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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 1, 2012 Actual Record Close Date: March 23, 2012 Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 1, 2012
Attorney — Student
Mother — Student
Advocate — DOE
Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws, inter alia. The New York City Department of Education will be referred to as District, the parent as Parent and the child will be referred to as Student.
The Student has been diagnosed with , an , along with , , and . He exhibits . His , but he . He is classified as a
At the outset of the 2011/12 school year, the Student was attending a program with related services at a public school. On November 7, 2011, the District's committee on special education (CSE) convened to develop a new individualized education program (IEP) for the Student. The CSE recommended a twelve-month placement at a special school for students with disabilities, with (2x30 min/wk,, individually), therapy (1x30 min/wk group of two), and (1x30 min/wk individually and 1x30 min/wk group of two), as well as adapted physical education. Subsequently, the Department designated another District school as the placement.
The Parent’s Position
The Parent disagrees with the CSE's recommended program and placement. She asserts a denial of a Free Appropriate Public Education pursuant to 20 U.S.C. § 1415, the Individuals with Disabilities Education Act of 2004 (IDEA), and 8 N.Y.C.R.R. § 200.5, New York's implementing regulations of the IDEA, and section 504 of the Rehabilitation Act of 1973. In the amended complaint notice, dated December 5, 2011 (Ex. 1), the Parent seeks the following relief:
• annulment of the current IEP; • provision of an appropriate IEP, developed with the equal participation of the parent, to address the student's needs; • development of current and accurate present levels of educational performance and appropriate, measurable annual goals to address the student's needs, including identification of appropriate methodologies to address those needs; • provision of a and development of a including input from the Parent; • provision of a Nickerson Letter so that the Parent can place the Student in a non-public school, or provision of an appropriate program that addresses the student's needs instruction on a twelve-month basis; • provision of progress reports on IEP goals and objectives as required; • additional services to compensate for those necessary and appropriate services not provided;
The District’s Position
During the hearing, on February 1, 2012, the District representative conceded that the District failed to offer the Student a FAPE. The witnesses acknowledged they need to address the situation as soon as possible. She agreed that a should be conducted, and a should be developed. She acknowledged that the CSE should reconvene and develop an appropriate IEP after the evaluation is concluded. The District provided the Parent a Nickerson Letter during the prelude to the hearing on December 28, 2012.
IDEA
The (IDEA) is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (FAPE). 20 U.S.C. § 612(a)(I). "A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21." 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as 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, or secondary school education in the state involved, and
- (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).[1]
A FAPE is crafted through the collaboration of the disabled student's parents, teachers, and school district administrators and is recorded in an IEP (20 U.S.C. § 614(d)). The "core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. Weast, 546 U.S. 49, 53 (2005) The IEP is, in brief, a comprehensive statement of the educational needs of a and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14) In New York State, the IEP is produced by a committee on special education, (CSE) whose members are appointed by the board of education or trustees of the school district. (N. Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005)
The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. (See generally 20 U.S.C. § 615) These procedures include the opportunity for parents to obtain an independent educational evaluation of the child, (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency. (20 U.S.C. § 615(b)(6)) Any such complaint is resolved through an "impartial due process hearing" in which parents of disabled children have "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child." (20 U.S.C. § 615(b)(6)) Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002)
In New York State “The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing . . . ” NY Educ. Law § 4404 (1)(c) modifying the rule enunciated in Schaffer where “The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537 However, when “. . . seeking tuition reimbursement for a unilateral parental placement. . . [the parents] shall have the burden of persuasion and burden of production on the appropriateness of such placement.” NY Educ. Law § 4404 (1)(c)
and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).
With respect to due process hearings, the IDEA permits each state to determine whether it will provide a single-tier or two-tier administrative review process. (20 U.S.C. § 615(g)) New York has elected to employ the two-tier approach. (N.Y. Educ. Law § 4404 (McKinney Supp. 2005)); accord, Heldman v. Sobol, 962 F.2d 148, 152 (2nd Cir., 1992) Under the New York scheme a parent who wishes to challenge his or her child's IEP is entitled to a due process hearing conducted by a hearing officer appointed by the local board of education. (N.Y. Educ. Law § 4404(1) (McKinney Supp. 2005)) A party dissatisfied with the decision of the hearing officer has the right to appeal the hearing officer's decision to a State Review Officer. (SRO) (N.Y. Educ. Law § 4404(2) (McKinney Supp. 2005)) After these administrative remedies have been exhausted, a party may bring a proceeding pursuant to Civil Practice Law and Rules Article 4 in state court or a federal action under Section 615(i)(2) of the IDEA. (20 U.S.C. § 615(i)(2)(A); N.Y. Educ. Law § 4404(3) (McKinney Supp. 2004)
ANALYSIS
Because the District has already conceded denial of FAPE for the 2011-2012 school year, the primary issue is that of the appropriate relief. The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, require a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley) Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The IDEA requires that “An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs. . .” (Application of a Child with a Disability, Appeal No. 9312; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).” SRO 02055
Considering the above, I order that the current IEP, dated November 7, 2011, must be annulled. In doing so, I direct the CSE to reconvene as soon as practicable. In the meantime (See SRO 11-053), the Student should remain at his current school in a 12:1: class until such time as an appropriate non-public placement is available, pending implementation of the Nickerson letter, dated December 28, 2011. The Student requires an evidence-based program for children with autism, preferably
). Tr. 47-48; Parent Ex. 21 ("He requires a 12:1:1 class that functions academically on an average level and which uses to help him with social skills"); 27 at 2 ("Child needs a small structured program for children with that uses evidence based practice such as He requires a significantly improved assessment ( and a significantly more detailed behavior intervention plan (BIP). Tr. 28-29. He requires more structure in the classroom, such as visual schedules to prepare him for transitioning. Tr. 25-26. He also needs , along with a paraprofessional. Tr. 36-37. That paraprofessional should be trained in an evidence-based method for addressing the social skills of children with autism, preferably Tr. 47-48. The classroom teacher should provide the Student with a visual schedule and a routine to anticipate and prepare for transitions between school activities. The Student is also behind in math and requires specialized math instruction. Tr. 20-21; Parent Ex. 28 at page 9/21 ("score of 60 is reflective of a relative weakness in overall math skills"). The District must also provide parent , as required for the parents of children with under section 200.13(d) of the Regulations. Tr. 21-22. So Ordered. Dated: April 3, 2012
______________________________
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Demand for Due Process Hearing, 12/55/11, 5 pp.
