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THE UNIVERSITY OF THE STATE OF NEW YORK
NEW YORK STATE EDUCATION DEPARTMENT
__________________________________________ In the Matter of [parent] and [parent], on behalf of [student],
Petitioners, Findings of Fact and and Decision [ ] School District, Respondent. __________________________________________
This case was brought before me upon my designation as impartial hearing officer to hear this matter, pursuant to the Individuals with Disabilities Education Act, 29 U.S.C. §1415(f)(1) and Part 200 of the Regulations of the New York State Commissioner of Education.
[student] is a __ -year-old student currently ... receiving services from the [ ] School District ([ ], school district, or district). In 2013, [student] was initially classified as and recommended for resource room services. In the 2013-2014 school year, his parents ([parent], [parent], parent or parents) sought ... and brought the instant hearing, claiming the district failed to provide [student] with a free appropriate public education (FAPE). Their complaint asked for ... IHO Exs. I, V, VI.
Both Petitioners and Respondent school district were represented by counsel. The district was represented by ... The parents were represented by ...
PROCEDURAL HISTORY AND BACKGROUND
The parents’ due process complaint notice,...
There were four days of hearing, held in the [ ] School District. Hearings were conducted on ... Requests for extensions of time were granted in this case, and entered in the record as IHO-Ex. XVII. The record closed upon receipt of all records on June 9, 2014.
The hearing in this case was undertaken by the parents ... [student]
There was no dispute that ... The [ ] school district argued that he had been receiving a FAPE ... The district also argued several jurisdictional points: ...
DISTRICT CASE
The district had five witnesses, four from the school district, the Director of Special Education, school psychologist, and teachers ... and ...
[ ] testified that .. was Director of Special Education and ... He testified that [student] ... [student] had an IEP ... which included ... ... he was given a placement of ... explained that [student] was given ... On cross-examination, [student]’s teachers ... have reported ...
He acknowledged that he had several conversations with ... In ... he chaired a CSE meeting, held at the request of the parents, who requested ... There was no consensus reached at the meeting. [ ] testified that ... is a school psychologist employed by the [ ] school district. ... has a Master’s degree and ... holds permanent certification as a school psychologist. ... conducted a triennial evaluation for [student] in the ... school year, which was completed in ... ... described the evaluation at length, beginning with ... qualified for ... classification ...
[ ] attended the CSE meeting in ... at which the results of ... evaluation was discussed. It was agreed that ... also attended a CSE meeting in ... the discussion was based on the ... The recommendation was to ... There was no agreement at that meeting; there was disagreement that resulted in the instant due process hearing.
At the time of ... evaluation ... ... acknowledged that [student] had ...
[ ] teacher at [ ] testified that ... had [student] as a ... student in ... class in the ... school year. The class was ... At the beginning of the year ... attended a CSE meeting in ...
[ ] testified that [student] was a ... in ... classroom ... described ... work ... stated that [student]’s grades were ... also cited ...
[ ] testified that ... conducted a formal assessment on [student] ... explaining that ... In conducting the assessment, ... outcome of the assessment was ... job ... schedule was ...
PARENT CASE
Witnesses for the parents included both parents, as well as ... and ...
[parent], [student]’s mother, testified at length about ... history. stated that [student] first ...
[parent] explained that she inquired about education ... parents were concerned because ... In his first semester at [ ], beginning in January 2013, [student] had very low grades and At the start of the ... school year in ... At the CSE meeting on ... they tried to get the committee to ... At that meeting, ...
[parent] testified about meetings ... noted that at the first CSE meeting in ... requested that ... [parent] testified briefly, to confirm ...
Also describing [student]’s history was [ ]. ... described a background that included ... ... described work ... began work with... At that point, ... conducted ... attended ... meetings ... role as being ... At ... meetings ... talked about ... concern ... also attended a CSE meeting, at which ... student] ... described [student] as ...
[ ] testified concerning evaluation ... conducted of [student]. ... evaluated [student] in ... At the time of ... evaluation, [student] ... conducted evaluation of [student] on ... and described the different tests administered ... reviewed school records and records from ... as well as reports from ...
testified at length about [student]’s ... testified that [student] requires ... explained the need for ... by stating that ...
