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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: April 15, 2013
Actual Record Closed Date: April 19, 2013
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 15, 2013
Advocate — Student
Parents
DR., Psychiatrist (via telephone) — Student
District Representative — DOE
IEP Teacher (via telephone) — DOE
ELA SETSS Teacher (via telephone) — DOE
Math SETSS Teacher (via telephone) — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities 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 parent in a due process complaint notice dated December 19, 2012. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) denied the student a free appropriate public education in the least restrictive environment by not providing her an individualized education program that was reasonably calculated to ensure educational benefit and adequate instruction (Ex. SD-1 at 3).[1] .
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, 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 in mediation, 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, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, 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 counsel and certain other individuals with special 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 45 days after the expiration of the resolution period. 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). If extensions have been granted, the decision shall be rendered and transmitted to the parties no later than 14 days from when the record is closed. See 8 NYCRR § 200.5(j)(5).[2] 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
I was appointed by the DOE to hear this matter on March 5, 2013 following the recusal of several other hearing officers. A hearing was held on April 15, 2013. 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 December 19, 2012 hearing request, the student ( old and educationally classified as having (Exs. P-A at 1, SD-4 at 1).[3] For the current academic year (the 2012/13 school year), the student is enrolled in the ( ) on (Ex. P-L). The student's eligibility for special education and related services as a student with a disability is not in dispute in this hearing (Ex. P-A). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).
The student was administered a Wechsler Intelligence Scale for Children - Fourth Edition on April 8, 2009. Her results were as follows: Verbal Comprehension (83); Perceptual Reasoning (104); Working Memory (99); Processing Speed (100); Full Scale IQ (94 - average) (Ex. SD-4 at 1).
During the 2011/12 school year, the student attended (R. 52-53). At a meeting held on December 16, 2011, the CSE noted that the student exhibited a one (1) year delay in math and reading and that the student needed to improve upon her written language and math skills and recommended that she receive instruction in an integrated co-teaching class (Exs. SD-4 at 1, P-A at 1). An April 25, 2012 student report card reflects that the student achieved weighted averages of: % (first quarter); % (second quarter); % (third quarter) (Ex. P-N). The student was administered State assessments in English Language Arts and Math during the spring of 2012 and achieved the following scores: Level (ELA) and Level (Math) (Ex. P-L).
In the fall of the 2012/13 school year, the student’s seventh grade, her anxiety level increased which impacted her ability to regularly attend school (Ex. SD-1 at 1). In a letter dated October 25, 2012, the parent requested an IEP meeting to discuss the student’s anxiety and her difficulty in attending school (R. 61; Ex. P-B). On November 5, 2012, the student was evaluated by Dr. , a , who confirmed that diagnosed conditions of were inhibiting the student’s ability to attend school (Ex. SD-3). Acting on the advice of Ms. , a school psychologist, the parent requested, in writing on November 5, 2012, home/hospital instruction, counseling, and paraprofessional services for the student, but clearly noted that such instruction and services were sought “on the premises of the school and not at home, so we do not further reinforce [the student’s] while still allowing her a significantly decreased school schedule” (R. 61-62, 241-242; Exs. SD-1 at 2, P-C).[4] On a November 20, 2012 Medical Request for Home Instruction, Dr. stated, in relevant part, that the student “requires one on one instruction in quiet location away from others but on school premises . . . request school premises so integration back into classroom will be easier for child” (Ex. SD-8 at 2). In a November 20, 2012 e-mail to Ms. , the parent clarified that the proposed duration of the alternate instruction was eight
(8) weeks (Ex. SD-7). Between December 3, 2012 and January 24, 2013, Ms. made five
(5) inquires of Ms. , another DOE employee, of the status of the home/hospital instruction request (R. 65; Ex. SD-9). In a January 15, 2013 letter, the Principal of Home Instruction Schools informed the parent that her request for home/hospital instruction for the student had been “deferred” because “our home instruction psychiatrist has made several attempts to contact your child’s psychiatrist and was not successful” (Ex. SD-10)
Meanwhile, in discussing the student’s condition as of November 2012 with the parent, the student’s general education math teacher agreed to give up a prep period each day to provide the student with one-on-one instruction in school (R. 62-63; Ex. SD-1 at 2). The CSE reconvened on December 10, 2012 for an annual review the student’s program and noted that:
In reviewing [the student’s] history of special education services, she has consistently performed well in her Integrated Co-Teaching environment with the support offered within the program. Her concerns have negatively impacted her progress due to her lack of regular attendance.
