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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 12, 2014
June 19, 2014
September 10, 2014
October 2, 2014
Actual Record Closed Date: October 27, 2014
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 12, 2014
Attorney — Student
Parents
Niece of — Student
Impartial Hearing Representative — DOE
IEP Teacher (Via Telephone) — DOE
Special Ed Teacher (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 19, 2014
Attorney — Student
Parents
Cousin of the — Student
Sister of the — Student
Impartial Hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 10, 2014
Attorney — Student
Parents
Impartial Hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 2, 2014
Attorney — Student
Parents
Impartial Hearing Representative — DOE
INTRODUCTION
On 05/01/2014, 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) (1).
Appended to the record are lists of persons in attendance and the documents received in evidence. Parent commenced this matter through hearing request, dated 04/29/2014. Allegations included that the student’s Individualized Education Programs (IEP) for the 2011-2012, 2012-2013 and 2013-2014 school years did not offer the student a Free and Appropriate Public Education (FAPE) causing significant regression, parent has been denied meaningful participation in the IEP process, Department of Education (DOE) has failed to properly evaluate the student and DOE has failed to deliver IEP services to the student. (Ex J 4-5)
Relief sought includes:
Immediate reconvene of the Committee on Special Education, appropriate student placement, a services ( ), development of an appropriate IEP, a and 300 hours each of compensatory services (Ex J 5-6)
On 06/19/2014 parties joined in a motion to extend the compliance date by 30 days due to a , and recent IEP meeting. Motion was granted and compliance date extended through 08/13/2014. (IHO Ex III)
On 08/14/2014 DOE made a motion to extend the compliance date by 30 days due to allow for completion of , and to allow for an IEP meeting to take place. Motion was granted and compliance date extended through 09/12/2014. (IHO Ex IV)
On 09/10/2014 parties joined in a motion to extend the compliance date by 30 days due to parties awaiting a delivery , which each party wanted entered into the record. Motion was granted and compliance date extended through 10/12/2014. (IHO Ex VII)
On 10/02/2014 parties joined in a motion to extend the compliance date by 30 days due to allow parties to submit written closing statements. Motion was granted and compliance date extended through 11/10/2014. (IHO Ex VIII)
BACKGROUND
At hearing of 06/12/2014 DOE representative conceded the student was in need of “an Evaluation…And the CSE is in the process of conducting new evaluations and getting a new IEP.” (T 17)
Parent representative noted that the IEP meeting for the student, due in December of 2013, had not yet been conducted. (T 18)
Student is described by parent representative as: “a ten year old fourth grader currently . He was parentally on October 21st, 2013 and continues to be homeschooled…most recent IEP is from December of 2012. The DOE concedes…need of new evaluations and a new IEP. And the district has already begun scheduling new evaluations with consent…“ (T 22)
Information evidenced at hearing regarding the student includes Student , at least in part, due to being born without an outer ear on his left side (ear microtia) and is partially deaf (T 239), requires an FM unit (T 244 (T 244), and and benefited from such services (T 214).
At hearing of 06/19/2014, each party, on the record, indicated an agreement had been reached regarding several of the issues raised in the parent’s Due Process Complaint. (Ex J)
Agreement was reflected in Statement of Agreement and Interim Order, dated09/11/2014. (IHO Ex V)
Said Order included that the DOE shall:
1. Perform a Evaluation within 30 days of the date of this Order;
2. Perform an within 45 days of the date of this Order;
3. Perform a evaluation within 45 days of the date of this Order;
4. Within 30 days of student placement consider performing
5. Issue a Related Service Authorization for 80, thirty minute sessions of Therapy services, to be utilized by the student within one year of the date of the issuance of said RSA;
6. Issue a Related Service Authorization for 40, thirty minute sessions of , to be utilized by the student within one year of the date of the issuance of said RSA.
Issues related to compensatory tutoring services were noted to be addressed at a continued hearing date.