[ ] reviewed the testimony of [ ] and offered several criticisms.
[ ]testified that ... ... described as ... The program ... described treatment ... starting with an explanation of ...
FINDINGS
This case presents ... legal issues regarding ... The sole issues before me are those issues related to ...
A purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE). -3- 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. Application of a Child with a Disability, Appeal No. 07-008, Application of the Bd. of Educ., Appeal No. 06-076; Application of a Child with a Disability, Appeal No. 06-059; Application of the Bd. 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. Under New York law, the burden of proof has been placed 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 (Educ. Law § 4404[1][c]; modifying the holding in Schaffer v. Weast, 546 U.S. 49 (2005).
The instant case requires close consideration of ...
... compels a finding that the district failed to provide a FAPE for [student]. There was no dispute that decisions concerning [student]’s education had been made at those CSE meetings. All parties agreed ... Under the IEP, [student] had been given ...
It was undisputed that at the start of the ... year, [student] was ... The district claimed ... several additional factors were elicited from witness testimony. ... The committee listened to ... In a follow-up report on ... elaborated on ... The district argued that ... Everyone agreed but the district argued ... To ... parents, the child had ...
In sum, I note ... For all the above, I find that [ ] failed to provide a FAPE for [student]. The district having failed to sustain its burden, analysis moves to the issue of remedy. At the outset, it must be noted that ... The district has argued that ... The district also argues ... the equitable authority of an IHO ...
Analysis then turns to the diagnosis of [student]. To the parents, the ... and that it -4- failed to provide an appropriate academic program and support. In deciding whether the district provided a FAPE for [student], it was not necessary to examine ...
There is clearly disagreement ... There was no dispute that [student] ... Does it matter in framing a remedy? As stated above, ... I decline to so rule.
I find the evidence persuasive that [student] needs ... I do not find the evidence ... to be persuasive.
There was no evidence offered concerning ... The request is denied.
DECISION AND ORDER
1. The district is ordered to ...
2. Petitioners’ application for ... is denied.
3. Petitioners’ application for ... is denied.
IT IS SO ORDERED.
Date: June 13, 2014
_____________________________ Nancy M. Lederman
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the Board 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.
If the parent plans to appeal the decision, 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 so that a certified copy of the hearing record may be prepared for submission by the school district. Failure to file the notice of intention to seek review is a waiver of the right to appeal the decision.
If the school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
The petition for review shall be served upon the opposing party 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. (8 NYCRR §279.2[b])
The rules of procedure for proceedings before a State Review Officer are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
APPENDIX A
WITNESSES
District witnesses Director of Special Education, [ ] School District School Psychologist, [ ] School District Teacher, [ ] School District Teacher, [ ] School District ....
Parent witnesses [parent], parent [parent], parent ... ... ...
