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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 17, 2013
July 24, 2013
August 26, 2013
August 28, 2013
September 10, 2013
Actual Record Closed Date: September 20, 2013
Hearing Officer: Daniel Ajello, Esq.
NAMES AND TITLES OF PERSON WHO APPEARED ON JULY 17, 2013
For the Student:
Juby Shapiro, Advocate
For the Department of Education:
Marilyn Zagha, DOE Representative (via telephone)
NAMES AND TITLES OF PERSON WHO APPEARED ON JULY 24, 2013
For the Student:
Juby Shapiro, Advocate (via telephone)
For the Department of Education:
Marilyn Zagha, DOE Representative
NAMES AND TITLES OF PERSON WHO APPEARED ON AUGUST 26, 2013
For the Student:
JUBY SHAPIRO, Advocate
Parent
Teacher (Via Telephone)
For the Department of Education:
Representative
NAMES AND TITLES OF PERSON WHO APPEARED ON AUGUST 28, 2013
For the Student:
For the Student:
JUBY SHAPIRO, Advocate
, Parent
For the Department of Education:
Representative
Principal (Via Telephone)
NAMES AND TITLES OF PERSON WHO APPEARED ON SEPTEMBER 10, 2013
For the Student:
JUBY SHAPIRO, Advocate
, Parent
For the Department of Education:
(Via Telephone)
INTRODUCTION
On July 8, 2013, I was appointed the Impartial Hearing Officer (IHO) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provision of the Individuals with Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.
Hearing to establish Pendency was requested by the parent attorney. On July 17, 2013, a pendency hearing was conducted. Pendency Order was issued July 29,
2013. (Ex I)
A pre hearing conference was conducted on July 24, 2013 and hearing was set to commence.
Appended to the record are lists of person in attendance and the documents received in evidence.
At hearing on August 28, 2013 the DOE representative requested, and was granted, an exteion of the compliance date, due to witness availability. Compliance date was extended from September 3, 2013 through October 3, 2013.
Regarding the services the parties agreed during the proceedings that the student would receive 4 in school and 1 . (T 202)
BACKGROUND
This matter was itituted by the impartial hearing request dated 06/30/2013. (Ex A)
Currently, through DOE placement and Pendency the student continues as a bilingual student with a diagnosis of
At most recent Individualized Education Plan (IEP) meeting the student was classified with a of Autism, placed at , the 10 weekly hours of service were n continued, and the related services were altered so that would be delivered individually 3 times weekly for 30 minute session, PT individually 3 times weekly for 30 minute session, and Speech 3 times weekly for 30 minute session and Speech 2 times weekly for 30 minute feeding therapy session. (Ex 1-1 & 1-16)
Parent alleges that the alteration in the services from as they exist in the pendency to how indicated in the IEP deny the student a Free and Appropriate Education (FAPE). (Ex A-1)
PARENT POSITION
, parent advocate, [resented the parent’s case.
Parent seeks continuation of services to provide a FAPE for the student. (Ex A)
Student had been receiving what is referred to as a dual recommendation service up through the time of the 05/06/2013 IEP meeting. She had been receiving services in her program, an approved New York State Non-Public School, and after school. (T 3031)
Parent alleges the IEP meeting held was n properly cituted, did n coider student’s , and therefore did n create an IEP that was reasonably calculated to provide a FAPE. (T 33-34)
Parent alleges she was n able to participate in the meeting since she could n include parties she wanted as participants, specifically the providers. (T 34-35)
In closing set forth that a FAPE could only be delivered to the student with the sought after outside related services in conjunction with the program. (T 196)
PARENT WITNESS
) set forth her professional and educational qualifications and testified as the student’s provider. (T 40-42)
has been providing services to the student for about five years, most recently providing hours weekly of service to the student. (T 43)
is in touch with and collaborated with the student’s teacher during the 2012-2013 school year, and communicates with her student providers at the school. (T 43-44 & 50)
detailed the programs she uses with the student. (T 46 – 49)
states that some providers are stuck on student behaviors making
PARENT WITNESS
DEPARTMENT OF EDUCATION POSITION
presented the DOE position on 08/26/2013 and 08/28/2013, setting forth that the DOE complied with procedural requirements, offered an appropriate placement and offered the student a FAPE. (T 26-28)
( ) represented the DOE on 09/10/2013.
