the student
(R. 58, 66, 82-84, 101, 113; Exs. SD-1, SD-6).
Even assuming, , that the proposed grouping of the student in the special class at was inappropriate, it is unknown whether the CSE would have attempted to adjust classroom assignments to comply with the age range or functional grouping requirements, sought a variance to the requirements in accordance with State regulations, see 8 NYCRR § 200.6(h)(6), or done nothing. Therefore, I decline to find that the proposed grouping of the student in the designated class at for the 2010/11 school year was inappropriate.
5. Proposed Class
While the parents allege that the proposed class at would not have addressed the student‟s and , I find that the hearing record supports the CSE‟s recommendation to place the student in a placement in a community school (R. 383; Ex. SD-1). See
Rowley, 458 U.S. at 207; Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 592 F.3d 267, 270 (1st Cir. 2010) (noting that the underlying judgment of those having primary responsibility for formulating a student IEP is given considerable weight); Marshall Joint Sch. Dist. No. 2 v. C.D., 616 F.3d 632, 641 (7th Cir. 2010).
Ms. – provided credible testimony that the proposed special class would have met the student‟s individual educational needs in reading, writing and math (R. 2830, 64, 67, 71; Ex. SD-1). To address the student‟s in and , the CSE recommended program of and , breaking down long instruction into more manageable units, use of and use of and (R. 27; Exs. SD-1at 3). The CSE also recommended individual and group to address the student‟s -to- and language , which manifested as error and (Ex. SD-1 at 1, 4, 19).
C. Conclusion
As discussed above, I find that the DOE offered the student a FAPE for the 2010/11 school year. I have considered the parent‟s remaining contentions, including whether the was appropriate for the student for the 2010/11 school year and whether equitable considerations would support or bar an award of tuition to the parents, and find them unnecessary to address in light of my determinations herein. See, e.g., Application of a Student with a Disability, Appeal No. 11-055 at 16 (SRO June 30, 2011).
However, even if I had found that the CSE‟s recommended program for the student was inappropriate, I would have denied the parents‟ claim for tuition reimbursement on equitable grounds given their failure to provide the DOE with timely written notice of their intent to make a unilateral placement of the student at public expense for the 2010/11 school year (Exs. P-C, P-D, P-E). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346 (S.D.N.Y. 2009); A.H. v. New York City Dep’t of Educ., 652 F. Supp. 2d 297 (E.D.N.Y. 2009), aff’d on other grounds, 394 F. App‟x 718 (2d Cir. 2010).
V. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) the parent‟s demand for tuition reimbursement to the of the for the 2010/11 school year is hereby DENIED; and
(2) the parent‟s due process complaint dated March 22, 2011 is hereby DISMISSED. Dated: February 8, 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 SEPTEMBER 16, 2011
PARENT
A. Impartial Hearing Request/Due Process Complaint, 3/22/11, 2 pgs.
B. from parents, 7/21/10, 2 pgs.
C. from parents, 9/14/10, 2 pgs.
DEPARTMENT OF EDUCATION
1. IEP, 4/29/10, 19 pgs.
2. Related Service Progress Report (OT), 2/21/10, 1 pg.
3. Related Service Progress Report (S/L), 2/10/10, 1 pg.
4. Evaluation, 3/25/09, 3 pgs.
5. Student‟s Progress Report, 2009/10, 1 pg.
6. Observation, 3/15/10, 2 pgs.
7. Final Notice of Recommendation, 7/14/10, 1 pg.
IMPARTIAL HEARING OFFICER
I. Letter to Parties from IHO, 4/13/11, 5 pgs.
II. Letter to Parties from IHO, 5/4/11, 2 pgs.
DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 14, 2011
PARENT
D. , Academy, 2010/11 Enrollment Contract, 1 pg.
E. Affidavit, 5/18/11, 2 pgs.
F. Student Class Schedule, 2010/11 School Year, , Academy, 1 pg.
G. Report Card, , , 2010/11 School Year, 2 pgs.
H. School Progress Report, 4/14/11, 1 pg.
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 13, 2012
IMPARTIAL HEARING OFFICER
III. Confirmation of Extension, 5/4/11, 1 pg.
IV. Confirmation of Extension, 7/5/11, 1 pg.
V. Confirmation of Extension, 8/10/11, 1 pg.
VI. Confirmation of Extension, 9/12/11, 1 pg.
VII. Confirmation of Extension, 9/21/11, 1 pg.
VIII. Confirmation of Extension, 11/7/11, 1 pg.
IX. Confirmation of Extension, 11/14/11, 1 pg.
X. Confirmation of Extension, 1/6/12, 1 pg.
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 the requests, I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their respective positions in accordance with the requirements of due process justified the delay in the resolution of the matter. Accordingly, requests for extensions of the compliance date were granted due to the availability of witnesses and the extensive testimony and issues presented in this proceeding (R. 87-88, 251-252; Exs. IHO-I at 5; IHO-III, IHO-IV, IHO-V, IHO-VI, IHO-VII, IHO-VIII, IHO-IX, IHO-X).
[3] Other means having , or , including a to , that results in with respect to the educational environment, that is due to or problems, including but not limited to a , , , , , , , , , , , , which adversely affects a student‟s educational performance. 8 NYCRR § 200.1(zz)(10).
[4] 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 preschool, elementary school, or secondary school education in the State involved; and (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.
[5] To the extent that the closing statement of the parents‟ counsel may also be interpreted as challenging Ms. participation at the April 29th meeting as the student‟s special education teacher because she was employed by the student‟s private school ( ) rather than the DOE, I find that the fact that the special education teacher of the student was from the private school does not negate the appropriateness of her participation as the special education teacher member of the CSE (R. 380). See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513; 8 NYCRR § 200.5(j)(4); Application of the New York City Dep’t of Educ., Appeal No. 11-040 at 13-14 (SRO June 8, 2011).
[6] The Second Circuit has also determined that school districts are not expressly required to provide parents with class profiles. See Cerra, 427 F.3d at 194.