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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: October 25, 2012
January 14, 2013
January 28, 2013
Actual Record Closed Date: April 20, 2013
Hearing Officer: Ellen Cutler- Igoe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 25, 2012
Attorney — Student
Parents
CSE Representative — DOE
,, CSE
, CSE LCSW
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 14, 2013
Advocate — Student
Parents
Dr., Treating (Via Telephone) — Student
CSE Chairperson’s Designee — DOE
School Psychologist (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 28, 2013
Advocate
Educational Director, — Parents
CSE Chairperson’s Designee — DOE
On behalf of her daughter,.), Ms., filed a due process complaint on June 18, — DOE
2012 alleging the Department of Education (DOE) failed to offer her daughter a Free — DOE
Appropriate Public Education (FAPE) on procedural as well as substantive grounds. Ms. maintains, as a matter of law, that her daughter . is entitled to an appropriate education according to both the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 Part 204.33 (6)(3). Mrs. maintains that the Department of Education failed to draft an Individualized Education Program (IEP) and recommend a placement that was reasonably calculated to allow the opportunity to progress academically, socially and emotionally. Ms. contends, (1) the department of Education refused to discuss her request of a home based program of Applied Behavior Analysis (ABA) and speech therapy; (2) the Department of Education failed to allow Mrs. meaningful participation at her daughter’s annual review meeting refusing to discuss home based services; (3) the Department of Education did not recommend parent training as mandated by Federal Law for the parent of a student who is classified ; (4) the Department of Education failed to consider .’s need to generalize skills to home and community when they refused to consider a home based program; (5) the Department of Education failed to provide Mrs. with minutes of the annual review meeting; and (6) the Department of Education failed to consider . prior history of failure to generalize skills from school to home during the IEP meeting. . has been attending the New York State approved for the 2012-2013 school year.
Mrs. ’s proposed resolution and remedy sought throughout the hearing included payment for a special education teacher for ten hours a week of special education services at a rate not to exceed $100 per hour, home speech therapy for one hour of per week, three hours per week of parent training at a rate not to exceed $100 per hour of instruction. Mrs. contends that the aforementioned home program of services is necessitated in order for to master the goals on the IEP and generalize skills learned in school to home and the community for the 2012-2013 school year.
The Department of Education posits that its witnesses testified in direct contradiction to Mrs. ’s allegations and are unfounded.
The factual history as outlined by both Parent’s counsel and the Department of Education in their respective position statements were not in dispute. Therefore, the undisputed factual statement regarding student’s educational history and procedural timeframe are incorporated into this decision.
LEGAL STANDARD
As presented by Parent’s attorney, a FAPE is offered to a student when the board of education complies with the procedural requirements set forth in the IDEA, and the IEP developed by its Committee on Special Education (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]).
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 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, 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 [2d Cir. 1997]; see Rowley, 458 U.S. at 192).
A program that causes a student to regress emotionally is inappropriate (K. v. Schmidt, 536 F. Supp. 1375 (D RI 1982) (aff’d. 715 F.2d 1 (CAI RI 1983)). It must, at the very least, provide meaningful educational benefit toward the goal of self-sufficiency (Deal v. Hamilton County Bd. Of Educ., 392 F.3d 840, 862, 864 (6th Cir. 2004)). In a case that is directly on point, the Court found that the applicable district failed to provide FAPE to a when the CSE excluded home-based services from the student’s IEP. D.F. on behalf of, N.F. v. Ramapo Central School District, 348 F. Supp. 2d 92 (S.D.N.Y. 2004) The Court opined that without such services, the IEP only gave the student a trivial advancement rather than a meaningful educational benefit as required by the IDEA (Id.). Moreover, as parent’s counsel asserts, it has been recognized that an award of additional services is an appropriate equitable remedy where there has been a violation of FAPE. (Application of the Board of Education, Appeal No. 05-009; Application of the Board of Education, Appeal No. 04-016; Application of the Board of Education, Appeal No. 03075). This has included a home program where appropriate (Application of a Child with a Disability, Appeal No. 97-30). I.H.O. Posthearing Submission I
Witness testimony included Ms. , the school psychologist who chaired the CSE review on January 30, 2012. In sum, Ms. testified that she knew not only as a result of this CSE meeting but pursuant to her preparation of a Social History and Classroom Observation and that at no time during the CSE process did Mrs propose her disagreement with the Department of Education’s recommendations or requested home based program. Furthermore, Ms. , the CSE Social Worker, presented testimony indicating that Mrs. did not “overtly” voice any dissent with the program recommendation made by the CSE or advise of her request receive such programming. I.H.O. Posthearing Submission II
Mrs. testified relating to her experience with the CSE team, hearing and her understanding of the procedural and substantive issues regarding her daughter, ’s, educational plan as documented on the individual educational plan. Mrs. opined that her daughters educational development has been stalled thus, mandating the necessity of the herein services. Mrs. reiterated and summarized that she believes home services would be educationally helpful and that she did not intentionally discount home services for her daughter at any during the meetings she attended with the Department of Education.
CONCLUSION
Upon a thorough review of the evidence submitted, testimony heard and position statements, I find Parent’s counsel’s position statement persuasive and legally controlling. Despite the Department of Education’s contentions relating to whether or not Parent agreed or disagreed with the CSE team’s recommendations, in this case, the student’s educational needs are controlling.
Accordingly, it is so ORDERED that the Department of Education comply with Parent’s due process complaint. Parent is awarded: - A special education teacher for ten hours a week of special education services at a rate not to exceed $100 per hour, - A home speech therapist for one hour of speech therapy per week, - Three hours per week of parent training at a rate not to exceed $100 per hour of instruction. Dated: May 8, 2013
___________________________
ELLEN CUTLER- IGOE, ESQ.
Impartial Hearing Officer
ECI;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
Parent
A Impartial Hearing Request, 6/18/12, 4 pages
B IEP, 1/30/12, 16 pages
C Social History update, 10/3/11, 3 pages
D Diagnostic Evaluation, 2012, 12 pages
Department of Education
1 IEP, 3/29/12, 17 pages
2 Acceptance Letter, 10/4/2011
3 Due Process Complaint, 6/18/2012, 3 pages
4 Notice of IEP meeting, 3/22/2012, 2 pages
5 Functional Behavior Assessment, 2/22/2012, 2 pages
6 Memo of Notice of Securement, 1/25/2012, 1 page
7 classroom Observation, 12/22/2012, 2 pages
8 IEP Attendance Page, 1/30/12, one page