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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 9, 2011
November 28, 2011
Actual Record Closed Date: January 12, 2012
Hearing Officer: Jeffrey Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 9, 2011
Advocate — Student
Parents
District Representative, CSE — DOE
(via telephone) — DOE
Assistant Principal (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 28, 2011
Advocate — Student
Parents
School, (via telephone) — Student
Assistant Head of Schools, (via telephone) — Student
DR., School Psychologist, — DOE
Chairperson Designee, CSE — DOE
I. PROCEDURAL HISTORY
This hearing was requested on April 15, 2011 by the advocate for the student and the parent 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 parent for, and/or directly pay, costs associated with the student’s unilateral private placement at the for the 2010/11 school year (Ex. P-A at 3).1 I was appointed by the DOE to hear this matter on April 19, 2011. In a letter dated May 31, 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 June 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 9, 2011 and November 28, 2011. 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).
At the time of a May 7, 2010 annual review meeting of the DOE’s Committee on Special Education (the “CSE”), the student was eight (8) years old and educationally classified as having another health impairment (R. 17-18; Ex. SD-1 at 1).[3]
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. 46, 71-75, 194-200; Exs. IHO-III, IHO-IV, IHO-V, IHO-VI, IHO-VII, IHO-VIII, IHO-IX). See 8 NYCRR § 200.5(j)(5).
At the November 28th hearing, the parent’s advocate requested that certain documents be provided to the parent by the DOE (R. 194-198). On November 29, 2011, and again on December 21, 2011, the case compliance date in this matter was extended in order to facilitate the DOE’s compliance with the parent’s document production requests (Exs. IHO-VIII, IHO-IX). As neither party requested additional hearing dates (based either on the DOE’s disclosures or its failure to disclose the requested documents) by the revised record close date of January 12, 2012, the hearing record was closed on January 12, 2012 (Ex. IHOIX).
During an April 19, 2010 classroom observation of the student, it was noted that he was motivated, able to sustain concentration and complete assignments, but also is organized (Ex. SD-2).
On an April 20, 2010 related service progress report, the student’s occupational therapist noted that the student’s “writing tasks frequent redirection to tasks” due to “his .” The therapist recommended that, for the following school year, the student receive individual occupational therapy, three (3) times per week for thirty (30) minutes per session (Ex. SD-4).
On an April 28, 2010 related service progress report, Dr. , the student’s counselor, described the student’s then-present level of functioning:
[The student] is a , . He is and more aware of boundaries and giving other their space. His ability to listen to adult and peer requests, despite it not being to his liking, has improved. He has made some progress with .
However, when angry he tends to shut down and become internally focused on his anger. [The student] can become uncooperative with peers or teacher. He has a , especially in situations that are not fair or he feels he is not being heard. at times. His ability to control these feelings is variable. [The student] can become . He and and comfort from others. He enjoys helping others to the point where, sometimes, he likes to take over. Peers can resent this. [The student] is working on being , and understanding the perspectives of others. in his flexibility of thought and expectations and coping strategies (Ex. SD-6).
To address the student’s , Dr. recommended that the student receive two (2) counseling sessions per week, one (1) individually and one (1) in a small group (Ex. SD6).
On a April 29, 2010 progress report, the student’s third grade teacher at the noted that the student exhibited strong reading decoding skills (5.0 G.E.), but that his reading comprehension skills were “ .” The student displayed grade appropriate math skills ( G.E.); being proficient in math operations, but displaying a relative weakness in multi-step equations. In written expression, the student was “able to write a paragraph environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(10). with an introductory statement and supporting detail,” but needed adult assistance to complete that task (Ex. SD-3).
The student’s also reported on the student’s academic management needs. When the student was focused,
[H]is ability to take in information [was] good. However, due to a lack of focus this usually happens 2/5 times [sic] . . . When [the] student is focused and on task, he participates nicely. If he is upset, [the student] will not engage in class activities.
At times [the student] can be cooperative, but at other times he is easily frustrated.
