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: December 14, 2012
January 15, 2013
February 21, 2013
Actual Record Closed Date: June 8, 2013
Hearing Officer: Timothy M. Mahoney, Esq.
Corrected
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 15,
2012
Attorney (Via Telephone) — Student
District Representative (Via — DOE
Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 15, 2013
Attorney — Student
Parents
Parents
DOE Representative — DOE
School Psychologist (via telephone) — DOE
Special Education Teacher (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 21,
2013
Attorney — Student
Parents
Parents
Director, (via telephone) — Student
DOE Representative — DOE
On January 11, 2013, I was appointed following the recusal of the previously — DOE
appointed hearing officer to conduct an impartial hearing pursuant to the Individuals with — DOE
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, concerning a dispute of a student (“student” or seeking an appropriate education placement from the New York City Department of Education (“DOE”) for the 2012-2013 school year.
BACKGROUND
This case was initiated as a result of a demand for due process (“Demand,” see P-
B) filed by the student’s Parent through her attorneys, the Law Offices ., appearing, and received by the Department of Education Impartial Hearing Office (DOE-IHO) on or about November 9, 2012, and identified as NYC Case No. .
In their demand for due process, the parents raised the following issues to be decided at hearing, including:
1) The Individualized Education Program (IEP) developed November of 2010 for the 2010-2011 school year failed to provide . a free appropriate public education (“FAPE”) by –
a) Failing to recommend additional services notwithstanding the fact that .
made minimal to no progress from November 2009 through the date of the meeting;
b) The present levels of performance failed to accurately describe the student, specifically his reading, writing and math needs;
c) Failing to recommend the related service of counseling or other supports in spite of identifying that “requires consistent attention of a nurturing adult” in his IEP;
d) Including goals that did not address ’s needs, were too vague or otherwise unmeasurable, and lacked sufficient specificity in which to guide instruction or note progress;
2) The IEP developed November 30, 2011 for the 2011-2012 school year failed to provide a free appropriate public education (“FAPE”) by –
a) Failing to recommend additional services notwithstanding the fact that made , and in some instances such as , for the preceding two school years;
b) The present levels of performance failed to accurately describe the student;
c) Failing to recommend the related service of counseling or other supports ;
d) Including goals that did not address ’s needs, were too vague or otherwise unmeasurable, and lacked sufficient specificity in which to guide instruction or note progress;
3) After the November 2011 Committee on Special Education (CSE) meeting, the CSE has neglected to convene to develop any education plan for the student for the 2012-2013 school year;
4) The CSE failed to convene to consider its own March 2012 evaluation of the student; and
5) The student made no progress for the 2011-2012 school year, demonstrated by the fact that . See D-1, pgs. 3-5.
No response by to the parents’ demand for due process was offered into evidence by the DOE. At the hearing, the District’s Representative argued that 1) services were delivered to the student, 2) who made more than trivial progress, and 3) even were a finding against the DOE be made, tutoring would not be required to remediate the harm. Tr. 39-40.
Prior to my appointment, a telephonic prehearing conference was held on December 14, 2012. The DOE presented its case-in-chief on January 15, 2012. The parents presented their witnesses and evidence on February 1, 2013. Post-hearing briefs were crossed served on or about March 22, 2013. A full list of hearing participants precedes this decision; a list of exhibits accepted into the record follows1.
is a . During the most recent school psychological evaluation conducted in March 2012, presented with a full scale IQ of , with relative strengths in . P-L. .
1 References to the transcript are preceded by a “Tr.” Followed by the page number. District exhibits are denoted by the prefix “D-” and parent exhibits are denoted by the prefix “P-”. Id. The record further indicates that . See P-B, P-C, P-D, P-E, P-F, P-G, P-H, P-I, P-J, P-K, P-L, P-O. The record also shows . Id.
STANDARD
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. Educ. Law § 4404(1)(c); see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010). The Second Circuit stressed that “courts must evaluate the adequacy of an IEP prospectively as of the time of the parents’ placement decision[.]” R.E. v New York City Dept. of Educ., 694 F.3d 167, 195 (2d Cir 2012). Here, the DOE had both the burden of proof and production.
The IDEA directs that my decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 415(f)(3)(i). 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). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Id., 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). 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, 142 F.3d at 130. 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). The student's recommended program must also be provided in the least restrictive environment (“LRE”). 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); see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132.
