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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: March 25, 2013
April 3, 2013
April 18, 2013
Actual Record Closed Date: April 23, 2013
Hearing Officer: Esther Mora, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 25, 2013
Parent (Via Telephone) — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 3, 2013
Parent (Via Telephone) — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 18, 2013
Parents
District Representative (Via Telephone) — DOE
This hearing was requested by the parent on February 21, 2013. The matter came before me on March 25, 2013, April 3, 2013 and April 18, 2013.
The school district moved to dismiss the case. The parent objected to the school district’s motion to dismiss. By Interim Order dated April 19, 2013, I granted school district’s motion to dismiss as to all issues raised and resolved in previous impartial hearings. Appeal No. 11-060. I retained jurisdiction over claims pertaining to this school year that were not resolved in previous impartial hearings.
SCHOOL DISTRICT
The school district presented testimony by the school district representative and documentary evidence in support of its position that it offered a free appropriate public education (FAPE) to the student. (Testimony and Exhibits 1-10)
The school district representative testified credibly that he visited the school, observed the student’s classroom, and spoke to the guidance counselor about the student. He also reviewed the student’s Individualized Education Program (IEP) and confirmed that the student is receiving the mandated services. He testified that in addition to his mandated services, the student receives private tutoring at school district expense. The student is due for an annual review but the parent has not cooperated with the scheduling of the review, according to the school district representative.
PARENT
The parent testified on her own behalf and submitted documentary evidence. (Exhs. A-Z) She testified that the student is not appropriately placed and therefore is not benefiting from his current services. She wants him transferred to a different school where he can receive appropriate services, including a paraprofessional. The parent also wants an independent evaluation.
The documentary evidence submitted by the parent includes an independent dated February 2, 2013, which was obtained by the parent. The purpose of the evaluation was a follow visit for ( ). The neurologist recommended that the student attend a small structured classroom setting with additional instructional services to remediate possible . He also recommended the formulation of a functional behavior plan for use in the classroom to help the student develop more appropriate skills for , to improve attention on tasks, increase seeking behavior. He also recommended parental skill training to assist the parent in managing symptoms of to prevent escalation of (Exh. T)
FINDINGS OF FACT AND LAW
As was recently reiterated in Appeal 12-135, two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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 (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. 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 Committee on Special Education (CSE) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits 7(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 an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d 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 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][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
The IDEA directs that, in general, 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. § 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 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] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (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 [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). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see 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; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 8300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
Based on the record before me I find that this matter must be remanded to the school district. The record establishes that the student is due for an annual review, which will determine whether the services the student is currently receiving continue to be appropriate. The parent seeks an independent evaluation, however the record includes a recent independent evaluation. (Exh. T) Therefore, I find that there is no basis for me to order another independent evaluation at this time. However, the review team should consider whether an independent evaluation is warranted.
I have considered the parties' remaining contentions and find that the contentions are either without merit or that I need not consider them in light of my determinations herein.
ORDER
1. This matter is remanded to the school district for an annual review.
2. The review team shall determine whether the services the student receives are providing a FAPE.
3. The review team shall consider whether the student requires a paraprofessional.
4. The review team shall consider whether an independent evaluation is warranted.
5. The review team shall consider whether parent training should be included in the IEP. Dated: April 24, 2013
ESTHER MORA, ESQ.
Impartial Hearing Officer EM: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
PARENT
A DOE Motion to Dismiss, 3/25/13, 4 pages B IEP, 3/26/12, 12 pages C Affidavit of Toni Ceaser for 50 Tutoring Sessions and Letter NYCDOE
Approval for 50 hours of Tutoring, 9/30/08, 3 pages D SETTS-5a Form: Transportation Reimbursement Voucher Private Car
Services and Receipts, various dates, 4 pages E The Sterling School Enrollment Contract for the 2009-2010 Academic Year, 3 pages F DOE Lunch Payment Statement , 8/16/10 and Check from the School Mrs. , 2 pages G Advocate for Impartial Hearing Request, 6.29/10, 4 pages H Letter from Mrs Summary Dismissal, 9/13/10, 1 page I Letter from is no longer representing the Parent at Impartial Hearing Schedule, 9/23/10, 1 page J Amended Impartial Hearing, 9/23/10, 1 page K Placement Letter for denied by Mother, 8/16/10 and Letter
Stating that Parent will attend Impartial Hearing scheduled for 9/23/10, 2 pages L Letter from , Mrs. Rejecting Placement
Offer at , 9/14/10, 1 page M Letter from ACS attached, 9/26/11, 2 pages N LV Letter Determine DOE Failed to Timely Implement Impartial Hearing Order of Case No. 127862, 9/6/11, page 1 O Occurrence Report and Hospital Visit Complaint Annexed hereto,
3/7/11, 2 pages P Transcript Case No. annexed hereto, undated, 1 page Q Case No. Finding of Facts and Decision of IHO Debra Siedman DeWan, Esq., 10/1/13, 6 pages R Case No. IHO Finding of Fact and Decision and order, 12/20/10, 2 pages S Email from Parent to Mr. Assistant Principal, 11/30/13, 2 pages T Child Neurology Evaluation and letter from Dr. dated 2/2/13 annexed hereto, 3 pages U Email from parent to Mr. annexed hereto, 3/23/12, 3 pages V Letters from parent to Mrs. RSA and reimbursement, 4/30/12,
3 pages W Due Process Complaint, email from parent to Mrs. ,
7/26/12 and order of dismissal Case No. , 5 pages X Finding of the YSED Complaint investigation of dismissal of Case No.
conclusion and reasons from dated 10/5/12, 1 page Z Re-evaluation Letter from the , 4/2/13, 2 pages
DEPARTMENT OF EDUCATION
1.1 – 1.9 Case # Decision, 9/1808, 9 pages 2.1 – 2.8 Case # , 12/10/10, 8 pages 3.1 – 3.21 Case # Original Decision, 12/10/10, 2 pages 4.1 RSA OT Letter, 2009-2010 School Year, 1 page 5.1 P1 Letter, 10/5/10, 1 page 6.1 – 6.14 IEP, 4/5/11 13 pages 7.1 – 7.13 IEP, 3/28/12, 13 pages 8.1 – 8.2 Email & W9, 4/17/12, 2 pages 9.1 Follow-up Email W9 Form, 4/30/12, 1 pages 10.1 – 10.2 Motion to Dismiss, 3/25/13, 2 pages