When that happens, [the student] can become aggressive and hard to reason with.
At times he has left the classroom without permission and security must be alerted
(Ex. SD-3)
On May 7, 2010, the CSE convened for an annual review of the student’s special education program. For the 2010/11 school year, the student’s , the CSE recommended that the student be educated in a special class in a community school (R. 19; Ex. SD-1 at 1). The CSE also recommended that the student receive the related services of: individual counseling, two (2) times per week for thirty (30) minutes per session; individual occupational therapy, three (3) times per week for thirty (30) minutes per session; and individual speech/language therapy, two (2) times per week for thirty (30) minutes per session (R. 19; Exs. SD-1 at 1, 10, SD-6).
In a final notice of recommendation, dated July 20, 2010, the DOE identified the student’s proposed placement as Ex. SD-6).
In a letter dated August 18, 2010, the advocate, on behalf of the student and the parent, notified the CSE of the parent’s intent to make a unilateral placement of the student at the Adelphi Academy at public expense for the 2010/11 school year (Ex. P-C).
On or about September 16, 2010, the parent wrote to the CSE following her observation of the proposed public program for the student at . The parent rejected the proposed program stating that it “was not behaviorally based,” that “the academics were very advanced” and “way over his head,” and that the proposed class was full (Ex. P-D).
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 Adelphi Academy for the 2010/11 school year. The May 7, 2010 annual review meeting of the DOE’s CSE was not duly constituted, given the absence of the student’s teacher, related service providers, and an additional parent member from the meeting. The CSE had inadequate evaluative material on which to base its recommended for the student for the 2010/11 school year. The CSE has not conducted a clinical evaluation of the student’s levels of educational functioning in more than three (3) years. Lastly, the annual educational goals developed by the CSE for the student were not individually tailored to his needs (Exs. P-A).
B. The DOE
Although the DOE’s representatives at the hearing declined to make an opening or closing statement, from the evidence it offered into the hearing record, I understand that it opposes the parent’s claim for tuition reimbursement.
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).
B. Tuition Reimbursement
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).
1. Membership at May 7, 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 parent argues that the May 7th CSE was not properly constituted because it did not include the student’s teacher, the therapist, and an additional parent member (Ex. PA).
A CSE must include “at least one special education teacher of the student,” and “at least one regular education teacher of the student” if the child is, or may be, participating in the regular education environment. See 20 U.S.C. § 1414(d)(1)(B); 34 C.F.R. § 300.321; N.Y. Educ. Law § 4402(1)(b)(1)(a); 8 NYCRR § 200.3(a)(1). If the child is not in public school, the school district may determine which teacher will participate in the meeting. See Application of a Child Suspected of Having a Disability (New York City Dep’t of Educ.), Appeal No. 98-64 (SRO October 28, 1999). As the student was voluntarily enrolled by his parents in a private school during the 2009/10 school year, the DOE had the right to determine which teacher would participate in the meeting (R. 37, 40, 184; Exs. SD-1 at 2, SD-3). See id. Therefore, the DOE was free to designate one of its special education teachers to serve as the teacher member of the CSE
(R. 16-17, 26, 39-41; Ex. SD-1 at 2).[5] See id.