At hearing of 09/11/2014 parties agreed to continue the hearing after completion of a neuropsychological evaluation which was already underway. (T 340)
DOE POSITION
At hearing of 06/152/2014 and 09/11/2014, ), confirmed that the DOE conceded it had not offered a FAPE, to the student, for the 2014-2015 school year. (T 22 & 307)
DOE does not agree with the parent insofar as the appropriate services the student should receive relative to the recently performed evaluations. (T 307)
As of the final date of hearing, 10/02/2014, parent was still seeking an appropriate placement to include a services. (T 349)
Student was still home, though offered which the parent declined. (T 350)
DOE was still considering conducting an IEP meeting to address the student’s situation. (T 350)
As of the record close date, 10/27/2014, the DOE was still contending another IEP meeting needed to be held to review the latest evaluation. “An IEP reconvene meeting was held on September 8, 2014 to discuss based on the new evaluations and currently, another IEP meeting is scheduled in order to consider the recommendations and findings made by conducted for Angel. (DOE Ex. 39). “ (IHO Ex IX 2)
DOE position is that the student does not require the sought after services of a paraprofessional nor the degree of compensatory services sought. Student “…does not require an as there is no evidence to support the recommendation or and the District does not provide individual paraprofessionals simply for academics…if compensatory education should be issued, it is the DOE’s position that any award of compensatory services should be in the form of independent hours is appropriate compensation as (student) has not attended school since the start of the 2014-2015 school year and there is no evidence that (student) would require a greater number of hours. “
(IHO Ex 2)
PARENT POSITION
At hearing of 09/11/2014, parent presented the parent’s position at hearing, and via Petitioners Closing Brief. (IHO Ex X)
Parent contends that the DOE has not provided any evidence to counter the allegation that it failed to provide a FAPE to the student for the 2011-2012, 2012-2013, 2013-2014 and 2014-2015 school years. (Ex J & X 3)
Parent closing brief details parent concern and disagreement with IEPs developed for the student since the 2011-2012 school year. This includes disagreement with classification (Ex F-1, Ex 39-9), indications that the student failed to make progress as it was noted “needs improvement” in almost all academic areas at the time (Ex 19-2), DOE failed to present any evidence of progress and failed to evidence the student had met any IEP goals. (IHO Ex X 6)
Parent contends the student failed to make progress during the 2012-2013 school year (Ex 19-2, T 233). Parent points to student of 11/27/12 notes the student operated in the 2nd percentile in math (Ex H 3) and his 2012/2013 IEP levels failed to increase (Ex I 1)
For the 2013-2014 school year the (T 256) which resulted in . (T 258) Student did not receive services during the 2013-2014 school year. (T 258) DOE failed to conduct a meeting for the school year. (T 77)
DOE conceded it had not offered a FAPE for the 2014-2015 school year and failed to convene an IEP meeting. (T 77)
Parent contends as of 10/06/2014 an appropriate placement is still not available. (IHO Ex X 8)
PARENT WITNESS
) testified at hearing of 09/11/2014.
confirmed the student is: (T 315), diagnosed (T 315), (T 316), over the last few years (T 316), is in need of three times weekly for 30 minute sessions (T 316), still has anxiety due to experiences with the DOE (T 321), student used to like school (T 322), (T 322).
(T 328), has difficulty reading (T 329) and would
In math
and would . (T 330)
in whatever subject is needed.”(T 333)
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 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 CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; 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 procedural violations are 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 decision-making 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]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; 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], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; 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, 142 F.3d at 130; 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 T.P., 554 F.3d at 254; 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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; 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 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 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).
The IEP, of 12/13/2011, (Ex F 16) with standard promotional criteria. (Ex F 16).
Psycho-educational Evaluation of 11/20/2012, performed during the student’s IEP developed on 12/10/2012, while the , and (Ex I ) and continues to indicate modified promotional criteria
DOE then failed to develop an IEP for the student until the hearing process was initiated. IEP of 09/08/2014 includes: student requirement of (Ex 37-3), no current reading and coming year. (Ex 37-12 & 13)
I find the above evidence and the recent evaluations evidence a failure of the student to make progress and a failure by the DOE to provide a FAPE to the student. The IEP does not identify the student’s needs nor provide services to address those needs. DOE failure to provide a FAPE was conceded for the 2014-2015 school year.