[The student’s] mother is currently awaiting approval for the initiation of short-term home instruction, as recommended by the psychiatrist working with [the student] (Ex. SD-4 at 2). The parent states that her request of the CSE for individual special education teacher support services (“SETSS”) three (3) periods daily was denied and the hearing record reflects that the CSE recommended a continuation of ICT services (R. 63-64, 119; Exs. SD-1 at 2, SD-4 at 2, SD-5, P-F at 1).
Also on December 10, 2012, the Principal of advised the parent that the student had been absent 20 times during the first and second quarters of the 2012/13 school year (Ex. P-M).
Following the parent’s filing of her December 19, 2012 due process complaint, Mr. , a Director of Special Education for , directed the relevant IEP team to add two (2) periods of one-to-one SETSS to the student’s program and for there to be a teacher evaluation of the service at the end of eight (8) weeks. The student’s IEP was amended accordingly on or about January 2, 2013 (R. 64-65, 115, 118-120; Exs. SD-4 at 2, SD11).
The parent received a promotion-in-doubt form letter from the school principal on February 11, 2013 (P-K).
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE has offered the student a free appropriate public education by processing the parent’s November 2012 request for home/hospital instruction and conducting an annual meeting of the student program in December 2012 (R. 26-29).
B. The Parent
The DOE has denied the student a free appropriate public education. The student has a long which was well known to school officials. When the increased dramatically in the fall of 2012, her attendance at school declined. The CSE failed to recommended appropriate special education interventions and related service support, including, but not limited to, SETSS, school-based counseling, paraprofessional services and/or a behavior intervention plan, to meet the student’s documented social, emotional and management needs over an extended period of time. The CSE’s ultimate recommendation of two (2) periods daily of SETSS following the filing of the parent’s December 19, 2012 due process complaint is inadequate to address her special education needs. To remedy this denial of a free appropriate public education, the student is entitled to receive, as compensatory education, fifteen (15) hours per week of SETSS for the five (5) month period which she was denied appropriate instruction by the DOE. The student should also be awarded additional SETSS over the summer. Lastly, the student’s absence from appropriate instruction, due to her and neglect by school officials, warrant further modification of her promotion criteria (R. 29-37; Ex. P-A)
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General Legal Standards
Two purposes of the IDEA are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.[5] 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, 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 disabilities. 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 special 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 evaluations to identify the student’s needs, 34 C.F.R. § 300.320(a)(1); 8 YCRR § 200.4(d)(2)(I), establishes annual goals related to those needs, 34 C.F.R. § 00.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
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 considerations support the parents' claim. See Florence County Sch. Dist. Four v. Carter, 510 U.s.7 (1993); School Comm. of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A v. New York City Dep’t of Educ. 769 F. Supp 2d 403, 427-28 (S.D.N.Y. 2011) S.W v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N..2009), Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).
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. Appropriateness of Public Program
As noted earlier, 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. 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.
I find that the DOE, by its CSE, failed to provide the student with a free appropriate public education during the 2012/13 school year. The CSE first erred in delaying over six (6) weeks after the parent’s October 25, 2013 request to convene a meeting (which was ultimately held on December 10, 2012) and review and update the student’s IEP (Exs. SD-1 at 1-2, SD-4 at 10, P-B, P-F). From the testimony entered into the hearing record, it appears that this delay was attributed, at least in part, to a custom and practice associated with pending referrals for , i.e., that the CSE defers any revisions to a student’s IEP until a referral for home/hospital instruction is concluded (R. 63-64, 106,110-111, 127-128; Exs. SD-1 at 2, SD-4 at 2, SD-7, SD-8, SD-9). From the credible testimony offered by the parent, I understand that Ms. advised her to make a request for home/hospital instruction to secure the alternate educational services recommended by Dr. (R. 61-62,114, 241-242; Exs. SD-7, SD-8 at 2, SD-9). This turned out to be bad advice (R. 85-86). Both the parent and Dr. specifically requested that alternate special education instruction be provided to the student at her school, i.e (Exs. P-C, SD-8 at 2). The parent and Dr. clearly contemplated a temporary revision to the student’s IEP which should have been addressed by the CSE at a duly noticed and constituted meeting (Exs. P-C, SD-8 at 2). See generally 8 NYCRR §§ 200.3(a), 200.4(d), 200.5(a). The delay caused by improperly deferring the parent’s request for alternate special education instruction at her school to the DOE’s home instruction school clearly impeded the student’s right to a FAPE, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, and caused a deprivation of educational benefits over a significant period of time. 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).