Not all procedural errors invalidate an IEP under the IDEA. See 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 decisionmaking process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(i); 34 C.F.R. § 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
FAPE
FAPE, at its most basic level, stands for the idea that a child’s individual needs are accounted for when constructing a special education program. The program addresses the child, not the child’s classification or diagnosis. To perform this task, stakeholders – here members of the CSE – must identify the abilities (and deficits) of the child (present levels of performance and needs).
The statue requires this basic floor. The IDEA, among other things, ensures that students with disabilities have available to them a Free Appropriate Public Education, or
FAPE. 20 U.S.C. § 1400(d)(1)(A); see also Schaffer v. Weast, 126 S. Ct. 528, 531 (2005). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d); see also 20 U.S.C. § 1414(d); 34 C.F.R. § 300.320. 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. Board of Educ. v. Rowley, 458 U.S. 176, at 206-07 (1982). The initial inquiry as to whether the DOE offered a student FAPE begins with an IEP that accurately reflects a student’s present levels of performance and his or her needs. 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i). Based on this information, the IEP must include annual goals related to those needs. 34 C.F.R. § 300.320(a)(2); 8 NYCRR 200.4(d)(2)(iii). Finally, the IEP must provide for the use of appropriate special education services to address the student’s needs and implement the recommended goals. 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v). Thereafter, the IEP must be implemented. 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
For the following reasons, I find that the DOE has failed to meet its burden in demonstrating FAPE was offered to the student for the time period at issue. I find that the student has failed to make progress since the 2010-2011 school year to the present, . In addition, I find that the DOE failed to recommend a more restrictive setting following the issuance of Dr. Psychiatric Evaluation in October 2012, found in the record as P-I. Lastly, I find that resulting IEP from the November 2012 CSE meeting is a nullity due to the parent’s nonattendance.
a) 2010-2011 School Year and the November 2010 IEP The DOE presented no testimony concerning this IEP or the 2010-2011 school year, nor whether the student made progress during the 2009-2010 school year, or whether the CSE considered such progress or lack thereof in making its recommendations for the 2010-2011 school year. The record indicates that the student received a letter at the end of his . Tr. 242-44. In comparing ’s 2009-2010 and 2010-2011 IEPs, it appears that no substantive change was made between the two documents, notwithstanding the student’s apparent failure to progress. No change was made to his level of services or to his placement, despite the fact that even though the November 2010 IEP acknowledged this , and recognized his need for , as well as the no such support was provided. P-D at 3, 5. In addition, no were provided to him, and no were included as part of his program notwithstanding the acknowledgement of . P-D at 5. Only four goals were provided in the IEP: three relating to ELA and one for math, with no goals addressing . Id. at 7-8.
In light of the above, I find that the CSE failed to meet its burden in demonstrating that the student was offered a FAPE for the 2010-2011 school year.
b) March 22, 2012 and November 2012 CSE IEPs
Challenges to the education plans developed both in March and November 2012 were not included in the parents’ demand for due process.[2] I am constrained to consider only those issues that were raised in the parents’ demand for due process. However, the entire substance of the DOE’s testimonial evidence addressed these time periods, and therefore has placed such meetings into controversy.
Regarding the March 2012 CSE meeting, the DOE offered an invitation letter dated March 12, 2012, scheduling a committee meeting for March 22, 2012. See D-9. The parent attended that meeting. See D-11 at 19. Seeing no issue raised in the parent’s demand for due process concerning this meeting, I decline to make any findings concerning the appropriateness of the IEP developed as a result of the March 22, 2012 CSE meeting.[3]
For the 2012-2013 is and attends the See P-B. While receiving services since from the DOE since 2006 with a classification of , has since been classified . Tr. 24041, P-B, P-C, P-D, P-E, P-F, P-G, P-H. Most recently in March of 2012, his classification category was changed to D-11. Thereafter, his classification was changed once again following the initiation if the instant impartial hearing to See D-22. Notwithstanding the various changes in ’s classifications over the years, or his , has uniformly been placed in an . P-B, P-C, P-D, P-E, P-F, P-G, P-H.
Further complicating matters (the first time).P-I, D-12. It is uncontested that this The DOE apparently agrees with this assessment, See Ms. testimony at Tr. 56. The DOE argued that the parent prevented the DOE from making appropriate recommendations by refusing to cooperate with the District. Tr. 64.
Overall, I do not credit the testimony of Ms. . I found her demeanor to be evasive and calculating, declining to give straight-forward and clear answers to questions during her examination. In particular, Ms. had poor recall of her efforts to work with parent to procure a physical or any additional evaluations. Tr. 69-70. Regarding the portions of her testimony, I find that Ms. lacked sufficient familiarity with the testing protocol and instruments to offer informed testimony. Tr. 92-99. Moreover, I do not accept her as informed concerning the when she testified she was not familiar with the instrument, had never studied the test in any situation, or administered the test. Tr. 99.
