New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: September 4, 2013

November 7, 2013

Actual Record Closed Date: November 25, 2013

Hearing Officer: Marc Weiner, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 4, 2013

Attorney — Student

Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 7, 2013

Advocate for — Parents

Advocate for Parents (Via Telephone) — Student

Parents

District Representative — DOE

An impartial hearing was held in the for a student who has been classified as having a disability pursuant to the Individuals Disability Education Act (IDEA) 20 U.S.C. 1415 (f) (1). The hearing was held on September 4 and November 7 2013. This Impartial Hearing Officer was appointed to hear the case on August 23, 2013. The Impartial Hearing Office assigned this case, case number .

The closing date was November 18, 2013 the date the parents’ brief was submitted

The parents were represented by Ms. as advocates. Ms. appeared for the District.

In the parents’ impartial hearing request the parent alleges that the Department of Education (DOE) held an annual review meeting and drafted an Individualized Education Program (IEP) for the 2013-2014 school year. The parent requested a Related Service

A pendency hearing was held on September 4, 2013 at which time the parent submitted two documents. They were the August 22, 2013 impartial hearing request and although listed as a Hearing Officer’s Decision for case , was in fact a statement of agreement and order.

On the November 7, 2013 hearing date, neither party presented any evidence. This IHO requested a NYC IEP from the District representative and the IEP from . These documents were incorrectly marked A and B by the District Representative on the cover sheet which this IHO presented to her. The cover sheet read IHO evidence. In that A and B were used previously as designated documents; this IHO is remarking the documents requested by him as I and II. Roman numeral I consists of two pages of an IEP for the 2012-2013 school year from the DOE and Roman numeral II consists of nine pages of an IEP from the District. The NYC IEP given to this IHO by the District representative was for the 2012-2013 school year and not the year in question, the 2013-2014 school year. The parents claim in its request that there was a 2013-2014 IEP but did not submit it into evidence. The IEP lists the date of implementation as 9/9/13 with a meeting date of 3/20/13. The transcript does not list any documents presented by the parents or the District, but this IHO took into evidence as his exhibits, the IEP (now marked Roman numeral II and the two pages of the 2012-2013 District IEP as Roman numeral I) and the 2012-2013 pages of the DOE IEP.

The IEP lists the following services:

The record will reflect on the hearing date both sides had the opportunity to submit whatever documents they deemed relevant.

The NYC District’s argument during the entire course of the hearing, which included the pendency hearing, was not that the student should not receive the services listed on the DOE IEP, but that whatever services the child should receive is the responsibility of the District. The parent argued that the NYC District is responsible for providing the services listed on the IEP it created.

I find that neither side presented any factual disputes and that the issue is a legal question.

in her brief argued for the parents that in Appeal No. 11-011, “The discussed Education Law section 3602-c and referred to a “necessary condition precedent” for the determine the student’s eligibility to receive special education programs and relates services and develop an IEP for the student, it was necessary that the district of location had already determined through the child find process that the child needed special education and related services.”

DECISION:

The purpose behind the Individuals with Education Act (IDEA) 20 U.S.C. sections 1400-1487 is to ensure that students with have available to them a free appropriate public education (FAPE). A FAPE consists of special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive IEP (20 U.S.C. 1401 [8][D]; 34 C.F.R. 300.13. A board of education may be required to pay for education services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate and equitable considerations support the parent’s claim (Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 [1985]). The parents’ failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its 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]).

While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist. 346 F.3d 377, 381 [2nd Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at 10 [S.D.N.Y. Feb 9, 2007]). 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 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 (20 U.S.C. section 1415 [f][3][E] [ii]; 34 CFR 300.513 [a][2]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007].

The IDEA directs that an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. section 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” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of education benefits that must be provided through an IEP” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2nd Cir. 1998]; The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walzak at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2nd Cir 1989]. Additionally, school districts are not required to “maximize” the potential of students with (Rowley at 189, 199; Grim at 379). 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” (Walczak at 130; Perricelli at 15) The IEP must be “reasonably calculated to provide some ‘meaningful benefit”(Mrs. B. v. Milford Bd. Of Educ., 103 F.3d 1114, 1120 [2nd Cir. 1997]). The student’s recommended program must also be provided in the LRE (20 U.SW.C. section 1415[a][5][A]).

The District cites NYS Education Law section 3602-c for the proposition that when a parent enrolls a student in a private school, it is the District of location that is responsible for developing an IESP and providing the services to that student. Specifically section b. (1) “…the CSE of the school district of location shall develop an individualized education service program for the student based on….”

I find that the Appeal cited by the parents, is easily distinguishable and does not stand for any of the propositions the parents are arguing in this case. In the found that the District of residence must determine a student’s eligibility for special education programs and related services. In this case the NYC District did find the student eligible for services and did develop an IEP. The same for the District of location (It held an IEP meeting and issued an IEP for the school year in question). The parent did not contest the IEP presented at the hearing. There was no evidence presented that the parent ever contested the ’ IEP. Again the parent did not present the 2013-2014 IEP at the hearing, yet the parent did not contest the services listed in either the 2012-2013 IEP or the 20132014 IEP. The parents’ claim the NYC District did not implement a portion of their IEP, in particular the services portion by giving the parents .

The District IEP is dated March 20, 2013 and that IEP, which is the IEP for the school of location, clearly offered fewer services than the NYC IEP. In that this IHO was not given the NYC IEP for 2013-2014 it cannot be determined which District held an IEP first, even if that is an issue and is relevant. I do not find the date of the meetings of the 2013-2014 IEPs relevant.

I find that the parents’ legal recourse was to request an impartial hearing contesting the ’ 2013-2014 IEP that was dated March 20, 2013. There was no evidence submitted that the parents made such a request. If they did make such a request I assume they were not successful. If the parents’ were successful as to the ’ IEP this request here and continued hearing of this case would otherwise be moot.

I find that the regulations and decisions clear on this issue. The District of residence is responsible for determining child find and the District of location is responsible for providing services as the parents’ requested in this case.

I therefore deny parents’ claim for the NYC District pay for services that the ’ District is not providing. Dated: December 13, 2013

MARC WEINER, ESQ.

Impartial Hearing Officer

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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..nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

DISTRICT

A. 8/22/13 Impartial Hearing Request 4pp.

B. 5/1/13 Impartial Hearing Officer’s Decision 5pp.

IMPARTIAL HEARING OFFICER

I. 11/19/12 IEP 2pp.

II. 3/20/13 ’ IEP 9pp.