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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: June 12, 2012
July 20, 2012
Actual Record Closed Date: August 1, 2012
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 12, 2012
Parents
District Representative — DOE
Psychologist (via telephone) — DOE
Teacher (via telephone) — DOE
NAMES AND TITLES OF PERSON WHO APPEARED ON JULY 20, 2012
Parents
Social Worker (via telephone) — Student
District Representative — DOE
Assistant Principal, (via telephone) — DOE
Speech Therapist, (via telephone) — DOE
INTRODUCTION - ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the parent, who appears in this matter pro se, in a due process complaint notice dated April 30, 2012. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to place the student in a State-approved non-public school for students with autism (R. 3, 6-7; Ex. SD-1).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
I was appointed by the DOE to hear this matter on May 21, 2012, following the recusal of another hearing officer. A pre-hearing conference with the parties was held on June 7, 2012 to clarify the hearing issues, establish dates for the completion of the hearing, identify evidence to be entered into the hearing record, identify witnesses expected to provide testimony and address the DOE’s objection to the parent’s subpoena
(R. 3-18). See 8 NYCRR § 200.5(j)(3)(xi). Thereafter, hearings in this matter were held on June 12, 2012 and July 20, 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).
III. FACTUAL BACKGROUND
At the time of the April 30, 2012 hearing request, the student was old and educationally classified as having an (Ex. SD-2 at 1, 14).[3] For the 2011/12 school year, the student’s , he attended a special class program at (Exs. SD-2 at 10, SD-3 at 1). The student's eligibility for special education and related services as a student with a disability is not in dispute in this hearing (Exs. SD-1, SD-2). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).
As part of a February 4, 2010 , the student was administered the Wechsler Intelligence Scales for Children - Fourth Edition (“WISC-IV”), a standardized measure of intellectual ability. The student achieved a verbal comprehension score of , a perceptual reasoning composite score of , a working memory composite score of , a processing of and a full-scale IQ of Relative to children of comparable age, the student was functioning within the (Ex. P-G at 1).
On the Vineland Adaptive Behavior Scales - Second Edition (“Vineland-II”), the student obtained an adaptive behavior composite standard score of 62. While the student reportedly had adequate he . Based on his assessment of the student, the examiner concluded that the student was functioning within the moderate range of with (Exs. SD-3 at 1, P-G at 2-3).
In a letter dated March 16, 2010, Dr. noted that the student was her patient at the stated that:
[The student] is currently in a classroom in which he had experienced multiple incidents of other children being continued . He is unhappy in school and has been complaining frequently of . He should be switched out of his current school, as it has been an unsafe environment for him (Ex. P-C)
At a meeting held on March 16, 2010, while the student was in the the CSE developed an IEP for the student. The CSE recommended that the student receive the majority of his instruction in a special class in a specialized (District ) school supplemented by related services of special education transportation, adaptive physical education, individual therapy, individual and group physical therapy, individual occupational therapy and group counseling (Ex. P-A at 1, 16, 18).4
Following a September 8, 2010 , the student was diagnosed as having: - not otherwise specified (“ ”), ”), - (Exs. P-D, P-E, P-F at 8).
At a meeting held on November 12, 2010, while the student was in third grade, the CSE modified the student’s IEP for the balance of the 2010/11 school year to include group therapy and designate the student for alternate assessment. The CSE continued to recommended that the student receive the majority of his instruction in a special class in a specialized (District ) school supplemented by related services of: special education transportation, adaptive physical education, group counseling, individual occupational therapy, and individual and group physical therapy. The CSE also recommended that the student receive program modifications of: frequent repetition and rephrasing of directions and instruction, cues and prompting to initiate and maintain time on task (verbal and nonverbal prompts), preferential seating in the classroom to support focus, modified instruction, visual supports and manipulatives for math instruction, verbal positive reinforcement, modeling of new skills, small group and one-to-one instruction and positive behavior intervention (Exs. SD-9 at 2, SD-11 at 2, P-B at 1, 3, 14, 16).
On November 15, 2011, while the student was in , a assessment was conducted and a was developed to address (Exs. SD-4, SD-5).[5]
4 At this time the student was classified as having an emotional disturbance (Ex. P-A at 1). Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student’s educational performance:
(i) an inability to learn that cannot be explained by intellectual, sensory, or health factors; (ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (iii) inappropriate types of behavior or feelings under normal circumstances; (iv) a generally pervasive mood of unhappiness or depression; or
(v) a tendency to develop physical symptoms or fears associated with personal or school problems. The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance. 8 NYCRR § 200.1(zz)(4).
