NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 15, 2011
December 13, 2011
May 2, 2012
Actual Record Closed Date: May 23, 2012
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 15, 2011
Advocate — Student
DR. , School Psychologist, Chairperson’s Designee, CSE (via telephone)
NAMES AND TITLES OF PERSON WHO APPEARED ON DECEMBER 13, 2011
ESQ., Attorney — Student
MARILYN SHOUELA, — Parents
Chairperson’s Designee, CSE — DOE
Special Education Teacher, CSE (via telephone) — DOE
NAMES AND TITLES OF PERSON WHO APPEARED ON MAY 2, 2012
Advocate — Student
Parents
Teacher, (via telephone) — Student
Chairperson’s Designee, CSE — DOE
DR., School Psychologist (via telephone) — DOE
I. 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 advocate for the student and the parent in a due process complaint notice dated May 23, 2011. 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 and/or directly pay for costs associated with the student’s unilateral private placement at for the 2010/11 school year (Ex. P-
A).[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 24, 2011. In a letter dated June 9, 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). Hearings in this matter were held on: August 15, 2011; December 13, 2011; and May 2, 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 hearing request, the student was and educationally classified as (Exs. SD-1 at 1, P-A).[3] For the 2010/11 school year, the student attended the at (Exs. P-A, P-B, P-F, P-H, P-I, P-J). The Commissioner of Education has not approved Gesher Yehuda as a school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. 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, P-A). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).
For the 2009/10 school year, when the student , a special education , New York. The student’s IEP at that time recommended his placement in a special class program ( ) and related services of , . The student’s mother reported that the student was doing fine academically at and that he had progressed nicely in that program and followed directions (Exs. SD-2 at 1, SD-6 at 1).
On a January 16, 2010 progress report, the student’s counselor reported that the student was school assignments (Exs. SD-1 at 5-6, SD-2 at 6-7, SD-6).
In an April 9, 2010 related service student progress report, the student’s therapist reported that the student:
[P]resents with as well as . [The student] is usually easy-going and participates in and attends to a variety of and group activities with minimal prompting. When he is . [The student] has made considerable gains in his expressive language in terms of his language use, however, he continues to and articulation. [The student] has improved as far as his ability to expand on a topic using descriptive language and communicate his wants and needs. He does not always speak full sentences. In . The student displays many good receptive language skills including following simple multi-step verbal directives and answering questions about a short story or a real life experience. [The student] is able to make inferences, identify objects by function, and understand analogies pictorially. He does not always respond appropriately to “wh” questions. [The student]
displays comprehension of concepts including “similar/different” and “most favorite/least favorite.” When he . [The student] has excellent phonological awareness skills (Ex. SD-3 at 1).
The student’s recommended for the 2010/11 school year that the student continue to receive “to foster age appropriate pragmatic, receptive and expressive language skills and to ” (Ex. SD-3 at 2).
As part of a June 22, 2010 reevaluation, the Stanford-Binet Intelligence Scales: Fifth Edition (“SB5") was administered to the student. On the SB5, the student obtained a Full Scale IQ score of percentile), which placed him within the range of cognitive functioning. He received a Nonverbal IQ score of ) which fell within the range. He also obtained a Verbal IQ score of percentile) which fell within the range (Exs. SD-1 at 3, SD-2 at 3, 6).
The student was also administered the Wechsler Individual Achievement Test Second Edition (“WIAT-II”) as part of the same June 11, 2010 reevaluation. On the Word Reading subtest, the student’s ability to read words fell on the level. On the Reading Comprehension subtest, he was able to read sentences and passages and answer questions that assessed skills such as recognizing detail and making inferences on a middle level (Exs. SD-1 at 3, SD-2 at 6).
On the Numerical Operations subtest, the student was able to solve written math problems that required: multi-digit addition without renaming; basic subtraction; basic multiplication; and basic division on a beginning second grade level. He solving written math problems that required: multi-digit addition with renaming, multi-digit subtraction with and without regrouping, and multi-digit and single-digit multiplication. On the Math Reasoning subtest, the student was that required: using grids and graphs to make comparisons, draw conclusions, or answer questions; using whole numbers to describe quantities; using geometric and spatial reasoning; creating and solving addition and subtraction problems using whole numbers; patterns; time; and money. His score ( ), placed him on level. His solving math word problems that required solving: multiplication and division problems using whole numbers, fractions, and probability (Exs. SD-1 at 3, SD-2 at 6-7).
