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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: August 13, 2013
September 19, 2013
October 4, 2013
Actual Record Closed Date: October 4, 2013
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 13, 2013
ESQ., Attorney — Student
Parents
District Representative — DOE
NAMES AND TITLES OF PERSON WHO APPEARED ON SEPTEMBER 19, 2013
ESQ., Attorney — Student
Parents
District Representative — DOE
(via telephone) — DOE
NAMES AND TITLES OF PERSON WHO APPEARED ON OCTOBER 4, 2013
ESQ., Attorney — Student
Parents
(via telephone) — Student
District Representative — DOE
(via telephone) — DOE
I. INTRODUCTION - ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with 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 Department of Education (the “DOE”) in a due process complaint notice dated July 3, 2013. The primary issue to be determined at this hearing is whether or not the DOE shall be ordered to fund certain educational (“IEEs”) of the student at public expense (Ex. P-A).[1]
When a student in New York is eligible for education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one , 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 , 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, or educational placement of a student with a , or a student suspected of having a , 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 and certain other individuals with 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 forty-five (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
On August 26, 2013, I was appointed by the DOE to hear this matter following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). A pre-hearing conference with the parties was held on September 5, 2013 to clarify the issues and set dates for the impartial hearing. See 8 NYCRR § 200.5(j)(3)(xi). Hearings in this matter were thereafter held on September 19, 2013 and October 4, 2013.[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 July 3, 2013 hearing request, the student was years old and scheduled to start the (Ex. P-A). For the 2013/14 school year, the CSE recommended that the student participate in general education classes at in Brooklyn, supported by Education Teacher
During the 2012/13 school year, the student attended , where he was enrolled in a general education class.
By letter dated June 18, 2013, the parent requested educational of the student (Ex. SD-4). The DOE declined and filed a due process complaint on July 3, 2013 to defend the appropriateness of its (Ex. P-A).
IV. POSITIONS OF THE PARTIES
A. The DOE
The parent’s claim for educational at public expense should be denied. The and were appropriate (R. 264-265; Exs. SD-1, SD-2, SD-4, P-A).
B. The Parent
The conducted by the DOE following the parent’s January 25, 2013 referral were inadequate and the DOE should be ordered to provide the parent with an of the student at public expense. The DOE’s fail to indicate why the student Without pinpointing the specific nature of the student’s , it is not possible to identify the specific education supports that the student needs (R. 249-264; Exs. SD-4, P-C at 2).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General Legal Standards
Two purposes of the IDEA are: (1) to ensure that students with have available to them a free appropriate public education (“FAPE”) that emphasizes education and related services designed to meet their unique needs and prepare them for further education, employment and living; and (2) to ensure that the rights of students with and parents of such students are protected.[3] 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,
(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. 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 . 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 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 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); in determing, among other things the content of the student’s IEP. See 20 U.S.C. § 1414(b)(2)(A): 34 C.F.R. § 300_304(b(1)(ii): S.F. v New York City Dep’t of Educ. 2011
WI. 5419847.at *12 (.D.N.Y. Nov. 9, 2011); Letter to Clarke. 48 IDELR 77 (SEP 2007). In particular, a school district must rely on technically sound instruments that may the relative , in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately ed in all areas related to the suspected , including, where appropriate, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and of a student must be sufficiently comprehensive to identify all of the student's education and related services needs, whether or not commonly linked to the category in which the student has been classified, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
A school district must conduct an of a student where the educational or related services needs of a student warrant a re or if the student's parent or teacher requests a re, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district need not conduct a re more frequently than once per year unless the parent and the district otherwise agree, see 34 C.F.R. § 300.303(b)(1); 8 NYCRR § 200.4(b)(4). A CSE may direct that additional or s be conducted in order to appropriately the student in all areas related to the suspected . See 8 NYCRR § 200.4(b)(3).
Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an obtained by the school district. See 34 C.F.R. 300.502(a), (b); 8 NYCRR § 200.5(g)(1). Federal regulations define an IEE as “an conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question.” See 34 C.F.R. § 300.502(a)(3)(i); see also 8 NYCRR § 200.1(z). A parent, however, is only entitled to one IEE at public expense “each time the public agency conducts an with which the parent disagrees.” See 34 C.F.R. § 300.502(b)(5); 8 NYCRR § 200.5(g)(1). If the parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its is appropriate or that the obtained by the parent does not meet the school district criteria. See 34 C.F.R. §§ 300.502(b)(2)(i)-(ii); R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d 222, 234-235 (D. Conn. 2005); A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 549 (D. Conn. 2002). If a school district’s is appropriate, a parent may not obtain an IEE at public expense. See 34 C.F.R. § 300.502(b)(3); 8 NYCRR § 200.5(g)(1)(v).
The parent’s request for educational of the student at public expense is denied as I find that the CSE had adequate information of the student’s needs upon which to premise its program for the student for the 2013/14 school year (Exs. SD-1, SD-2, SD-4, P-D, P-E, P-F). See Application of a Student with a , Appeal No. 12-017 (SRO February 22, 2012). Following the CSE’s receipt of the parent’s January 25, 2013 referral, the CSE secured a February 20, 2013 social history, a March 7, 2013 , a April 12, 2013 and a May 15, 2013 of the student (Exs. SD-1, SD-2, SD-3, P-D, P-E, P-F). See 8 NYCRR § 200.4(b)(1). This initial of the student used a variety of tools and strategies to gather relevant information about that student including Exs. SD-1 at 1, SD-2 at 1-2, P-D, P-E). See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii). In developing its IEP for the student, the CSE relied on technically sound instruments, including the WISC-IV, the WIAT-III, the BASC-2 and the CELF-4 (Exs. SD-1, SD-2). See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). In order to appropriately the student in all areas of suspected , see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), the CSE secured a May 15, 2013 of the student, which is not typically a component of the initial battery (Ex. SD-2), cf. 8 NYCRR § 200.4(b)(1). Lastly, I find that the CSE’s of the student was sufficiently comprehensive to identify all of the student’s education and related service needs requiring measurable annual goals in the student’s IEP (Exs. SD-1, SD-2, P-D, P-E, P-F at 1-6). See 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
Alternatively, while the parent and deemed the CSE’s of the student to be inadequate and inappropriate based on the absence of a
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
The parent’s claim for educational of the student at public expense is DENIED. The parent may still secure such of the student, but not at public expense. Dated: October 18, 2013
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 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 13, 2013
PARENT
A. Due Process Complaint Notice/Impartial Hearing Request, 7/3/13, 3 pgs.
B. Notice of Appearance, 7/23/13, 1 pg.
C. Due Process Response, 8/1/13, 2 pgs.
D. , 2/10/13, 2 pgs.
E. , 3/7/13, 1 pg.
F. Individualized Education Program (IEP), 5/29/13, 13 pgs. G. H. I. J. K. L. M.
N. NYC DOE June Decision Letter, 6/13/13, 1 pg.
DEPARTMENT OF EDUCATION
1. , 4/12/13, 7 pgs. 2.
3. Parent Request - Initial , 1/25/13, 1 pg.
4. Parent Request , 6/18/13, 1 pg.
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 19, 2013
PARENT
O. [Reserved] P.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 4, 2013
PARENT
O. undated, 4 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. IHO’s Ruling on Witnesses, 9/13/13, 1 pg.
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
II. Confirmation of Extension, 9/18/13, 1 pg.
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 once in order to allow the parties adequate time to present their available witnesses on the extensive issues raised in the parent’s due process complaint. In considering that request, I weighed the cumulative impact of the relevant factors and found that allowing the parties adequate 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, the request for an extension of the case compliance date was granted (R. 106-108; Ex. IHO-II).
[3] 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;
[8] NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c). B. Adequacy of DOE’s /Request for IEE An of a student with a must use a variety of tools and strategies to gather relevant about the student, including information provided by the parent, that may assist