Regarding the November 2012 meeting, the DOE offered an invitation letter to the parent on or about October 16, 2012, scheduling a CSE meeting for November 8, 2012. See D-19. At the outset, the parent did not attend the CSE meeting. Id.; see also Tr. 72. Despite the parent’s absence, Ms. testified in response to a question concerning the November 2012CSE meeting that:
“…everyone was given an opportunity to share their response perspective.
[’s mother] was asked about, at the last meeting especially, she was asked about her concerns. That happened at every meeting, and yes, she was given, definitely, an opportunity, multiple opportunities through the entire meeting to share her thoughts or concerns or objections as far as the construction of the IEP.”
Tr. 79. It begs credibility to assert ’s mother participated at a meeting in which she did not attend. Moreover, the DOE offered no evidence as to the efforts it made to ensure the parent’s attendance. Were I to rely on Ms. testimony, for which I have serious concerns regarding her credibility, the DOE would still only have demonstrated that a notice was sent to the parent, followed by a phone call. Tr. 78. This in and of itself is insufficient to conduct a CSE meeting without the parent’s attendance. The meeting should not have occurred, and it instead should have been rescheduled. The parent is a mandatory member of the CSE, and the parent’s absence renders the result of any such meeting a nullity.
I find that conducting a CSE meeting without the parent’s attendance significantly impedes parental participation due to its unwillingness to "consider the parents' concerns and revise the IEP when appropriate." R.K. v. New York City Dep't of Educ., 2011 WL 1131492, at *14 (E.D.N.Y. Jan. 21, 2011); see 20 U.S.C. § 1414(d)(3)(A)(ii); 34 C.F.R. § 300.324(a)(1)(ii); 8 NYCRR 200.4(d)(2).
The record is barren as to whether has made progress in any of the years at issue. The sole reference located in the record attesting to ’s progress is a hand-written reference in the February 2009 IEP stating “Goals Met,” written over a blank page for drafting goals. See F-8. The DOE offered no progress reports, and the no testimony speaking directly to ’s progress for the years at issue. The DOE argues that for reading, has made progress, beginning at a in September of 2011and achieving a by November-December of 2012. ; see D-29 for Benchmark descriptions and grade equivalencies. I note however that every goal included in ’s November 2011 IEP (P-C) was carried over and included in ’s November 2012 IEP (P-B). Had made progress – or mastered any of the target areas delineated by the CSE from November 2011 to December 2012 – those goals should not have been carried over to the following IEP.
Similarly, the DOE testified, through Ms. that has shown improvement in his , evidenced by his than when he first came to school, as well as a . Tr. 82. Ms. however conceded on cross-examination that ’s unabated while in the classroom. Tr.
148. However, these areas – while certainly important – were not identified as appropriate goals or short-term objectives in the relevant IEPs. I remind the DOE that progress is a function of the student achieving the benchmarks set out in the goals and shirt-term objectives in an IEP. Moreover, no DOE witness successfully explained ’s following the 2011-2012 school year to , nor the effect the failure to achieve promotion had on ’s educational plan.
I find that the DOE has failed in its burden to present credible evidence that the student . I further find that the under the offered IEPs at issue.
c) Smaller Setting and the Evaluation
was evaluated by Dr. , for a NYC-DOE psychiatric evaluation. See P-I. As part of the evaluation, Dr. reviewed ’s educational and medical history. During the review, Dr. noted that has exhibited ongoing issues since early childhood, including in . Id. He further noted that “ P-I at 2-3. Dr. noted that required to accomplish his tasks, and that had been ” P-I at 3.
During the evaluation, Dr. identified as . P-I at 3. Furthermore and overall, was found to have P-I at 6. was diagnosed with He concluded that ” Id.
It is unclear that this report was reviewed by the CSE at the November 2012 meeting. Certainly no increase in the restrictiveness of ’s program was considered, and ’s parent did not attend. See above; P-B at 10 (no other programs were identified as having been considered).
I find that the DOE failed to consider its own evaluation. I further find that the DOE should have convened a meeting expressly for the purpose of considering whether to recommend a more restrictive setting. I find that in light of Dr. report, , a more restrictive setting should have been recommended at least as far back as November 2012. I can find no reason for the DOE to ignore the recommendations of own report then or now, and direct the DOE to reconvene a CSE as soon as practical to implement the recommendations contained in Dr. psychiatric evaluation.