APPENDIX B
EXHIBITS
School District Exhibits 4 Student Report Card Summary, 1st Marking Period, undated, 1 page 7 IEP, ... School District, 1/10/13, 8 pages 8 Prior Written Notice, 3/12/13, 3 pages 9 Meeting Notice, 3/12/13, 3 pages 10 Social history triennial update, 3/25/13, 2 pages 11 Prior Written Notice, 3/26/13, 2 pages 12 CSE CPSE Meeting Minutes, 3/26/13, 6 pages 13 IEP, 3/26/13, 12 pages 14 Educational Evaluation, 3/25/13, 6 pages 15 Note, ... – May 21, Undated, 1 page 16 Meeting Notice, CSE, 4/20/13, 3 pages 17 Student Detail, 11/13/13, 1 page 19 Attendance Report, 9/16/13-1/8/14, 6 pages 20 ... 11/13/13, 1 page 21 ... Form, Undated, 2 pages 22 Letter, ... letter, 11/13/13, 1 page 23 ... Form, 11/13/13, 1 page 24 ... Letter, 12/6/13, 1 page 25 ... Form, 12/6/13, 1 page 26 ... Undated, 1 page 27 ... 10/22/12, 12 pages 28 Grade Report for 2014 Student Report Card, 2/6/14, 1 page 29 ... Form, 2/26/14, 1 page 30 Interim Grade Report, 3/7/14, 1 page 35 ... Plan, 10/19/12, 32 pages 36 ... 10/19/12, 63 pages 43 ... 11/21/12, 1 page 44 ... Updated ... 3/1/13, 4 pages 45 ... Addendum, 3/1/13, 1 page 47 ... Updated ... 9/24/13, 4 pages 53 Letter, ... 12/2/13, 3 pages 54 Letter, ... 12/6/13, 2 pages 55 Letter, .. ..., 12/16/13, 2 pages 56 Letter, ..., 12/23/13, 1 page 57 Letter, ... with attachment report ... 8/13/13, 8 pages 58 Letter, ..., 12/26/13, with attached email, [parent] (12/22/13); ... (9/24/13), 8 pages 59 Letter, ..., 1/6/14, 2 pages 60 Letter, ..., 1/8/14, 1 page 61 Letter, ..., 1/13/14, 1 page 62 Letter, ...with fax cover sheet, 1/13/14, 2 pages 63 Letter, ... 1/15/14, 1 page
-8- 64 Letter, ...with attachment – 1/16/14, 4 pages 65 Letter, ..., 1/21/14, 1 page 66 Letter, ...with fax cover sheet, 1/27/14, 2 pages 67 Letter, ... with cover sheet ... 2/14/14, 3 pages 68 Notice of Resolution Session, ... 2/18/14, 1 page 70 Letter, ..., 2/21/14, 2 pages 71 Letter, ..., appointment scheduling letter, 2/21/14, 2 pages 72 Letter, ..., 2/24/14, 1 page 74 Letter, ...with fax cover sheet, 2/24/14, 2 pages * Documents marked for identification as Exhibits 1-3, 5-6, 18, 31-34, 37-42, 46, 48-52,
69, and 73 were not entered into evidence. Parent Exhibits A Curriculum Vitae of ... Undated, 3 pages B ... Report and ... Recommendations, 12/11/13, 3 pages C ... Update to Report and ... Recommendations, 1/29/14, 3 pages D Curriculum Vitae of ... 5/2/14, 12 pages Hearing Officer Exhibits I Letter, ... initial impartial hearing notice, 2/12/14, 1 page II Letter, ..., motion for insufficiency, 2/19/14, 2 pages III Letter, ... District Answer, 2/21/12 (sic), 1 page IV Letter, ..., ruling ... 2/24/14, 1 page V Letter, ..., the amended request of parent, 2/21/14, 3 pages VI Letter, ..., motion to strike ... the parents’ answer, 2/28/14, 1 page VII Letter, ..., response, 3/3/14, 2 pages VIII Letter, ... motion to strike, 3/4/14, 2 pages IX Letter, ..., response to motion of ..., 3/5/14, 1 page X Letter, ..., rulings on ... 3/6/14, 1 page XI Letter, ..., motion to adjourn, 3/11/14, 1 page XII Letter, ..., opposing motion to adjourn, 3/11/14, 2 pages XIII Letter, ..., ruling on ... 3/14/14, 1 page XIV Letter, ..., motion ... 3/24/14, 1 page XV Subpoena, ..., 3/25/14, 2 pages XVI Letter, ... with attachments ... 3/24/14, 5 pages XVII Letter, ..., opposition to motion ... 3/28/14, 2 pages XVIII Decisions on Extension of Deadline for Decision, 4/29/14 - 5-23-14, 2 pages Additional Documents Entered in the Record XIX Letter, ..., requesting withdrawal, 4/28/14, 1 page XX Letter, ..., motion ... 4/28/14, 2 pages XXI Letter, ..., responding to ... motion, 4/29/14, with attached ... 6 pages XXII Memorandum of Law, Impartial Hearing, ..., 5/29/14, 28 pages XXIII Memorandum of Law, ... ..., 5/29/14, 29 pages