In closing stated the parent and school were involved in the CSE review and resulting IEP or 05/06/2013, that all reports were reviewed and coidered at the meeting, the parent could have brought any party she wished to the meeting, and felt they could provide all appropriate services to the student. The IEP is reasonably calculated to address the student’s educational as well as behavioral issues. Therefore, the DOE IEP should be ratified. (T 193-195)
DEPARTMENT OF EDUCATION WITNESS
() reviewed her professional and educational qualificatio and testified as principal of . (T 124-125)
identified the related services page of the IEP. (T 126, Ex 1-16)
can provide the services reflected in the IEP. (T 127)
is aware of the services being received by the student outside of , and has read the related reports. (T 128)
was asked if she or her staff can offer an opinion as the whether or n the services delivered outside of should continue. “That's somewhat of a difficult question. It also puts me in a difficult situation, because I received nice from the State of New York-- State Education Department that any IEP--any related services that are on an IEP I'm supposed to provide. If the Hearing Officer decides to give her after school, that's be on my IEP, because I can't provide it.” (T 129)
indicated that if the IEP contained any services that could n be delivered at she would have to ask the parent to find anher school. This includes students who are issued
RSAs. (T 130-131)
does n enter into discussion about services delivered outside of . (T 132)
continued that she is only allowed to minute increments, for related services such as , and only deliver one such service per day. (T 133)
indicated in her testimony that each, is the maximum amount of service that can be delivered by relative to related services such as . (T 134-135 & 137)
DEPARTMENT OF EDUCATION WITNESS
() reviewed her professional and educational qualificatio and testified as . (T 146-147)
identified the IEP of 05/06/2013, and confied her attendance at said meeting. (T 148-149)
provided reports for the IEP meeting, prior to the meeting, including report, report and an report. (T 152, Ex 2, 3, 4, 5 & 6)
Said reports were coidered at the meeting. (T 152)
Sufficient infoation was available to conduct the CSE review. (T 153)
does n recall any disagreement with the classification (T 153)
Student was recommended to continue at . does n recall any disagreement. (T 153)
Related services as indicated in the IEP were discussed at the review meeting. does n recall any dispute regarding these services. (T 155, Ex 1-16)
was involved in the discussion of the related services. (T 156)
Team believed the recommended 8:1:2 program was sufficient to meet the student’s educational needs. (T 157)
did n voice any objection. (T 158)
was asked who makes the ultimate decision at the CSE review. stated that she goes along with the related service provider recommendation. (T 163)
was asked to review the Report. (Ex 7)
was n at the meeting, but the parent is always aware that they could invite whomever they like, to the meeting. (T 164-165)
does n recall the parent requesting be called. (T 165)
does n believe the student requires a plan. continued that the school handles this through a school wide program. (T 168)
is n trained in and does n recall if the student was receiving at . (T 169)
states that the provider report was coidered at the time of the meeting. (T 172)
If the team felt the recommended services were appropriate it would have been recommended and included in the IEP. (T 175-176)
continued that since the report was at the CSE review she assumes it was discussed. (T 179)
does n recall any specific discussion regarding the services outside of school and states: “I'm just assuming because we had these reports in front of us because we coider all the reports so I'm just making assumption.” (T 180)
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Education Act (IDEA) (20 U.S.C. §§ 1400- 1482) are (1) to ensure that students with have available to them a FAPE that emphasizes education and related services designed to meet their needs and prepare them for further education, employment, and independent living; and (2) to eure that the rights of students with and parents of such students are prected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A student is offered a FAPE 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
An appropriate educational program begin with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [ning that a CSE must coider, among her things, the "results of the initial or most recent " of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's enabling him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a , Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a , Appeal No. 04046; Application of a Child with a , Appeal No. 02-014; Application of a Child with a , Appeal No. 01-095; Application of a Child Suspected of Having a , Appeal No. 93-9).