As stated above, I find that the DOE has failed to meet its burden in demonstrating FAPE was offered to the student for the time period at issue. I find that the student has since the 2010-2011 school year to the present, . In addition, I find that the DOE failed to recommend a more restrictive setting following the issuance of Dr. Psychiatric Evaluation in October 2012. Lastly, I find that resulting IEP from the November 2012 CSE meeting is a nullity due to the parent’s nonattendance.
REMEDIES
In this matter the parent is seeking for her son in light of the DOE’s failure to offer a free appropriate public education. See IHO-I. The term “ ” and “compensatory” are something of imprecise terms in this circuit. Within the Second Circuit, has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded if there has been a gross violation of the Individuals with Disabilities Education Act (IDEA) resulting in the denial of, or exclusion from, educational services for a substantial period of time. See Somoza v. New York City Dep't of Educ., 2008 WL 3474735, at *1 (2d Cir. Aug. 14, 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]; but see Mr.
P. v. Newington Bd. of Educ., 2008 WL 4509089, at * 10 (2d. Cir. Oct. 9, 2008)(upholding an award of for a school aged student without finding a gross violation of the IDEA). is an equitable remedy that is tailored to meet the circumstances of the case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. Bd. of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction); Application of a Child with a Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE); Application of the Bd. of Educ., Appeal No. 08-060; Application of the Bd. of Educ., Appeal No. 06-074.
The parents have requested provide . evaluated to determine his academic achievement levels in various areas, including . , the Director at testified at length concerning the nature of the testing and the various elements of the program devised by her for , and how it was designed to address each of the areas in which was in need of remedial education. Tr. 297-354.
In that has not yet aged-out of IDEIA services, no showing of gross harm is required. Instead, remedial services sought must be reasonably tailored to meet the deprivation, or “appropriate to remedy the district’s failure to offer FAPE.” See Application of a Child with a Disability, Appeal No. 10-008, pg. 16.
According to the . was found to have performed at the level of an , indicating he will .” Tr. 304, 306. Dr. explained that “it’s likely that when he is given tasks to do at school at [a] and with the expectation that or a longer term kind of an assignment, that . . Tr. 305-306.
According to the , was found to have mastered work at a instructional. Tr. 307-
308. Consequently, reading instruction at would begin with texts at the . Tr. 321. In reading comprehension, was found to , which worsened to correct responses when he was asked questions concerning a text. Tr. 322. Likewise, his writing sample was at a level expected of a grader. Tr. 326. Finally, his performance on the math test revealed he on any of the areas tested. Tr. 329-330.
Ms. testified concerning the designed by for Instruction addresses each academic area, beginning at the student’s mastery level, and then working from that starting point fill in the academic gaps in a logical and sequential manner. Tr. 330-331, 338-339. Ms, testified that required hours total hours to bring him to a level.
I find Ms. to be a credible and forthright witness, and I accept her testimony without reservation. I accept her testimony that has extensive experience with students with disabilities similar to ’s, and rely upon the documentary evidence in conjunction with her testimony that will benefit from the instruction. See Tr. 338-339; D-30.
I find that the assessment conducted by is sufficient to provide a framework to identify the student’s deficits as well as to construct a plan to remedy such. I further find that student had previously succeeded at and would likely achieve some of success there in the future were he to receive instruction from . Additionally I find that would benefit from individualized instruction of a type offered, by way of example, by . Finally, I find that the proposed program laid out by is appropriate to remedy the district’s failure to offer FAPE.
The parents also seek transportation fees to and from to support While I certainly see the value of such an award, I see no reason as to why the DOE should be responsible for this sum for the period contemplated in this award.
Now, therefore, it is hereby
ORDERED that the student’s case is remanded to the Committee on Special Education to make appropriate educational program and/or placement recommendations considering the full placement continuum for the start of the 2013-2014 school year consistent with this Order, and at the very least expressly considering and eventually recommending a more restrictive program or “smaller academic setting” for the student and possibly a referral to the for a non-public school placement, to be held no later than thirty days following the issuance of this Order; and it is further
ORDERED that the DOE shall, unless the parties otherwise agree, provide the student with in the form of and it is further
ORDERED that that the DOE shall, unless the parties otherwise agree, initiate the within fifteen (15) days from the date of this decision, provided however, that if the district fails to initiate the within fifteen (15) days, the district shall be required to obtain the for the student at the , payable directly to upon submission of invoices monthly to the DOE; and it is further
ORDERED that should the DOE utilize the DOE shall directly pay the student’s registration fee to upon submission of an invoice and in an amount not to exceed $100; and it is further
ORDERED that such remedial instruction must be completed no later than August 1, 2015, and that any uncompleted hours of instruction shall be lost or otherwise expire; and it is further
ORDERED that notwithstanding the eventual provider of the student’s compensatory and remedial services as described above, the DOE shall directly pay to upon submission of an invoice for the student’s testing fees in an amount not to exceed two hundred ninety-five ($295.00) dollars; and it is further
ORDERED that the parents’ remaining claims are dismissed with prejudice. Original Date: June 21, 2013 Corrected Date: July 1, 2013 (Correction made to cover page)
____________________________
TIMOTHY M. MAHONEY, ESQ.