DOE failure is found to extend back to the 2011-2012 and 2012-2013 school years. Student was already noted to need improvement in almost all academic areas during the 2011-2012 school year. (Ex 19-2) No explanation was offered as to why the student’s classification the student’s education, such as , which went unaddressed in the IEPs as each year progressed. (Ex E & F)
DOE improperly placed the student for the 2013-2014 in a grade students, though he functioned well below the level of the other students. Parent credibly contends this . (T 256)
Recent evaluations include , dated 8/1/14, reflect scores as low as 1.2 for and as high (Ex 35-3) No explanation is given as to how the gap in scores justifies and does not appear an accurate level of instruction for the student. No explanation is offered as to why if the student is performing at would be modified. Conversely, if the lower indicators are accurate then no explanation is offered as to how the student’s needs would be addressed appropriately.
Student is the 2014-2015 school year. No evidence was presented to indicated the student can actually perform at level.
I note that the DOE has still not undertaken to deliver an appropriate IEP meeting for the student, claiming the most recent IEP of 09/08/2014 is still in draft form. (T 306)
In examining the record, and the arguments of the parent I find in favor of the parent regarding the appropriateness of .
The record evidences a need for a for the student. (T 319-320, Ex 32-1), is meeting.
IEP of 01/15/2010 contains a provision for speech language therapy and hearing education services (Ex E 12). However, it does not provide any measurable goals. DOE also has not evidenced the appropriateness of any goal or that the student met any goals. (Ex E 6-7)
IEP of 12/13/2011 contains a provision for speech language therapy and hearing education services (Ex F 12). The IEP does not provide any measurable goals. DOE also has not evidenced the appropriateness of any goal or that the student met any goals. (Ex F)
The November of 2012 Psycho-educational Evaluation includes himself…answers in fragment as skills” (Ex 7-1)
Student teacher of 2011-2012 and 2012-2013 testified the student would benefit from additional . (T 161)
I find the DOE failed to serve appropriately the student’s needs, and has still not evidenced performing the
COMPENSATORY SERVICES
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).2
As indicated above the DOE has been found to have failed to provide the student a FAPE for the past several years. The most recent result of this failure was to leave the student without a Parent contends the regression of the student warrants 300 hours of compensatory education to remedy the DOE failure. (IHO Ex X 24-25)
is noted to be presently at an instructional functional level for math. (IHO Ex 37-11) IEP also / functional level for reading which I find to be inaccurate considering the evaluations and reports entered into evidence. Evaluation only identifies word reading at a 7th grade level and fails to evaluate nor determine the student‘s correct level regarding reading. (Ex 37-1 & 37-7)
I find 300 hours to be an appropriate compensatory education award for the student considering he is without appropriate placement and is in need of remediation to make up for past and continuing failure of the DOE to provide a FAPE.
I note the current evaluation also . (Ex 39-10)
Parent also contends the student is entitled to (T 320), (T 320), and (T 321), which resulted in the student no longer . (IHO Ex X 26)
I find the student is in need of services to alleviate the DOE failure to provide a FAPE which leaves the school.
I find the student entitled such time as the student is appropriately placed. Once appropriately placed such services will be delivered in the school placement as warranted.