On the Spelling subtest, the student was able to spell words on a grade level. , the student presented as a on completing what was asked of him (Exs. SD-1 at 3, SD-2 at 7).
On a June 17, 2010 related service progress report, the student’s stated that the student had and skills. The student’s percent ( . The student and . While the student had made moderate progress toward his IEP goals, the physical therapist recommended that the student continue to receive physical therapy for the 2010/11 school year to address school (Exs. SD-1 at 7, SD-5).
On a June 21, 2010 related service progress report, the student’s occupational therapist stated that the student , . The student . The student did not demonstrate . The student that required problem-solving. The recommended continued therapy to address the (Ex. SD-4).
At a meeting held on June 21, 2010, the CSE developed an IEP for the student for the 2010/11 school year. The CSE recommended that the student receive instruction in a special class in a community school. The CSE also recommended that the student receive related services of: (3) times per week for thirty (30) minutes per session; individual , one (1) time per week for thirty (30) minutes per session; therapy, three (3) times per week for thirty (30) minutes per session; (2) times per week for thirty (30) minutes per session; and , one (1) time per week for thirty minutes per session. Adaptive physical education, program modifications and test accommodations were also recommended for the student by the CSE (R. 42; Exs. SD-1 at 1, 4-8, 20, 22).
In an August 10, 2010 Final Notice of Recommendation, the DOE identified in Brooklyn as the student’s placement for the 2010/11 school year (Ex. SD-7).
In a note dated September 21, 2010, the parent rejected the DOE’s proposed program for the student and indicated that she would be placing the student at Gesher at public expense for the 2010/11 school year (Ex. P-D). This position was reiterated in a letter dated October 5, 2010 from the parent’s advocate to the CSE (Ex. P-E).
IV. POSITION OF THE PARTIES
A. The DOE
The parent’s tuition reimbursement claim should be denied. The DOE offered the student a free appropriate public education for the 2010/11 school year. was an for the student. The relevant equities also favor the DOE (R. 34-36, 208-210).
B. The Parent
The DOE should be ordered to reimburse the parent and/or directly pay for the student’s tuition to for the 2010/11 school year. The DOE denied the student a free appropriate public education for the 2010/11 school year. The DOE’s proposed class was too large and the other students enrolled in that class were too advanced academically to constitute an appropriate functional group. The IEP goals developed for the student in the areas of reading, math, physical education and occupational therapy were deficient. was an appropriate program for the student and the relevant equities support a reimbursement award. The DOE should also be ordered to pay for school bus transportation to and from Gesher Yehuda (Ex. P-A).
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 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).
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 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. Functional Grouping
The parent alleges that the DOE’s proposed class for the student was too large and the other students enrolled in that class were too advanced academically to constitute an appropriate functional group (Ex. P-A).
State regulations require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs. See 8 NYCRR §§ 200.1(ww)(3)(ii), 200.6(a)(3), (h)(3). State regulations further provide that determinations regarding the size and composition of a special class shall be based on the similarity of the individual needs of the students according to: levels of academic or educational achievement and learning characteristics; levels of social development; levels of physical development; and the management needs of the students in the classroom. See 8 NYCRR §§ 200.1(ww)(3)(i)(a)-(d), 200.6(h)(2). The social and physical levels of development of the individual students shall be considered to ensure beneficial growth to each student, although neither should be a sole basis for determining placement. See 8 NYCRR §§ 200.6(a)(3)(ii), (iii). Further, the management needs of students may vary and the modifications, adaptations and other resources are to be provided to students so that they do not detract from the opportunities of the other students in the class. See 8 NYCRR § 200.6(a)(3)(iv). State regulations also require that a “district operating a special class wherein the range of achievement levels in reading and mathematics exceeds three years shall . . . provide the [CSE] and the parents and teacher of students in such class a description of the range of achievement in reading and mathematics . . . in the class, by November 1st of each year.” See 8 NYCRR 200.6(g)(7). However, State regulations do not preclude a grouping of students in a classroom when the range of achievement levels in reading and math would exceed three (3) years. See Application of the New York City Dep’t of Educ., Appeal No. 08-018 at 13-14 (SRO May 19, 2008); Application of the Bd. of Educ. of the Granville Cent. Sch. Dist., Appeal No. 06-010 (SRO April 7, 2006).