Following a November 9, 2011 resolution agreement on a prior claim, the student was referred for a . The student was readministered the WISC-IV as part of that November 29, 2011 assessment. The student’s cognitive functioning lied within the mildly mentally deficient range (full scale IQ score of ), with little variation in the level of his ability from one skill area to another. His practical reasoning, that is, his awareness of practical information and social expectations, although delayed for a student his age, was somewhat better developed than many of his other abilities. The student’s performance suggested that he would have significant , Mr. stated that the student would require a great deal of extra time, repetition, consistency and multisensory instruction to learn basic academic skills (Exs. SD-3 at 4, SD-13).
The student was also administered the Wechsler Individual Achievement Test Third Edition as part of the November 29, 2011 . With few exceptions, the most notable being -solving skills, his scores in all areas of academic achievement assessed lied within . Observation of the student’s approach to the assessment and his teacher’s reports on his also indicated that he exhibited significant and . Many of this appeared to reflect general rather than or (Ex. SD-3 at 5).
As to the student’s relationships with his peers, Mr. noted that:
[The student] appears to be a potentially cooperative student whose interests and concerns are and whose . He shows adequate interest in others and , although he seems to be interests. He has a strong sense of what others are supposed to do or how they are supposed to act, and he is quick to complain about peers’ actions. He clearly and seems to welcome and rely on the structure imposed by adults (Ex. SD-3 at 3).
The Behavior Assessment System for Children - Second Edition (“BASC-2") was also performed as part of the November 29, 2011 evaluation. The BASC-2 provides a measure of both adaptive and and can help assess a student’s development. It relies on cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it. 8 NYCRR § 200.1(r).
Behavioral intervention plan means a plan that is based on the results of a functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problem behavior occurs and intervention strategies that include positive behavioral supports and services to address the behavior. 8 NYCRR § 200.1(mmm). teachers’ descriptions of a student’s observable behavior in the classroom. The responses of the student’s teachers to the BASC-2 questionnaire indicated that the student exhibited more in school than is true of most students his age, but not necessarily at a level considered clinically significant. His teacher’s observations also suggest that the student
Given the magnitude and extent of the student’s and the presence of needs, Mr. recommended that the student continue to attend a special class program in a specialized school setting. Mr. also stated that the student required (Ex. SD-3 at 6).
In December of 2011, the student participated in an occupational therapy reevaluation. Based on the evaluation results, individual and group therapy services were recommended to improve the student’s (Ex. SD-9 at 3).
On December 20, 2011, the student participated in a evaluation. The student was able to walk in , such as , but his . He was able to negotiate stairs independently. He was also independent during . The student , however, in transitions, following directions and which group therapy was recommended (Ex. SD-11 at 5).
At a meeting held on December 21, 2011, the CSE continued to recommended that the student receive the majority of his instruction in a special class in a specialized (District ) school supplemented by related services of: special education transportation, adaptive physical education, group counseling, individual and therapy, group . (Ex. SD-
2 at 10, 13-14).
On a progress report from December 22, 2011, the student’s therapist recommended adding annual goals to the student’s IEP on and following directions (Ex. SD-10 at 1).
IV. POSITIONS OF THE PARTIES
A. The DOE
The student is properly classified as having an intellectual disability. The student is receiving a free appropriate public education in his special class program at . . The parent’s claim seeking the student’s placement in a State-approved nonpublic school for students with should be dismissed (R. 421-423).
B. The Parent
The student’s educational needs are not being met in his current program, where he has been special class. The student needs to be placed in an State-approved nonpublic school for students with in order to meet his educational needs (R. 424-425).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General Legal Standards
Two purposes of the IDEA 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 are protected.[6] See 20 U.S.C. § 1400 (d)(1)-(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).
A board of education 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); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school 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, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).
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. Classification
A board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE. See, e.g., Application of a Child with a Disability (Carmel Cent. Sch. Dist.), Appeal No. 99-86 (SRO November 10, 2000).
I find that the DOE has established that the student is properly classified as intellectually disabled. The CSE changed the student’s classification to intellectually disabled from emotional disturbance at a meeting held on December 21, 2011 (R. 171, 218-219; Exs. SD-2 at 14, P-B at 1). Psychological assessments from February 2010 (FSIQ 52) and December 2011 (FSIQ 51) establish that the student displays “significantly ” (R. 172; Exs. SD-3 at 4, P-G at 1). See 8 NYCRR § 200.1(zz)(7). Similarly, both the February 2010 Vineland-II and the December 2011 BASC-2 reflect deficits in the student’s adaptive behavior (Exs. SD-3 at 3, P-G at 2-3). See id. The student’s “significant management needs . . . are not indicative of severe emotional disturbance or social maladjustment . . . [but] reflect general immaturity and cognitive limitations” (Ex. SD-3 at 5).