CONSIDERATION OF SPECIAL FACTORS -
Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP. Among the special factors in the case of a student whose , the CSE shall consider , and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 CFR 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Bd. of Educ., 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172; J.A. v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 [S.D.N.Y. 2009]; M.M., 583 F. Supp. 2d at 510; Tarlowe, 2008 WL 2736027, at *8; W.S., 454 F. Supp. 2d at 149-50; Application of a Student with a Disability, Appeal No. 09-101; Application of a Student with a Disability, Appeal No. 09-038; Application of a Student with a Disability, Appeal No. 08-028; Application of the Dep't of Educ., Appeal No. 07-120). To the extent necessary to offer a student an appropriate educational program, an IEP must identify the supplementary aids and services to be provided to the student (20 U.S.C. § 1414[d][1][A][i][IV]; 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v][a], [b][3]; M.W., 2013 WL 3868594, at *5; Piazza v. Florida Union Free Sch. Dist., 2011 WL 1458100, at *1 [S.D.N.Y. Apr. 7, 2011]; Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 [N.D.N.Y. Sept. 29, 2009] [discussing the student's IEP which appropriately identified program modifications, accommodations, and supplementary aids and services]; P.K., 569 F. Supp. 2d at 380; see also Schreiber v. East Ramapo Central Sch. Dist., 700 F. Supp. 2d 529, 556 [S.D.N.Y. 2010] [noting that when defending a unilateral placement as appropriate under the IDEA, a parent in some circumstances may also be required to demonstrate that appropriate "supplementary aids and services" are provided to the student]).
In New York State, policy guidance explains that "the IEP must include a statement (under the applicable sections of the IEP) if the student needs a particular device or service (including an intervention, accommodation or other program modification) to address one or more of the following needs in order for the student to receive a [FAPE]" ("Guide to Quality Individualized Education Program [IEP] Development and Implementation," at p. 25, Office of Special Educ. [Dec. 2010], available at http://www.p12.nysed.gov/specialed/publications/ iepguidance/IEPguide Dec 2010.pdf). "The behavioral interventions and/or supports should be indicated under the applicable section of the IEP," and if necessary, "[a] student's need for a [BIP] must be documented in the IEP" (id.). State procedures for considering the special factor of a that of others may also require that the CSE consider having developed for a student in certain non-disciplinary situations (8 NYCRR 200.4[d][3][i], 200.22[a], [b]). State regulations define of determining why a student identification of the problem behavior, the definition concrete terms, the identification of the contextual factors that and probable consequences that serve to maintain it (8 NYCRR 200.1[r]). According to State regulations, be based on multiple sources of data and must be based on more than the student's history (8 NYCRR 200.22[a][2]). An FBA must also include a baseline setting forth the "frequency, duration, intensity and/or latency across activities, settings, people and times of the day," so (if required) may be developed "that addresses for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement" (8 NYCRR 200.22[a][3]).
State regulations call for the procedure of using when , and the Second Circuit has explained that when required "[t]he failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's behaviors, leading to their being addressed in the IEP inadequately or not at all (R.E., 694 F.3d at 190). However, the failure to comply with this procedure does not automatically render a BIP deficient (M.W., 2013 WL 3868594, at *5; R.E., 694 F.3d at 190; A.D., 2013 WL 1155570, at *9).
With regard to a BIP, the special factor procedures set forth in State regulations further note that the CSE or CPSE "shall consider the development of for a student with a disability when: (i) the student , including an intervention, accommodation or other program modification is needed to address the student's behavior that impedes his or her learning or that of others, the IEP shall so indicate" (8 NYCRR 200.22[b][2]). If the CSE determines that for a student, " : (i) the baseline measure of including the . . . ; (ii) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the the student, and provide consequences for and alternative acceptable ); and (iii) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity at scheduled intervals (8 NYCRR 200.22[b][4]).17 Neither the IDEA nor its implementing regulations require that the elements of a be set forth in the student's IEP ("Student Needs Related to Special Factors," Office of Special Educ. [April 2011], available at http://www.p12.nysed.gov/specialed/formsnotices/IEP/training/QA411.pdf). However, once a , "such plan shall be reviewed at least annually by the CSE or CPSE" (8 NYCRR 200.22[b][2]). Furthermore, "[t]he implementation of a student's [ ] shall include regular progress monitoring of the frequency, duration and intensity at scheduled intervals, as specified in and on the student's IEP. The results of the progress monitoring shall be documented and reported to the student's parents and to the CSE or CPSE and shall be considered in any determination to revise a student's or IEP" (8 NYCRR 200.22[b][5]).