When the CSE finally convened for its annual review of the student IEP on December 10, 2013, it erred in failing to revise its recommended special education program for the student in light of her then-present educational needs. At the outset of the 2012/13 school year, the student was recommended to receive instruction in an ICT classroom environment (Exs. SD-1 at 1, SD-4 at 2). At its December 10, 2012 meeting, the CSE acknowledged that the student’s “ . . . have compromised her regular attendance in school” (Ex. SD-4 at 2). Notwithstanding this acknowledgment, the CSE failed to consider adding any educational goals, school-based counseling, a paraprofessional, a functional behavioral assessment or a behavioral intervention plan to improve the student’s attendance at school and failed to modify her special education program as recommended by Dr. (R. 107, 119-120, 244, 247-248; Exs. SD-4, P-F).[6] Only after the parent filed her December 19, 2012 due process complaint did the CSE amend the student’s IEP, on January 2, 2013, to include two (2) periods of one-to-one SETSS for an eight (8) week period (R. 248; Exs. SD-1, SD-4 at 2, SD-11). By that point in time, however, the student had missed a considerable amount of special education instruction and she had virtually no recorded academic performance upon which to determine her promotion to eighth grade (Exs. SD-1 at 1, P-L, P-M, P-K).
C. Compensatory Additional Services
State Review Officers 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. See, e.g., Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep’t 2005). An award of additional services, however, must be predicated on a determination that there was a denial of FAPE to the student. See Application of a Student with a Disability, Appeal No. 11-032 at 26 (SRO June 6, 2011).
Having determined that the CSE erred in failing to recommend before January 2013 alternative special education instruction for the student following documented which impeded her ability to , I find that this deprivation of instruction can be remedied through the provision of additional services to the student. Dr. offered credible and undisputed testimony that the student would benefit from one-on-one instruction in a school setting and other evidence entered into the hearing record reflects that the student has been capable of attending her school to receive such instruction when offered (R. 6263, 194-206; Exs. SD-1 at 2, SD-8 at 2, P-C, P-L).
Based on the recommendation of Dr. , the parent originally requested three (3) hours daily (or fifteen (15) hours per week) of direct SETSS instruction for an eight (8) week period, which translates to 120 hours of direct SETSS instruction (Exs. SD-1 at 2, SD-8 at 2, P-B, P-C). As the CSE failed to recommended appropriate alternative special education instruction for the student during the 2012/13 school year until January 2013, the DOE will be directed to provide the student with 300 hours of direct (1:1) SETSS instruction.[7]
C. Promotion Criteria
Turning to the parties’ dispute over the promotional criteria in the student’s IEP, I note that if a student has been determined to be eligible for special education services, a CSE must include in the contents of an IEP: (1) present level of performance; (2) disability classification; (3) measurable annual goals; (4) short-term instructional objective and benchmarks; (5) special education program and services; (6) testing accommodations; (7) participation in State and district-wide assessments; (8) participation in regular class; (9) transition services; (10) twelve-month services; (11) projected date of annual review; and (12) placement. See 8 NYCRR §§ 200.4(d)(2)(i)-
(xii). State regulations do not require that IEPs contain promotion criteria. See 8 NYCRR § 200.4(d)(2); see also 34 C.F.R. § 300.320; Application of the New York City Dep’t of Educ., Appeal No. 12-081 at 13 (SRO Oct. 26, 2012). Guidance from the Office of Special Education indicates that
If the [CSE] determines the criteria for the student to advance from grade to grade needs to be modified, the IEP would indicate this as a program modification. This information would most appropriately be indicated in the IEP in the “Supplementary Aids and Services/Program
Modifications/Accommodations” section of the IEP. See Questions and Answers on Individualized Education Program (IEP) Development, the State’s Model IEP Form and Related Documents: Updated April 2011, available at http://www.p12.nysed.gov/specialed/formsnotices/IEP/training/QA-411.pdf at p.53