Alternatively, I note that while the student has carried a (which is on the ) since September 2010, where a pupil has more than one handicapping condition, a board of education has the discretion to prioritize those conditions which adversely affect a student’s educational performance (Exs. SD-14, P-E, P-F at 7-8). See Application of a Child with a Handicapping Condition, 27 Ed. Dept. Rep. 102; Matter of Handicapped Child, 23 Ed. Dept. Rep. 191; Matter of Handicapped Child, 20 Ed. Dept. Rep. 557.
C. Appropriateness of 12:1:1 program
As noted earlier, 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. 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.
I find that the DOE’s recommended program provided the student with appropriate personalized instruction and sufficient support services to permit him to benefit educationally from that instruction (R. 172, 221; Ex. SD-2). Mr. the student’s special class teacher at , offered credible testimony that he provides the student with intensive instruction in functional academic skills, instruction in, and consistent reinforcement of, , to enhance his participation in the classroom (R. 172, 196-202, 205207, 209, 294; Exs. SD-3 at 6, SD-4, SD-5, SD-7, SD-8 at 3).
Alternatively, while the parent has alleged that the by other students in his special class, I find that the school personnel were not deliberately indifferent to, or failed to take reasonable steps to prevent, which would substantially restrict his educational opportunities. See T.K. & S.K. o/b/o L.K. v. New York City Dep’t of Educ., 779 F. Supp. 2d 289 (E.D.N.Y. 2011). When the student was “ (“ on , Assistant Principal stated that they investigated the incidents, took data on the observed, assigned the student a and ultimately removed from the classroom once it was determined that his needs could not be met in the special class (R. 210-212, 288-290, 332-335). Likewise, when the student was “targeted” by a female student with an autism spectrum disorder (“ .”), she was moved out of the classroom to another educational setting (R. 212-213, 252-254, 288-289). Following the exit of from the classroom, Mr. stated that “we have really seen [a] significant leap in [the student’s] academic and social progress. It’s been a huge leap” (R. 213, 254-255).
Given the reasonable efforts taken by Mr. and other school personnel to prevent bullying of the student at school by some of his peers, I find that placement of the student in a State-approved private school for students with is not warranted, and indeed, might be harmful to the student given the significant divergence of his educational needs from those students who primarily suffer from autism spectrum disorders (R. 168-169, 222223).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
(1) the parent’s claim for a change in the student’s classification from intellectual disability to autism is DENIED; and
(2) the parent’s claim seeking the student’s placement in a State-approved nonpublic school for students with is DENIED. Dated: August 15, 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 JUNE 12, 2012
PARENT
A. Individualized Education Program, 3/16/10, 18 pgs.
B. Individualized Education Program, 11/12/10, 16 pgs.
C. Progress Report, N. Lubarr, M.D., 3/16/10, 1 pg.
D. Note, V. Deutsch, M.D., 5/21/12, 1 pg.
E. Letter from M. Mentari, M.D., 5/21/12, 1 pg.
F. Evaluation, 9/8/10, 9 pgs.
G. Assessment, 2/4/10, 3 pgs.
DEPARTMENT OF EDUCATION
1. Due Process Complaint Notice/Impartial Hearing Request, 4/30/12, 2 pgs.
2. Individualized Education Program (IEP), 12/21/11, 17 pgs.
3. Evaluation, 12/20/11, 6 pgs.
4. Functional Behavioral Assessment, 11/15/11, 2 pgs.
5. , 11/15/11, 2 pgs.
6. School Wide Information System (Behavior Data), 2011/12, 3 pgs.
7. Teacher Report, L. Quintana, 5/1/12, 3 pgs.
8. Report to Families, 3/13/12, 3 pgs.
9. Evaluation, 12/12, 16/11, 4 pgs.
10. Student Progress Report, 12/22/11, 2 pgs.
11. Physical Therapy Evaluation, 12/20/11, 5 pgs.
12. Proposed Resolution Agreement, 5/18/12, 2 pgs.
13. Resolution Agreement, 11/9/11, 2 pgs.
14. Letter from M. Mentari, M.D., 4/23/12, 1 pg.
15. RISA-ATS Independent Student Attendance Record, 5/2/12, 1 pg.
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON JULY 20, 2012
PARENT
None
DEPARTMENT OF EDUCATION
None
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter twice in order to accommodate the availability of the parties’ witnesses and to allow for adequate time for my review of the hearing record. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the parties’ need for additional time to present their available witnesses, and allowing for adequate time for my review of the record on the extensive issues raised in the parent’s due process complaint, justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, the parties’ requests for extensions of the case compliance date were granted (Exs. IHO-I, IHO-II).
[3] Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(7).
[5] Functional behavioral assessment means the process of determining why a student engages in behaviors that impede learning and how the student’s behavior related to the environment. The functional behavioral assessment shall be developed consistent with the requirements in section 200.22(a) of this Part and shall include, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including
[6] 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.