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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: June 17, 2013
July 11, 2013
Actual Record Close Date: July 26, 2013
Hearing Officer: Mary Noe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 17, 2013
For the Student:
ANDREA ANNA LELLA, Advocate
parent
For the Department of Education:
Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 11, 2013
For the Student:
ANDREA ANNA LELLA, Advocate
Father
Aunt (via telephone)
For the Department of Education:
The parent requested an Impartial Hearing on March 25, 2013. I was appointed on March 26. The complaint was amended on May 14. The case was scheduled for a hearing on May 14. The hearing was adjourned at the request of one of the parties till May 20. May 20 hearing was adjourned till June 12. The district did not respond to the amended request and on June 11, I accepted the amended request. At the hearing on June 17, the district requested the statutory resolution period, which was granted. On June 19, the parent waived the statutory time and the hearing was scheduled for July 11. The parent was represented by Advocate Andrea Anna Lella. The District was represented by Marilyn Zagha.
The parent in their request is seeking a pendency order to continue the student’s home based program of 3 – one hour until the hearing has concluded and 3 additional hours of services at home or on an Exh. A)
EVIDENCE
DISCUSSION
THE DISTRICT’S IEP IS NOT APPROPRIATE
In determining whether the IEP proposed by the district was appropriate, the Court must determine "(1) whether the state complied with the procedural requirements of IDEA, and (2) whether the challenged IEP was 'reasonably calculated to enable the child to receive educational benefits.' " Walczak v. Florida Union Free School Dist. 142 F.3d 119, 129 (2d Cir.1998) quoting Board of Educ. v. Rowley, 458 U.S. at 206-07.
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PARENT HAS NOT MET THEIR BURDEN FOR PRIVATE EDUCATIONAL
SERVICES
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for the 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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). . Bd. of Educ. of Hendrick Hudson Cent. School Dist. v. Rowley, 458 U.S. 176, 197 n. 21 (1982). Instead, states are obligated to provide a basic floor of opportunity through a program individually designed to provide educational benefits to the child. Seattle Sch. Dist., No. 1 v. B.S., 82 F.3d 1493, 1498 (9th Cir.1996); Ash v. Lake Oswego Sch. Dist., 980 F.2d 585, 587 (9th Cir.1992).
PENDENCY
During the pendency of judicial or administrative proceedings, if "the State or local educational agency and the parents otherwise agree, shall remain in his thencurrent education placement." 20 U.S.C. § 1415(j) (emphasis added). This procedural safeguard is commonly known as the "stay put provision" and its purpose is to prohibit "state or local school authorities from unilaterally from the classroom ... during the pendency of review proceedings." Honig v. Doe, 484 U.S. 305, 306, 308 (1988). A parent can invoke the stay put provision when the school system proposes "a fundamental change in, or elimination of, a basic element of the [then-current education placement]." Lunceford v. Dist. of Columbia Bd. of Educ., 745 F.2d 1577, 1582 (D.C.Cir.1984); Alston, 439 F.Supp.2d at 90. The pendency provisions apply even when a child is transitioning from preschool to a school-age program (Application of a Child with a Appeal No. 96-48; Application of a Child with a Appeal No. 00-037; Application of a Appeal No. 01-003). Therefore the student has pendency pursuant to federal law during the impartial hearing process.
IT IS HEREBY ORDERED that the parent’s requests for additional are denied.
Dated: August 9, 2013
MARY NOE, ESQ.
Impartial Hearing Officer
MN:jj
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 Amended Hearing Request, 5/8/13, 5 pp.
B IEP, 3/1/13, 10 pp.
C Preschool IEP, 8/3/12, 23 pp.
D Preschool IEP, 4/18/12, 23 pp.
E Letter from Developmental , 4/25/13, 1 pg.
F Report, 2/8/13, 4 pp.
DEPARTMENT OF EDUCATION
1 IEP, 3/1/13, 14 pp.
2 Report, 2/4/13, 2 pp.