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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
Hearing Requested By: Parent
Date of Hearing: February 26, 2014
Actual Record Closed Date: March 17, 2014
Hearing Officer: Daniel Ajello, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 26, 2014
For the Student:
Provider (Via Telephone)
Translator
For the Department of Education:
District Representative (via telephone)
INTRODUCTION
On January 16, 2014, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.
On February 26, 2014, a hearing was conducted. Appended to the record are lists of persons in attendance and the documents received in evidence.
BACKGROUND
This matter was instituted by the impartial hearing request dated 01/14/2014. Parent challenges the recent Individualized Education Program (IEP) of November 25, 2013 and seeks
PARENT POSITION
Parent contends that the parent training, thus far, has addressed her child’s progress, but how to deal with . (T 36)
PARENT WITNESS
DEPARTMENT OF EDUCATION POSITION
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with 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 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 student is offered a FAPE 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
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 or most recent " 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 enabling him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[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 Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a , Appeal No. 04-046; Application of a Child with a , Appeal No. 02-014; Application of a Child with a , Appeal No. 01-095; Application of a Child Suspected of Having a , Appeal No. 93-9).
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 (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]). The burden of proof is on the school district during an impartial hearing. (Educ. Law § 4404[1][c]).
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 (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).
RECOMMENDED SERVICES OF DOE IEP OF 11/25/2013
Parent alleges in general that a teacher was not present at the IEP meeting and a translator was required. (T 71-72)
IEP indicates appropriate parties in attendance and content and testimony indicate parent was understood and her concerns were noted throughout the IEP document. Parent teacher attended the meeting as well as a team member. (Ex Y 2, 6 & 7) , as well as the IEP document itself, evidence the meeting was conducted appropriately and contained the proper elements that resulted in an appropriate IEP. reviewed the recommendation made by the team. The team had current progress reports, were increased and parent options to retain services for her household outside of the IEP process were also discussed. IEP meeting resulted in a recommendation and services for the student that included an increase in (T 23-24, 28, 43 & 47-48) Parent training and Parent challenges sufficiency of State regulations require that an IEP indicate the extent to which parent will be provided to parents, when appropriate (8 NYCRR 200.4[d][2][v][b][5]). State regulations further provide for the provision of parent for the purpose of enabling parents of students to perform appropriate follow-up intervention activities at home (8 NYCRR 200.13[d]). Under State regulations, the definition of "related services" includes parent (8 NYCRR 200.1[qq]). Parent is defined as "assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the that will allow them to support the implementation of their child's individualized education program" (8 NYCRR 200.1[kk]; see 34 CFR 300.34[c][8]). However, courts have held that a failure to include parent on an IEP does not constitute a denial of a FAPE where a district provided "comprehensive parent training component" that satisfied the requirements of the State regulation (see M.W. v. New York City Dep't of Educ., 2013 WL 3868594, at *7 [2d Cir. July 29, 2013]; R.E., 694 F.3d at 191; C.F., 2011 WL 5130101, at *10; M.N. v. New York City Dep't of Educ., 700 F. Supp. 2d 356, 368 [S.D.N.Y. Mar. 25, 2010]; M.M., 583 F. Supp. 2d at 509). Recently, the Second Circuit explained that "because school districts are required by [State regulation] to provide parent , they remain accountable for their failure to do so no matter the contents of the IEP. Parents can file a complaint at any time if they feel they are not receiving this service" (R.E., 694 F.3d at 191; see 8 NYCRR 200.13[d]; M.W., 2013 WL 3868594, at *7). The Court further explained that "[t]hough the failure to include parent in the IEP may, in some cases (particularly when aggregated with other violations), result in a denial of a FAPE, in the ordinary case that failure, standing alone, is not sufficient to warrant reimbursement" (R.E., 694 F.3d at 191; see A.D., 2013 WL 1155570, at *12; F.B. v. New York City Dep't of Educ., 2013 WL 592664, at *11-*13 [S.D.N.Y. Feb. 14, 2013]; F.L., 2012 WL 4891748, at *10; K.L., 2012 WL 4017822, at *14).
IEP does include as a service, but does not detail how the service will assist the parent in understanding the of the child, provide the parent with information about child development; and helping the parent to acquire the necessary skills that will allow her to support the implementation of their child's individualized education program. (8 NYCRR 200.1[kk]; see 34 CFR 300.34[c][8]).