IEPs
B IEP, 11/7/11, 18 pp. C IEP, 12/20/10, 16 pp. D IEP, 5/19/09, 14 pp.
CSE DOCUMENTS and CORRESPONDENCE
E Nickerson Letter, 12/28/11, 1 p.
F Letter from Parent to Whom It May Concern, 12/5/11, 1 p.
G Letter from Parent to Whom It May Concern, 11/25/11, 1 p.
H Final Notice of Recommendation, 11/15/11, 1 p.
I Letter from to Parent, 101411, 1 p.
J Consent for Assessments, 6/30/11, 1 p.
K Present Levels of Performance Form, 6/30/11, 1 p.
L Email from to Parent, 6/30/11, 1 p.
M Email from to Parent, 6/30/11, 1 p.
N Letter from Parent to , 6/30/11, 1 p.
O Letter from Parent to Ms. , 6/24/11, 1 p.
P Final Notice of Recommendation, 12/20/10, 1 p.
Q Final Notice of Recommendation, 5/19/09, 1 p.
R 12-Month School Year Consent Form, 5/19/09, 1 p.
S Educational Planning Conference Notice, 5/1/09, 1 p.
T 12-Month School Year Consent Form, 3/23/11, 1 p.
EVALUATIONS and MEDICAL DOCUMENTATION
U Letter from to Whom It May Concern, 12/22/11, 1 p.
V Discharge Plan, 10/11/11/ 9 pp.
W Admission Note, 10/7/11, 4 pp.
X Social History Update, 10/5/11, 1 p.
Y Evaluation Update, 10/4/11, 2 pp.
Z Classroom Observation, 10/3/11, 1 p.
AA Evaluation Update, 9/27/11, 2 pp.
BB Re-Evaluation, 9/26/11, 10 pp.
CC Scales-5 Summary Report, 9/26/11, 5 pp.
DD , 9/26/11, 2 pp.
EE , 9/26/11, 1 p.
FF , 5/19/09, 2 pp.
GG Classroom Observation (School ), 5/1/09, 1 p.
HH Classroom Observation (Social worker), 4/30/09, 1 p.
II , 4/29/09, 3 pp.
JJ Letter from to Whom It May Concern, 3/4/09, 1 p.
KK Evaluation, 3/3/09, 1 p.
LL Developmental Evaluation, 12/9/08, 4 pp.
MSCELLANEOUS REPORTS
MM Occurrence Report, 10/13/11, 1 p.
NN Behavior Update Email from Mrs. to Parent, 9/26/11, 1 p.
OO Conduct Sheets, 9/19/11-10/7/11, 3 pp.
PP Anecdotal Record, 9/13/11-10/6/11, 14 pp.
PROGRESS REPORTS and REPORT CARDS
QQ Related Service Provider Report–Guidance Counselor, 10/5/11, 1 p.
RR Student Progress Report, 10/4/11, 3 pp.
SS Annual Goals Progress Report (no data), 5/19/09, 4 pp.
TT Elementary Report Card, 3/16/09, 1 p.
UU NYC DOE Standard Operating Procedures Manual, 305 pp.
VV NYC DOE Continuum of Services Manual, 56 pp.
WW / Practice Guide, 38 pp.
DEPARTMENT OF EDUCATION
1 Nickerson Letter and Packet, 12/28/11, 15 pp. 2 Letter from Parent to Whom It May Concern, 12/21/11, 1 p. 3 Notice of Scheduled Resolution Meeting, 12/8/11, 3 pp. 4 Notice of IEP Amendment/Reconvene, 12/22/11, 2 pp. 5 Notice of IEP Amendment/Reconvene, 12/12/11, 2 pp. 6 Letter from Parent to Whom It May Concern, 12/21/11, 1 p. 7 SESIS Event Log, 1/20/12, 5 pp. 8 Student Biographical Information, 1/20/12, 2 pp. 9 Parent/Adult Information, 1/20/12, 1 p. 10 Student Attendance 2011-2012, 1/20/12, 5 pp. 11 School Session Times, 1/20/12, 1 p. 12 Map, 1/20/12, 1 p. 13 Return to Sender, 12/8/11, 1 p.
Footnotes
[1] "special education" is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a , including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term "related services" is defined as transportation, and such , and other supportive services (including , psychological services, , , , including , and , except that such medical services shall be for diagnostic