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 consideration support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. 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. (Educ. Law § 4404[1][c]).
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 (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to peit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). IEP of 05/06/2013 and Related Services
I find that the IEP, dated May 6, 2013, was n designed to meet needs of the student and prepare this for further education, employment, and independent living. (Ex 1)
In school states that the provider and hers have been having issues with behavior. (T 107)
Testimony also included that does n believe the student requires a plan and that the school handles this through a school wide program. (T 168)
No specific information was provided as to how the school addresses behavior.
Student IEP has a goal of appropriate peer interaction with a criteria. believes this can be an appropriate goal if broken down the right way. states that is as a criteria and it should be (T 76, Ex 1-8)
Despite the evidenced behaviors the IEP sets forth that the student does n need strategies, positive , supports and her to address behaviors that impede or that of hers. (Ex 1-2)
The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, , and educational placement of the child" (20 U.S.C. § 1415[b][1]). Federal and State regulation governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5[d]). School districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does n amount to a denial of meaningful participation (see P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y. 2008] ["A professional disagreement is n an IDEA violation"]; Sch. for Language and Communication Development v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] The consideration of possible recommendation for a student, prior to a CSE meeting is n prohibited as long as the CSE understands that changes may occur at the CSE meeting (see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]; Nack v. Orange City Sch. Dist., 454 F.3d 604, 610 [6th Cir. 2006] ["predetermination is n synonymous with preparation"]; Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 857-60 [6th Cir. 2004]; B.O. v. Cold Spring Harbor Cent. Sch. Dist., 807 F. Supp. 2d 130, 136 [E.D.N.Y., 2011]; A.G. v. Frieden, 2009 WL 806832, at *7 [S.D.N.Y. Mar. 26, 2009]; P.K, 569 F. Supp. 2d at 382-83; Danielle G. v. New York City Dep't of Educ., 2008 WL 3286579, at *6-*7 [E.D.N.Y. 2008]; M.M. v. New York City Dep't of Educ., 583 F. Supp. 2d 498, 507 [S.D.N.Y. 2008]; W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 147-48 [S.D.N.Y. 2006]; Application of the Dep't of Educ., Appeal No. 11-051; Application of the Dep't of Educ., Appeal No. 10-070; see also 34 CFR 300.501[b][1], [3]; 8 NYCRR 200.5[d][1], [2]). A key factor with regard to predetermination is whether the district has "an open mind as to the content of [the student's] IEP" (T.P., 554 F.3d at 253; see M.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 [S.D.N.Y. 2009]).
Evidence shows that the CSE review and resulting IEP were conducted under a variety of presumption that prevented the parent from fully participating in the development of an appropriate IEP.
Essentially, the IEP developed could n be changed at the CSE meeting beyond restriction reported by the parent and evidenced in various party testimony.