The hearing record reflects that the student’s promotion criteria was set during the spring of 2013 to require that the student meet % of the ELA and Math Standards for mastery as evidenced by student work, teacher observation, assessments/grades and attendance (R. 82-83, 124, 146; Exs. SD-4 at 12, SD-5). The testimony and records offered into the hearing record, however, provide conflicting information on whether the attendance component of the modified promotion criteria would be measured against the student’s attendance at her original ICT program or at her alternative SETSS program, or some combination of the two programs (R. 83, 93-95, 160-163, 245-246, 250; Exs. SD-5, P-K). Given this conflict, I will remand this component of the parties’ dispute back to the CSE to determine for which program(s) will the attendance component of the modified promotion criteria apply.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) the parent’s claim that the student has been denied a free appropriate public education by the DOE during the 2012/13 school year is SUSTAINED;
(2) within thirty (30) days of the date of this Order, the DOE shall initiate the provision of 300 hours of direct ( ) SETSS instruction to the student, in a flexible setting (i.e., home, school, public library, etc.), delivered by its own licensed personnel or via RSAs or both; and
(3) within thirty (30) days of the date of this Order, the CSE shall reconvene to review the student’s modified promotional criteria and determine for which program(s) will the attendance component of the modified promotion criteria apply. Dated: May 3, 2013
JEFFREY 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 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 ON APRIL 15, 2013
PARENT
A. [Withdrawn]
B. Letter to School Assessment Team from parent, 10/25/12, 1 pg.
C. Letter to School Assessment Team from parent, 11/5/12, 1 pg.
D. [Withdrawn]
E. [Withdrawn]
F. Prior Written Notice, 12/10/12, 2 pgs.
G. [Withdrawn]
H. [Withdrawn]
I. [Withdrawn]
J. [Withdrawn]
K. Letter to parents from (Principal), 2/11/13, 1 pg.
L. Student Report Card (Grade 7), 3/19/13, 1 pg.
M. Letter to parents from (Principal), 12/10/12, 1 pg.
N. Student Report Card (Grade 6), 4/25/13, 1 pg.
DEPARTMENT OF EDUCATION
1. Due Process Complaint Notice/Impartial Hearing Request, 12/20/13, 4 pgs.
2. [Withdrawn]
3. Letter from , M.D., 11/5/12, 1 pg.
4. Individualized Education Program (IEP), 1/22/13, 14 pgs.
5. Modified Promotional Criteria Checklist (Grade 7), 3/21/13, 11 pgs.
6. [Withdrawn]
7. E-mail to M. from parent, 11/20/13, 1 pg.
8. Home Instruction Referral Form, 2/5/13, 4 pgs.
9. E-mail correspondence b/w , 1/24/13, 3 pgs.
10. Letter to parent from (Principal), 1/15/13, 1 pg.
11. E-mail to 12/21/12, 1 pg.
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 4/9/13, 1 pg.
II. Confirmation of Extension, 3/9/13, 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 twice in order to allow the parties adequate time to present their available witnesses on the extensive issues raised in the parents’ due process complaint. In considering those requests, 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 parents’ due process complaint justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (Exs. IHO-I, IHO-II).
[3] Learning Disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, as determined in accordance with section 200.4(j) of this Part. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of an intellectual disability, of emotional disturbance, or of environmental, cultural or economic disadvantage. 8 NYCRR § 200.1(zz)(6).
[4] Home and hospital instruction means special education provided on an individual basis for a student with a disability confined to home, hospital or other institution because of a disability. 8 NYCRR § 200.1(w). Home and hospital instruction shall only be recommended if such placement is in the least restrictive environment and must be provided a minimum of ten (10) hours per week at the secondary level, preferably two (2) hours daily. 8 NYCRR § 200.6(i)(2).
[5] 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; (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.
[6] Functional behavioral assessment means the process of determining why a student engages in behaviors that impede learning and haw the student’s behavior relates to the environment. 8 NYCRR § 200.1(r). Behavioral intervention plan means a plan that is based on the results of a functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problem behavior occurs and intervention strategies that include positive behavioral supports and services to address the behavior. 8 NYCRR § 200.1(mmm).
[7] The 300 hours of SETSS was calculated by multiplying 15 hours/week of SETSS by 20 weeks (or 5 months) of missed instruction between September 2012 to January 2013.