The parent also argues that the CSE failed to secure the participation of the student's occupational therapist or speech/language therapist at the May 7, 2010 meeting (Exs. SD-1 at 2, P-A at 1-2). New York State law provides that a CSE shall include "persons having knowledge or special expertise regarding the student, including related services personnel as appropriate, as the school district or the parent(s) shall designate. The determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual." See 8 NYCRR § 200.3(a)(2)(vii). Although the request by a school district for the participation of a student's related service providers is to be encouraged, it is discretionary under State law and I find that the DOE did not violate any procedural requirements by not securing the student's occupational therapist or speech/language therapist to participate at the May 7, 2010 meeting. See Application of a Student with a Disability (New York City Sch. Dist.), Appeal No. 11-002 at 14-15 (SRO March 24, 2011).[6]
The parent also argues that the May 7, 2010 CSE was not properly composed because it did not include the participation of an additional parent member. Although not required by the IDEA, see 20 U.S.C. § 1414(d)(1)(B); 34 C.F.R. § 300.321, New York State law requires the presence of an additional parent member at the CSE meeting that formulates a student’s IEP, see N.Y. Educ. Law § 4402(1)(b)(1)(a); 8 NYCRR § 200.3(a)(1)(viii). New York law provides that membership of a CSE shall include an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting. See N.Y. Educ. Law § 4402(1)(b)(1)(a); 8 NYCRR § 200.3(a)(1)(viii). Parents have a right to decline, in writing, the participation of the additional parent member at any meeting of the CSE. See 8 NYCRR § 200.5(c)(2)(v). Under New York State law, CSE subcommittees have the authority to perform the same functions as the CSE, with the exception of instances in which a student is considered for initial placement in a special class, or a student is considered for initial placement in a special class outside of the student’s school of attendance, or whenever a student is considered for placement in a school primarily serving students with disabilities or a school outside of the student’s district. See N.Y. Educ. Law § 4402(1)(b)(1)(d); 8 NYCRR § 200.3(c)(4). State law further provides that when a district is permitted to convene a CSE subcommittee, the subcommittee need not include an additional parent member. See N.Y. Educ. Law § 4402(1)(b)(1)(d); 8 NYCRR §§ 200.3(c)(2)-(5).
In this case, no record was presented by the DOE evidencing that the parent waived the participation of an additional parent member at the May 7, 2010 CSE review meeting (R. 23). Although the hearing record characterized the meeting as an “Annual CSE Review,” the evidence contained in the hearing record establishes that the student was not being considered for initial placement in a special class, a school primarily serving students with disabilities, or a school outside of the student’s district (R. 38, 179; Ex. SD-1 at 1-2, 9). Therefore, under State regulations, the May 7, 2010 CSE could have permissibly proceeded as a CSE subcommittee, and an additional parent member would not have been a required participant. See N.Y. Educ. Law § 4402(1)(b)(1)(d); 8 NYCRR §§ 200.3(c)(4)(i)-(iii).
Alternatively, the hearing record does not support the parent’s argument that the absence of the student’s teacher, a related service provider and an additional parent member deprived the student of a FAPE for the 2010/11 school year. The evidence contained in the hearing record demonstrates that, in addition to her participation at the May 7, 2010 CSE meeting, the student’s mother was given a tour of the proposed special class and spoke to the special class teacher (R. 91, 181-183; Exs. SD-1 at 2, SD-6, P-D). Given the parent’s participation in the May 7th CSE meeting and subsequent tour of the proposed program, I do not find that the absence of the above-referenced participants impeded the student’s right to a FAPE, significantly impeded the parent’s opportunity to participate in the decision-making process, or caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513; 8 NYCRR § 200.5(j)(4).
2. Adequacy of Evaluative Data
The parent alleges that the CSE’s failure to evaluate the student more than three
(3) years prior to the May 7, 2010 meeting violated the procedural requirements of the IDEA, rendering the student’s 2010/11 IEP legally inadequate and denying the student a FAPE. The parent asserts that due to the absence of a timely clinical evaluation, the CSE underestimated the student’s (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 an April 19, 2010 classroom observation, an April 20, 2010 related service progress report prepared by the student’s occupational therapist, an April 28, related service progress report prepared by the student’s counselor and the most up-to-date information about the student’s thencurrent skill levels by the student’s teacher at the ) including teacher estimates in the areas of reading decoding, reading comprehension, math computation, mathematical problem solving, written language and management needs (R. 19-20; Exs. SD-1 at 3-5, SD-2, SD-3, SD-4, SD-5). See 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2).