In this case, a meaningful analysis of the parent’s claim with regard to functional grouping would require me to determine what might have happened had the DOE been required to implement the student’s IEP. While parents are not required to first try out the school district’s proposed program before seeking tuition reimbursement, see Forest Grove, 129 S. Ct. at 2496, I note that 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 be neither practical nor appropriate, see Application of the Dep’t of Educ. of the City of New York, Appeal No. 11-040 at 22 (SRO June 8, 2011). The Second Circuit has also determined that, unlike an IEP, school districts are not expressly required to provide parents with class profiles. See Cerra, 427 F.3d at 194. The IDEA and State regulations provide parents with the opportunity to offer input in the development of a student’s IEP, but they do not permit parents to direct through veto a school district’s efforts to implement each student’s IEP. See T.Y. v. New York City Dep’t of Educ., 584 F.3d 412, 420, cert. denied, 130 S. Ct. 3277 (2010). A delay in implementing an otherwise appropriate IEP may form a basis for finding a denial of a FAPE only where the student is actually being education under the plan, or would be, but for the delay in implementation. See E.H. v. Board of Educ., 2008 WL 3930028, at *11 (N.D.N.Y. Aug. 21, 2008), aff’d, 2009 WL336627 (2d Cir. Oct. 16, 2009). The sufficiency of the DOE’s offered program in this case is determined on the basis of the IEP itself. See R.E. v. New York City Dep’t of Educ., 2011 WL 924895, at *10 (S.D.N.Y. Mar. 15, 2011). If it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of FAPE due to the failure to implement it. See id.
Thus, in this case, the issue of the functional levels of the students in the assigned school is in part speculative because the parent did not accept the services recommended by the CSE in the IEP or enroll the student in the public school and the DOE was not required to establish that the student had been grouped appropriately upon the implementation of his IEP in the proposed classroom (Exs. SD-1, SD-7, P-A, P-D, P-E, P-I).
Even assuming, arguendo, that the student had attended the CSE’s recommended program, the evidence in the hearing record nevertheless shows that the special class at the assigned school provided the student with suitable grouping for instructional purposes that was designed to meet the student’s needs. Testimony by Dr. , a school psychologist assigned to , indicated that the student’s instructional reading levels of in word reading and in reading comprehension, and instructional math levels of in numerical operations and in math reasoning, fell within the range of instructional reading levels of the students in special class at during the 2010/11 school year which ranged from secondto-third grade (R. 101, 120-121; Ex. SD-1 at 3). His testimony also shows that the student’s academically-relevant behavior, i.e., , was consistent with the profile of the other eight (8) students attending the assigned class during the 2010/11 school year (R. 104-105, 109; Ex. SD-1 at 5)
Accordingly, I find that the hearing record, in its entirety, does not support the conclusion that, had the student attended the assigned school, the DOE would have deviated from substantial or significant provisions of the student’s IEP in a material way and thereby precluded the student from the opportunity to receive educational benefits. See Rowley, 458 U.S. at 206-07; A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 (2d Cir. March 23, 2010); Cerra, 427 F.3d at 192.
C. Adequacy of IEP Goals
The parent alleges that the annual goals developed for the student did not adequately address his particular needs, especially in reading, math, physical education and occupational therapy (Ex. P-A at 2).
An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student’s needs the result from the student’s disability to enable the student to be involved in and make progress in the general education curriculum, and meet each of the student’s other educational needs that result from the student’s disability. 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), 200.16(3)(3). 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 by the committee. See 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3).
I find that the CSE’s IEP for the student for the 2010/11 school year established annual educational goals which were reasonably related to his educational deficits. The student’s IEP included annual goals in reading, math, adaptive physical education, counseling, therapy and which were consistent with those educational deficits identified in the student’s evaluations and described what he could reasonably be expected to accomplish within a ten month period (R. 49; Exs. SD-1 at 9-16, 19, SD-2, SD-3, SD-4, SD-5, SD-6). The annual goals included the evaluative criteria, evaluation procedures and schedules to be used to measure the student’s progress toward meeting each annual goal (Ex. SD-1 at 9-16, 19). See 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3).
D. Transportation
The parent’s request for reimbursement for transportation costs to and from during the 2010/11 school year is denied (Ex. P-A at 3).