DOE witness does state that parent training takes place at the school. However, no correlation is made between any training performed at school and the parent, or student, in question. (T 28)
In this case parent training is included in the IEP and the school has not evidenced a comprehensive parent training component of any kind.
Witnesses frank testimony included that that the parent may want to define the parent training more concretely. (T 38)
Parent and witness relate the parent’s need for IEP does contain detailed information about the student and his needs relative to the parent’s concerns. This includes parent concerns with as well as and unstructured time. Management needs include training to help parent structure the evenings with the student. (Y 6 & Y 7)
I find that the parent training component of the IEP is not clearly detailed to identify and deliver the parent training and counseling services as required to meet the student and parent’s need for counseling and training.
Though the parent training services are not clear, the SEIT does appear to be working on the need identified by the parent. AN worked with mom on t AN also indicates progress with dressing, . AN also works on skills with family members of the student. (T 39-40 & 66-69)
AN Also notes that mom is “present during my sessions and I do model for her and explain her methods and techniques that we use.” (T 58-59)
While the parent training is not clearly defined, parent concerns do appear to be addressed through various services delivered through the IEP.
Parent has also not signed for the additional parent 38)
Therefore I find that the lack of clarity in the IEP does not rise to the level of denying the student a FAPE, relative to the parent training
To the extent that the parties dispute that the student requires additional home-based services in order to receive a FAPE, several courts have held that the IDEA does not require school districts as a matter of course to design educational programs to address a to other settings outside of the school environment, particularly in cases in which it is determined that the student is otherwise likely to make progress in the classroom (see Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 [1st Cir. 2001]; Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 [11th Cir. 2001]; JSK v. Hendry County Sch Bd., 941 F.2d 1563, 1573 [11th Cir 1991]; see also Application of the Dep't. of Educ., Appeal No. 11-031).
The student’s current IEP and program do evidence student progress towards IEP goals.
Testimony from AN includes that she: works on IEP goals and he is making progress, that that students who receive more do better and that one hour is not enough to target all his goals. At least two hours a day would be better. (T 55-56)
The student does have areas of deficit as indicated in the IEP and targeted by IEP goals and services.
No deficit or deficiency in the IEP is alleged that prevents the student form having an opportunity to progress in all areas. A general statement regarding the benefit of an increase in services does not in and of itself evidence a failure of the DOE to provide a FAPE.
AN, the provider who services the student
Parent provided documents that confirm the student does indeed have a . For example, , of 03/21/2013, identifies student diagnoses of I do not find the student requires additional service to be afforded a FAPE.
ORDER
The parent’s claim is dismissed.
This decision is subject to appeal and review by the State Review Officer.
Dated: March 21, 2014
Daniel Ajello mv
DANIEL AJELLO, ESQ.
Impartial Hearing Officer
DA;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 Request for Due Process Proceedings, dated 1/14/14, 5 pages
B Letter from dated 3/21/13, 1 page
C Letter from dated 3/12/13, 1 page
D Letter from Department of Education, dated 3/22/13, 1 page
E Prescription from , dated 3/22/13, 1 page
F CPSE IEP Summary Page, dated 3/22/13, 1 page
G CPSE IEP Attendance Page, dated 3/22/13, 1 page
H Board of Education Approval and Authorization to Receive , dated 3/22/13, 1 page
I Final Notice of Recommendation, dated 3/22/13, 1 page
J Office of Persons , , dated 4/5/13, 1 page
K Early Intervention IFSP, dated 5/29/13, 6 pages
L Early Intervention Provider Progress Note, dated 8/2/12, 7 pages
M Letter to , dated 7/15/13, 2 pages
N CPSE IEP, dated 7/31/13, 22 pages
O Authorization of the IEP change, dated 7/31/13, 1 page
P Final Notice of Recommendation, dated 7/31/13, 1 page
Q Letter to the CPSE Administrator, dated 10/17/13, 2 pages
R , dated 11/14/13, 4 pages
S IEP Update, dated 11/8/13, 9 pages
T , dated 11/13/13, 20 pages
U , dated 11/13/13 , 1 page
V Report, dated 11/15/13, 7 pages
W , dated 11/19/13, 1 page
X , dated 11/14/13 and 11/22/13, 3 pages
Y IEP, dated 11/25/13, 3 pages
Z Authorization of the IEP Change, dated 11/25/13, 1 page
AA Final Notice of Recommendation, dated 11/25/13, 1 page
DEPARTMENT OF EDUCATION
NONE
HEARING OFFICER
I Email from Hearing Officer to Parties, dated 1/24/14, 3 pages