In the instant case are noted to be a concern. Student: has had (T 151, 230231 & 255-257 & Ex 32 3-4), was unable to access and (T 319-320, Ex 32-1), is
I find the above behaviors warrant the DOE to
DERFERMENT TO CBST
DOE concedes the student is in need of evaluations, and entitled to development of an IEP, since one has not been drafted since December 2012. DOE does not agree with the remedies sought by the parent: “While the DOE acknowledges that the IHO has brought authority and fashioning equitable relief, the DOE asserts that it would be inappropriate for the IHO to order a specific program, related services, classroom support such as a paraprofessional, or even outside of the context of a full IEP meeting. The IEP team and the professionals that are required to sit in the IEP meeting would be able to consider all of the input of meeting participants and evaluations prior to recommending a program recommendation.” (T 23)
The DOE did assemble a team and an IEP dated 09/08/2014 was entered into the record on 09/10/2014. (T 306, Ex 37)
Despite the DOE position that the CBST deferral was not an appropriate remedy as a team needed to be assembled the DOE sought to identify the IEP entered into the record as a “draft”. “It has not been finalized; however, with the information that is in the packet, because we do not , this stands. This would be our recommendation. This is our recommendation right now.” (T 306)
On the final date of hearing, 10/02/2014, a placement offer still had not resulted from the “draft” IEP and the parent was still seeking an appropriate placement. (T 349350)
DOE was still considering at the date of final hearing making amendments to the IEP based upon new testing. (T 350) This is the same basic position the DOE had on the first day of hearing, which took place four months ago. (T 23)
Under State law, the Commissioner of Education may approve the provision of "special services or programs" to students with disabilities through a variety of methods, including contracts entered into by boards of education of public schools and "private non-residential schools . . . which are within the state" (Educ. Law §§ 4401[2][e], 4402[2][a]; see 8 NYCRR 200.1[d], 200.7). Although a particular private school may meet the Commissioner's criteria for approval to provide special education programs and services to students with a disability, it is the individualized needs of a student with a disability that will ultimately "determine which of such of services shall be rendered" by an approved private provider (Educ. Law § 4402[2][a]). While the DOE may have failed to place the student, identification of a specific New York State approved non public school placement must be consistent with the student's individualized needs, which must come from an appropriate IEP.
At this time, in order to serve the student’s needs and have him appropriately placed as soon as possible, I find the student is entitled to an immediate appropriate placement recommendation. To make an appropriate recommendation I find that the student is entitled to consideration of a deferment to CBST by the CSE team. This consideration must be undertaken by the CSE team so that any deferment would include an appropriate IEP with which to identify a placement.
ORDER
1. The DOE shall issue for 80, thirty minute sessions of , to be utilized by the student within one year of the date of the issuance of said RSA;
2. The DOE shall issue for 40, thirty minute sessions of , to be utilized by the student within one year of the date of the issuance of said RSA;
3. The DOE shall issue authorization for the student to obtain sessions weekly until such time as the student . Services to continue for one year from the issuance of the authorization to receive the service.
4. The DOE shall issue authorization for 300 hours of services to be utilized within thirteen months of the issuance to parent of such authorization.
5. DOE shall convene a CSE, which will consider deferment to the CBST for placement in a New York State approved non public school. CSE shall prepare and deliver to parent a completed IEP and offer of placement for the 2014-2015 school year within 20 days of the date of this Order.
6. DOE shall conduct a , if warranted, within 60 days of the student’s attendance at a school placement.
7. This decision is subject to appeal and review by the State Review Officer. Dated: November 3, 2014
, ESQ.