Part B of the IDEA and its implementing regulations do not require local educational agencies (“LEAs”), i.e., school districts, to provide transportation to and from school for a child with a disability unilaterally placed by his or her parents in a private school. See 34 C.F.R. § 300.139(b)(1)(ii); Letter to Luger & Weinberg, 58 IDELR 199 (OSEP Dec. 6, 2011).
The New York Education Law, in contrast, requires that school districts provide a disabled student with suitable transportation up to a distance of fifty (50) miles to and from a nonpublic school for the purpose of receiving services or programs similar to those recommended by the local CSE in the student’s IEP. See N.Y. Educ. Law § 4402(4)(d); Application of a Student with a Disability (Huntington Union Free Sch. Dist.), Decision No. 13,209, 33 Ed. Dept. Rep. 712, 715 (Comm’r of Educ. June 22, 1994).
As there were no bills or other evidence of the actual transportation costs incurred by the parent, I must dismiss this aspect of the parent’s claim in the absence of any evidence of such expenditures. See Application of the Bd. of Educ., Appeal No. 01-012 (SRO Dec. 19, 2001).
E. Conclusion
Based on the foregoing evidence in the hearing record, I find that the DOE offered the student a FAPE for the 2010/11 school year. Having determined that the DOE offered the student a FAPE for the 2010/11 school year, it is not necessary to reach the issues of whether the student’s private placement at was appropriate or whether equitable considerations support the parent's tuition reimbursement claim and the necessary inquiry is at an end. See M.C. v. Voluntown, 226 F.3d 60, 66 (2d Cir. 2000); Walczak, 142 F.3d at 134.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
(1) The parent’s claim for tuition reimbursement is DENIED; and
(2) The parent’s May 23, 2011 due process complaint is hereby DISMISSED. Dated: May 6, 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 AUGUST 12, 2011
PARENT
A. Due Process Complaint Notice/Impartial Hearing Request, 5/23/11, 4 pgs.
B. Program Description, , undated, 4 pgs.
C. [Reserved]
D. Final Notice of Recommendation (with parent note), 8/10/10, 2 pgs.
E. Letter to Committee on Special Education (Ten Day Notice), 10/5/10, 2 pgs.
F. , Class Schedule, Mrs. Class #4, 2010/11, 1 pg.
G. Class Profile, 2010/11, 1 pg.
H. Student Progress Report, Mrs. , 6/2011, 1 pg.
I. , 2010/11 Enrollment Contract, 1 pg.
J. , Affidavit of Payments, 7/27/11, 1 pg.
K. Proof of Payment, 2010/11, 7 pgs.
L. Certificate of Marriage, 3/7/02, 1 pg.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Letter to Parties from IHO, 6/9/11, 5 pgs.
DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 13, 2011
PARENT
None
DEPARTMENT OF EDUCATION
1. Individualized Education Program, 6/21/10, 23 pgs.
2. Evaluation, 6/11/00, 8 pgs.
3. Related Service Student Progress Report ( ), 4/9/10, 2 pgs.
4. Report, 6/21/10, 1 pg.
5. Related Service Student Progress Report (PT), 6/17/10, 1 pg.
6. Special Education, Student Progress Report for Annual Review, 1/16/10, 2 pgs.
7. Final Notice of Recommendation, 8/10/11, 1 pg.
8. Contact Sheet, various dates, 1 pg.
IMPARTIAL HEARING OFFICER
II. Confirmation of Extension, 6/23/11, 1 pg.
III. Confirmation of Extension, 8/15/11, 1 pg.
IV. Confirmation of Extension, 9/23/11, 1 pg.
V. Confirmation of Extension, 11/7/11, 1 pg.
VI. Confirmation of Extension, 12/8/11, 1 pg.
DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 13, 2011
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
VII. Confirmation of Extension, 1/6/12, 1 pg.
VIII. Confirmation of Extension, 2/9/12, 1 pg.
IX. Confirmation of Extension, 3/7/12, 1 pg.
X. Confirmation of Extension, 4/20/12, 1 pg.
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
IMPARTIAL HEARING OFFICER
XI. Confirmation of Extension, 5/2/12, 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 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 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, requests for an extensions of the case compliance date were granted (R. 20-21, 82-83, 206-208; Exs. IHO-II, IHO-III, IHO-IV, IHO-V, IHO-VI, IHO-VII, IHO-VIII, IHO-IX, IHO-X, IHO-XI).
[3] Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(11).
[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.