Alternatively, a school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student’s parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR §§ 200.4(b)(4), 200.16(d)(5), however, a school district need not conduct a reevaluation more frequently than once per year unless the parent and the school district otherwise agree and at least once every three (3) years unless the district and the parent agree in writing that such a reevaluation is unnecessary, see 8 NYCRR §§ 200.4(b)(4), 200.16(d)(5); see also 34 C.F.R. §§ 300.303(b)(1)(2).
While the DOE offered no evidence of its compliance with the reevaluation requirement, I find that the CSE recommended appropriate strategies to address the student’s academic management needs (R. 29; Ex. SD-1 at 3-4). See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); C.F. v. New York City Dep’t of Educ., 11 Civ. 00157 (LTS), 111 LRP 68797 (S.D.N.Y. Oct. 28, 2011); J.A. v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 (S.D.N.Y. 2009). Specifically, to address the student’s inconsistent focus and poor frustration tolerance, the CSE recommended individual counseling, two times per week, to supplement the support the student would receive from his special class teacher and paraprofessional (R. 21-22, 55, 57, 64-65, 187; Exs. SD-1 at 1, 4, 6, 10, SD-3).
3. Annual Goals
In the due process complaint, the parent contends that the annual goals contained in the May 7, 2010 IEP were inappropriate and not individually tailored to address the student’s educational needs (Ex. P-A at 2). 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 May 7, 2010 IEP were consistent with the student’s identified needs in the areas of multi-step mathematical word problems, written expression, as reflected in an April 20, 2010 related service progress report from the student’s , an April 28, 2010 related service progress report from the student’s counselor and an April 29, 2010 progress report from the student’s teacher (R. 26-28, 30; Exs. SD-1 at 3, 6-7, SD-4, SD-5).
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).
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 for the 2010/11 school year is hereby DENIED; and
(2) the parent’s due process complaint dated April 15, 2011 is hereby DISMISSED. Dated: January 26, 2012
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer
JJS:gc
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 JULY 11, 2011
PARENT
A. Impartial Hearing Request/Due Process Complaint, 4/15/11, 4 pgs.
DEPARTMENT OF EDUCATION
1. IEP, 5/7/10, 10 pgs.
2. Classroom Observation, 4/19/10, 1 pg.
3. Teacher Progress Report, 4/29/10, 1 pg.
4. Progress Report, 4/20/10, 2 pgs.
5. Progress Report, 4/28/10, 2 pgs.
6. Final Notice of Recommendation, 7/20/10, 1 pg.
IMPARTIAL HEARING OFFICER
I. Letter to Parties from IHO, 5/31/11, 5 pgs.
II. Letter to Parties from IHO, 6/4/11, 2 pgs.
DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 28, 2011
PARENT
B. Description, undated, 1 pg.
C. Letter to CSE from parent, 8/18/10, 1 pg.
D. Final Notice of Recommendation (with written comments), 7/20/10, 2 pgs.
E. Affidavit, , 6/2/11, 1 pg.
F. Attendance Record, 6/1/11, 1 pg.
G. , Weekly Class Schedule, 2010/11 school year, 1 pg.
H. Class Profile, 2010/11 school year, 1 pg.
I. , Student Progress Reports, 2010/11 school year, 7 pgs.
J. 2009 Tax Return for Parent, 2 pgs.
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
IMPARTIAL HEARING OFFICER
III. Confirmation of Extension, 6/16/11, 1 pg.
IV. Confirmation of Extension, 7/27/11, 1 pg.
V. Confirmation of Extension, 8/26/11, 1 pg.
VI. Confirmation of Extension, 9/9/11, 1 pg.
VII. Confirmation of Extension, 10/26/11, 1 pg.
Footnotes
[3] Other health impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational
[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] Ms. , the Director of the of the , participated in the May 7, 2010 CSE meeting by telephone (R. 17, 24, 41; Ex. SD-1 at 2).
[6] At its May 7, 2010 meeting, the CSE was in possession of written reports from the student’s counselor and occupational therapist on the student’s progress (R. 27; Exs. SD-1, SD-4, SD-5).