states that the team did n consider the request for the continued services. (T 86)
IEP nes concern of wanting the student to receive for outside but no her parent concerns. This evidences a lack of discussion regarding the services sought by the parent. (T 86-87, Ex 1-22)
states that she was told: “Well, the school had told me--I had spoke to the school back and forth numerous times before the IEP, at the IEP, and they said something that they received a letter that they're n allowed to give--n allowed to accept the child if they have any , but I never saw that letter, and I requested for it, and they said they can't show it to me.” (T 89)
Testimony from the representative also indicated that the outside services, including were n part of the IEP meeting in question. “…because I received nice from the State of New York--State Education Department that any IEP--any related services that are on an IEP I'm supposed to provide. If the Hearing Officer decides to give her two after school, that's n--that can't be on my IEP, because I can't provide it.” (T 129)
indicated that if the IEP contained any services that could n be delivered at she would have to ask the parent to find anher school. This includes students who are issued . (T 130-131)
does n enter into discussion about services delivered outside of . (T 132)
continued that they can only offer a maximum of Testimony from the DOE representative at the IEP meeting included that all services were discussed and reviewed though no disagreement took place. (T 153)
also testified that was involved in discussion regarding related services. However, testimony reflects that this testimony could only address services delivered by . This restriction on discussion prevented a full discussion of and services to address those needs. (T 132)
testified that if the team felt the recommended services were appropriate it would have been recommended and included in the IEP. continued that since the report was at the CSE review she assumes it was discussed. (T 175-176 & 179)
Ultimately does n recall any specific discussion regarding the services outside of school and states: “I'm just assuming because we had these reports in front of us because we consider all the reports so I'm just making assumption.” (T 180)
was asked who makes the ultimate decision at the CSE review. stated that she goes along with the related service provider recommendation. (T 163)
Evidence does n support the assertion by that the provider reports were reviewed and discussed and that she goes along with provider recommendation.
report recommends services continue as indicated in the IEP, which at the time recommended week. However, IEP drafted recommends , therefore n following the and reducing the service. No justification is presented for this alteration in service. (Ex 42, C 15 & 1-16)
While the parties resolved the dispute regarding the delivery of the disputed services, this infoation provides additional evidence regarding the conduct and procedures followed during the CSE review.
Regarding the outside services detailed her services for the student and related progress. This appears to be relevant and important infoation necessary to properly conduct a CSE review and deteine appropriate services for the student. (T 46-49, 69-72 & 59-65 & 69)
believes her services are necessary for the student: “If she did n have me in the home, it would definitely n be sufficient, and I know that, because you know, before I came, she wasn't really so at home. With my help with the , then I believe that , you know, is okay for her to be in, is a proper placement for her, but only with my help at home.” (T 45)
was n contacted regarding her delivery of services or for her input relative to her report and student needs going forward. wanted to participate in the student’s IEP meeting, but was n called. (T 54-55)
provided credible testimony regarding her IEP meeting attendance. appeared by phone, Attempted to have the outside and provider take part in the meeting and was denied. (T 79 & 83)
Parent testimony stated that services currently received by the student, and sought presently at hearing, could n be discussed at the IEP meeting in question. (T 31-31 & 47)
By failing to include a discussion of the home services the IEP team could n coider, among her things, the academic, developmental, and functional needs of the student. Therefore the resultant IEP could n provide appropriate services and goals to enable the student to make progress.
Parent could n adequately take part in the CSE review when requested parties were n allowed to attend and services outside of could n be discussed or coidered. (T 54 & 55, 89 & 129-131)
Evidence clearly supports the continued services sought by the parent for her child.
Discontinuation of some student services is the result of procedure and self imposed limits upon discussion and services as testified to by the parent and .
I find equitable consideration support the parents claim.
Parent appeared at the requested CSE review and provided copies of pertinent documents to the school.
3. This decision is subject to appeal and review by the State Review Officer. Dated: September 26, 2012
DANIEL AJELLO, ESQ.
Impartial Hearing Officer DA:gc
PLEASE TAKE NICE
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 nice of intention to seek review shall be served upon the school district n 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 nice of intention to seek review is a waiver of the right to appeal this decision.
Direction and sample fos for filing an appeal are included with this decision. Direction and fos can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Due Process Request dated June 30th, 2013, 4 pages B Impartial Hearing Officer's Finding of Fact and Decision, in case 139366, 2/13/13, 15 pages C IEP, 6/15/2012, 21 pages
DEPARTMENT OF EDUCATION
1 IEP, dated 5/6/13, 23 pages 2 , dated 5/13, 3 pages 3 Report, dated 4/13, 2 pages 4 Report, 5/13, 2 pages 5 Report, 5/13, 1 page 6 report, 5/1/13, 3 pages 7 Report, dated 4/29/13, 3 pages
HEARING OFFICER
I Pendency Order, dated 7/29/13, 9 page