Impartial Hearing Officer
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
ENTERED 06/12/2014
A Social History dated 1/16/09 B Education Progress Report dated 1/26/09,[4] pages C IEP dated 3/23/09, 12 pages D IEP dated 3/26/09, 14 pages E IEP dated 1/15/10, 12 pages F IEP dated 12/13/11, 18 pages G Consent for Evaluation dated 9/21/12,[1] page H Evaluation dated 11/20/12, 6 pages I IEP dated 12/10/12, 15 pages J Due Process Complaint dated 4/29/14,[6] pages
ENTERED 06/19/2014
K Report dated 06/18/2014,[2] pages
DEPARTMENT OF EDUCATION
ENTERED 06/12/2014
3 CSE IEP Notice dated 6/2/14, 3 pages
5 Final Notice of Recommendation, dated 12/10/12, 1 page
7 Duplicate Excluded
8 Declaration of Participation dated 11/19/12, 1 page
9 IEP Meeting Notice dated 11/19/12, 4 pages
10 Duplicate Excluded
11 Notice of Need dated 9/21/12, 1 page 12 Excluded Duplicate 13 Notice of IEP Meeting dated 11/29/11, 4 pages 14 SESIS Events Log retrieved 6/4/14, 2 pages 15 SESIS Service Log retrieved 6/2/14, 16 pages 16 Attendance Record retrieved June 2014, 1 page 17 Email dated 5/13/14, 1 page 18 2003 State Test Scores Retrieved 6/2/14, 1 page 19 Cumulative Record from 6/28/10 to 10/21/13, 2 pages 20 Letter dated 9/13/13, 1 page 21 Letter from dated 9/17/13, 1 page 22 Letter dated 10/17/13, 1 page 23 Parent Coordinator Log Notes 8/23/13 to 10/18/13, 3 pages 24 Teachers Report Card September 2011 to June 2013, 2 pages 25 Teachers , dated 2011-2012, 1 page 26 Teachers , dated 2012-2013, 1 page 27 Level Equivalencies Dated 6/9/14, 2 pages
ENTERED 06/19/2014
28 Excluded 29 Excluded 30 Excluded 31 Excluded 32 Excluded
ENTERED 09/10/2014
28 Evaluation, dated 7/22/14, 10 pages 29 Evaluation, dated 7/22/14, 3 pages 30 School, Functional Evaluation, dated 7/22/14, 5 pages 31 Social History, dated 7/22/14, 2 pages 32 Evaluation, dated 5/14/14, 4 pages 33 AA Form, dated 8/4/14, 2 pages 34 Independent Evaluator Information, dated 8/1/14, 2 pages 35 Evaluation, dated 8/1/14, 4 pages 36 AA–5, dated 8/6/14, 1 page 37 IEP dated 9/2014, 15 pages 38 Case Conference Summary, dated 9/8/14, 1 page
ENTERED 10/02/2014
39 evaluation, dated 8/22/14, 10 pages. 40 Related to , dated 9/23/2014, 6 pages.
IMPARTIAL HEARING OFFICER
ENTERED 06/12/2014
I Notice of Hearing dated 5/1/14, 3 pages II Appearance dated 5/1/14, 1 page
ENTERED 09/10/2014
III Grant of Extension of Timelines, dated 6/20/14, 3 pages IV Grant of Extension of Timelines, dated 8/14/14, 3 pages V Hearing Officer's Statement of Agreement and Order dated 6/20/14, 6 pages VI Notice of Appearance, , dated 8/5/14, 1 page
ENTERED 10/02/2014
VI Corrected Exhibit V, Order dated 9/11/14, 7 pages VII Granted Extension of Timeline, dated 9/10/14, 3 pages
ENTERED 10/27/2014
VIII Granted Extension of Timelines, dated10/03/2014, 3 pages IX DOE Closing Brief, dated 10/27/2014, 4 pages X Petitioner’s Closing Brief, dated 10/27/2014, 27 pages
Footnotes
[1] Duplicate Excluded
[2] Excluded not properly disclosed
[4] Consent for New Evaluations dated 5/1/14, 1 page
[6] Duplicate Excluded