Impartial Hearing Officer TM;mv
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
PARENTS
A [Omit] --- --- B IEP 11/8/12 12 pgs. C IEP 11/12/11 17 pgs. D IEP 11/30/10 11 pgs. E IEP 11/18/09 9 pgs. F IEP 2/6/09 10 pgs. G IEP 11/14/07 13 pgs. H IEP 11/9/06 14 pgs. I Psychiatric Evaluation 10/17/10 6 pgs. J OT Evaluation 11/20/12 8 pgs. K Classroom Observation 5/31/12 1 pg. L Psychoeducational Report 3/12/12 9 pgs. M Psychoeducational Report 11/6/09 4 pgs. N Report Card 2011-12 1 pg. O Teacher Report 9/22/06 2 pgs. P Assessment details --- 7 pgs. Q School Progress Report for PS333, 2011-12 8 pgs. R [Omit] --- --- S [Omit] --- --- T [Omit] --- --- U Slosson Oral Reading Test undated 38 pgs. V Cultural Academy for the Arts and Sciences 2010- 2011 School Comprehensive Educational Plan --- 73 pgs. W Manhattan Transition Center, 2010/2011 Comprehensive Educational Plan --- 99 pgs. X Special Education Services as part of A Unified
Service Delivery System (by the Board of Education
Of the City of New York) --- 57 pgs. DEPARTMENT OF EDUCATION. 1 Due Process Complaint 11/19/12 8 pgs. 2 SESIS events log 6/11 – 12/12 5 pgs. 3 [Omit] --- --- 4 [Omit] --- --- 5 Notice of IEP Meeting 11/14/11 2 pgs. 6 Request for Re-evaluation 1/24/12 1 pg. 7 Assessment planning 1/24/12 1 pg. 8 Consent for Re-evaluation 1/24/12 1 pg. 9 Notice of IEP Meeting 3/12/12 2 pgs. 10 [Omit] --- --- 11 IEP 3/22/12 19 pgs. 12 Social History Update 3/22/12 3 pgs. 13 Blank Medical Form 3/22/12 3 pgs. 14 Psychiatric Authorization 4/22/12 7 pgs. 15 [Omit] --- --- 16 Documents required for Summer Evaluation 6/25/12 8 pgs. 17 Consent for Re-evaluation 10/25/12 1 pg. 18 Notice of mandated three year re-evaluation 10/16/12 1 pg. 19 Notice of IEP Meeting 10/16/12 2 pgs. 20 Psychiatric authorization 10/17/12 7 pgs. 21 Psychiatric Evaluation 10/17/12 6 pgs. 22 [Omit] --- --- 23 FNR 11/8/12 2 pgs. 24 Notice of IEP Meeting 12/11/12 3 pgs. 25 Notice of Re-evaluation 12/11/12 1 pg. 26 [Omit] --- --- 27 Student Work Forms January 2013 13 pgs. 28 IEP 1/8/13 15 pgs. 29 Teacher’s College Reading Levels January 2012 1 pg.
30 documents various 62 pgs.
Footnotes
[2] I decline to accept jurisdiction over the January 28, 2013 CSE meeting, a meeting held immediately before the first day of hearing. I make no rulings as to whether FAPE was offered to the student at that time. I have grave concerns about any CSE meeting held during the pendency of an impartial hearing. For that reason, I have focused my attention to those events leading up to the parent’s request.
[3] Without allegations of inappropriateness, I am constrained into how far to examine the IEP here. I do not wish to pick through the document with a fine-tooth comb looking for any possible procedural violation. Instead, I will limit myself to facial validity – was there a meeting with notice to the parent attended by the mandated members. I do not believe this affects my overall decision in any way, i.e. the student for years. This IEP does not appear to arrest the failure to make progress, and it was the opinion of Dr. that the student had not made progress as late as October 2012, some seven months after the March CSE meeting. See P-I.