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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: May 14, 2013
June 18, 2013
July 22, 2013
Actual Record Closed Date: August 2, 2013
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 14, 2013
ANDREA ANN LELLA, Advocate — Student
District Representative (Via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 18, 2013
ANDREA ANNA LELLA, Advocate — Student
Mother — Student
Translator — Student
Director of Student Services — DOE
Director of Student Services — DOE
Coordinator of (Via Telephone) — DOE
Supervisor of — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 22, 2013
Advocate for — Parents
Parents
(Via Telephone) — Student
(Via Telephone) — Student
Interpreter — Student
Dir of Student Services — DOE
Dir of Student Services — DOE
By Complaint dated March 27, 2013, the matter of came before me as Impartial Hearing Officer pursuant to the Individuals with Act, 20 U.S.C. Sect. 1415(f)(1). I was appointed on April 5, 2013, after the recusal of other Impatial Hearing Officer (IHO)s. Appended to the record are the names of the persons who appeared.
The Complaint alleges violations in regard to the March 21, 2013 Committee on review of the Student. (Exh. A) The Complaint alleges that the Individualized Education Program (IEP) did not recommend an appropriate program, did not provide sufficient services for the Student, did not provide for a summer program. As relief, the parents seek an
The matter did not resolve through resolution. On May 14, 2013, a prehearing conference was held. (IHO Exh. 1) Hearing dates were held on June 18, 2013 and July 22, 2013.
Two timelines extensions were granted in this matter. (IHO Exh. 2) For each extension, I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that the extension was appropriate. The parties were provided written notice of each extension. There was no showing of any financial or other consequences to the parties or to the student’s educational well-being in connection with the extensions. There was no showing of any prejudice to the District in connection to the extensions.
FINDINGS OF FACT
The Student is a year old who is eligible for services as a Student with . (Exh. A)
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
On the first criterion, the District should show that it offered parents a A is offered to a student when (a) the District complies with the procedural requirements set forth in the Individuals with Act (IDEA), and (b) the IEP developed by its through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a only if the procedural inadequacies (a) impeded the child's right to a , (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
Here, the District recommended the same class that it provided the Student in 2012-2013. However, the record makes clear that this program was inappropriate for the Student during 2012-2013. The Student’s during the school year, and the Student’s overall grade The Student did not make
As a remedy, the parent is seeking this IHO to order the Student to be directly placed in the program at , the school. The District does not object to this request. It is noted that a student does not have to currently attend a school for a hearing officer to order future attendance at such school. A hearing officer or a court may simply order a student to attend a particular private placement in the future if it is appropriate to insure that a Student receives a . Branham ex rel Branham v. District of Columbia, 427 F.3d 7 (D.C. Cir. 2005); Application of a Student with a Appeal No. 08-103 n.9. As the Supreme Court stated in School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985):
The statute directs the court to “grant such relief as [it]
determines is appropriate.” The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be “appropriate.” Absent other reference, the only possible interpretation is that the relief is to be “appropriate” in light of the purpose of the Act. As already noted, this is principally to provide children with “a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.” 471 U.S. at 369.
The testimony here makes clear that this Student is appropriately placed in the classroom. The program provides to address the Student’s issues, which relate to . Indeed, the teacher from the program indicated that the Student would be “perfect” for this program. The District does not suggest any other placements for this Student. Again, the District raises no objection to this placement for the Student. Accordingly, I will order that this Student attend the for the forthcoming school year. Dated: August 16, 2013
_______________________
MICHAEL LAZAN, ESQ.
Impartial Hearing Officer ML: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 Complaint, dated 3/27/13 (3 pages) B IEP, dated 3/21/13 (12 pages) C Description of program criteria, undated (1 page) D Program, undated (2 pages) E Grade two Report Card, dated 3/7/13 (1 page) F 12 Month School Year Consent Form, dated 5/16/13 (1 page) G IEP Goal Support, undated (7 pages) H IEP Goal Support, undated (9 pages) I , dated 1/19/05 (9 pages) J , 6/13/13, 3 pages 95 95 K Grade 2 Report Card, 6/26/13, 1 page
IHO
I Transcript, 5/14/13, 8 pp II Timelines notice, 2pp