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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: July 10, 2013
August 9, 2013
August 16, 2013
September 23, 2013
Actual Record Closed Date: September 30, 2013
Hearing Officer: Sharyn Finkelstein, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 10, 2013
FOR THE SUDENT
Legal Intern
Attorney
Supervising Attorney
Parent
FOR THE DEPARTMENT
(via telephone) District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 9, 2013
(via telephone) Attorney — Student
(via telephone) Attorney — Student
Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 16, 2013
Representative — DOE
(via telephone) Teacher Assigned — DOE
(via telephone) Attorney — DOE
Attorney — Student
Attorney — Student
Parents
(via telephone) — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 23 2013
FOR THE STUDENT
Attorney
Supervising Attorney
Parent (via telephone)
FOR THE DEPARTMENT OF EDUCATION
INTRODUCTION
I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1), concerning the education of (“”) for the 2013-2014 school year. (Exhibit A) The District was represented by Mr. and 1 the family was represented by their attorneys from The parent made a request for an interim order. I held a pendency hearing on July 10, 2013 and I issued an interim order. (IHO Exhibit I) Additional hearing dates were held on August 9, August 16th and concluded on September 23, 2013. I received the final transcript on September 30, 2013 and the record was closed. Appended to the record are lists of persons in attendance and of evidence submitted into the record on the various hearing dates.
The parties moved to extend the compliance date on various occasions in light of anticipated, testimony and availability of witnesses, specifically illness of a witness. (Tr.
41) 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 positions in accordance with the requirements of due process was greater than any delay in the resolution in this matter. Accordingly, the joint requests for extension of the compliance dates were granted.
BACKGROUND
is an year old girl who has been diagnosed with a on the . (Tr. 60) On November 7 2012 a meeting was held and an IEP was created for the 2013-14 school year. The IEP did not include a recommendation for during the . It did not include any recommendation for Education Teacher Support Services (SETSS). The parent seeks payment for In addition she seeks to have the IEP amended to reflect these services.
DEPARTMENT'S POSITION
They maintain that they created a valid IEP both procedurally and substantively which was a result of a meeting that took place on November 7, 2012. They argue that the placement is also appropriate. It is their position that they offered a FAPE to for the 2013-14 school year.
Ms. is employed at the New York City Department of Education, Committee on Education as a education teacher. She attended an annual review for and had conducted an observation of her during the 2012-13 school year. (Tr. 72) She described the class at as very well (Tr. 75) She described her as appropriate within the setting that she was in, during her observation of about to an hour.
PARENT POSITION
They argue that requires home based SETSS services and services. They maintain that these services are required over a period in order to . It is their position that the DOE has failed to provide with a FAPE.
They also had made a motion to dismiss because of the Department's failure to provide a timely response to the complaint. I find that the District's late response to the complaint did not prejudice the parent in any way and the motion to dismiss is denied.
1 Ms. represented the Department at the pendency hearing.
FINDINGS OF FACT AND CONCLUSION
One of the main purposes of the Individuals with Disabilities Education Act Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§1400-1482) is to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. §1400[d][1][A]. A FAPE includes education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401 [9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. §300.347.
A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the Individualized Education Program (IEP) developed by its Committee on Education (CSE) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate education services. (Application of a Child with a , Appeal 5No. 04-046;. The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one education teacher, or where appropriate not less than one education provider of such child (20 U.S.C.§ 1414[d][1][B).
A school district meets "IDEA's substantive requirements if a student's IEP is 'reasonably calculated to enable the child to receive educational benefit[s].'" Cerra, 427 F.3d at 194 (quotation omitted). The IEP need not be designed to maximize the student's potential, but rather the IDEA represents a "'basic floor of opportunity'" that must likely produce more than trivial advancement. See id. at 195 (quotation and other citations omitted).
Not all procedural errors render an IEP legally inadequate and result in the denial of a FAPE. The procedural error must either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a , Appeal No. 07-007.
In this case the CSE met on November 7. 2013 to develop the IEP for the 2013-14 school year for . The Department's only IEP witness Ms. recalled very little about the meeting. She could not shed any light on why services which had been provided in the past to were totally eliminated. She could not shed any light on why services which had been provided in the past had been totally eliminated. With respect to the elimination of twelve month services and the elimination of during the , there was no evidence presented by the District why this would be appropriate. In contrast there was evidence presented by the parent that this would result in for . The evidence indicates that even after a short break from services it takes a period of time to get back on task. There was undisputed evidence from 's mother and both her providers about her continued need for the services. There was undisputed evidence about the she has made. There was undisputed evidence about the 's having to things when she loses services. There is no evidence of any discussion that took place at the IEP meeting concerning the drastic reduction in services. I find that the District failed to meet their burden and find that the elimination of services and the reduction of services to program was not appropriate.
I find that the evidence indicates that still requires SETSS in order to and she requires both her SETSS services and and services for a period.
The parent is seeking services for the school year for the 2012-13 school year beginning July 1, 2013. I want to make it clear that the school year ends on July 1, 2014. Any request for services during that period of time ( of 2014) will have to be addressed during the IEP meeting for the 2014-15 school year. The parent also requests that the IEP be amended to include provisions of and continually, including the months. (Tr. 59) Any change or amendment to the IEP should be addressed with the CSE. will receive the requested services for this year and the CSE can review her needs next year at the IEP meeting.
ORDER
The DOE shall continue to provide with and through an beginning July 1, 2013 and through the school year, in a group of one.
The DOE shall continue to provide with home based instruction in accordance with a education teacher, hours per week on an . beginning July 1, 2013 and through the school year. Dated: October 8, 2013
SHARYN FINKELSTEIN ESQ.
Impartial Hearing Officer SF: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
PARENT
A Impartial Hearing Request June 27, 2013
4 pages
B Report January 27, 2010 3 pages
C Report May 31, 2011 3 pages
D Report June 4, 2011 3 pages
E October 17, 2011 8 pages
F IEP November 15, 2011
12 pages
G Duplicative
H Report May 15, 2012 2 pages
I Report 2012 2 pages J Duplicative
K IEP November 7, 2012
11 pages
L meeting 6 pages
M January 16, 2013 7 pages
N Report May 3, 2013 2 pages
O Report August 2013 2 pages
P Report August 2013 2 pages
Q Email to re due process Response August 12, 2013 2 pages
R Email to due process Response August 12, 2013 2 pages
S Fax to Ms June 27, 2013 1 page C1 Resolution Agreement October 5, 2011
2 pages
D1 Interim Order of Pendency November 15, 2012
5 pages
DEPARTMENT OF EDUCATION
1 Duplicative
2 IEP July 10, 2013
12 pages
3 Final Notice of Recommendation November 7, 2012
1 page
4 Notice of IEP Meeting July 10, 2013
4 pages
5 Update January 16, 2013 5 pages
6 Duplicative
7 Duplicative
8 Duplicative
9 Educational Report January 15, 2013 4 pages
10 Report August 10, 2012 1 page
11 Due Process Response July 19, 2013
3 pages
12 Due Process Response date stamped July 9, 2013
2 pages
IMPARTIAL HEARING OFFICER
I Pendency Decision July 2013
3 pages