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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: September 24, 2014
Actual Record Closed Date: September 30, 2014
Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 24,
2014
The parent through her attorney requested an impartial hearing on August 14, 2014. I was appointed on period.
The student is currently grade.
The parent’s with the school’s decision to retain the student in the second grade for the 2014 – The school performed a psycho-educational evaluation of the student without parental consent. IEP, the
1. A determination that the student was denied a FAPE in the 2012-2013 and 2013-2014
school year;
2. A determination that the student is denied FAPE in the 2014-2015 school year due to the IEP created on June 23, 2014;
3. An interim order District’s expense;
4. An interim order awarding ;
5. An evaluation at the DOE’s expense at the enhanced rate;
6. Tutoring year;
7. A deferment to CBST;
8. An award of a Nickerson letter. (Exh. A) Parent submits the following documents to support their claims for relief: INITIAL PSYCHOLOGICAL EVALUATION DATED NOVEMBER 2011 (Exh. BB)
During .
EDUCATIONAL EVALUTION DATED May 28, 2014 (Exh. E)
The student .
Prior test results from November 2011 indicate her full scale IQ fell within ; received scores
At the current evaluation, frequent breaks and at home with an adult.
REPORT DATED DECEMBER 2011 (Exh. F)
The recommendation was a week for minutes; .
COUNSELING PROGRESS REPORT DATED JUNE 11, 2014 (Exh. M)
Student has received mandated counseling services
REPORT, GRADE , (Exh. N)
. .
PROGESS REPORT DATED June 10, 2014 (Exh. O)
Student exhibits gradual improvements over the . When presented with .
INITIAL SOCIAL HISTORY DATED NOVEMBER 30, 2011 (Exh. P)
The student’s parent reported that the student is doing well academically but has trouble pronouncing certain words and sounds.
COUNSELING PROGRESS REPORT DATED DECEMBER 21, 2012 (Exh. T)
The from the prior year.
REPORT DATED DECEMBER 21, 2012 (Exh. U)
The student continues to exhibit .
PROGRESS REPORT DATED DECEMBER 20, 2013 (Exh. V)
PROGRESS REPORT DATED MARCH 24, 2014 (Exh. V.3)
–
PROGRESS REPORT DATED JUNE 12, 2014 (Exh. V.5)
- 2013 and 2013 – 2014 school years, the student did not make appropriate educational gains
Dr. so that we could . ( . (T. 91)
not
DISCUSSION
Parent’s first claim is that the student was denied a FAPE in the 2012-2013 and 2013-2014 school year; 2014-2015 school year. A determination that the student was denied a FAPE in the 2012-2013 and 2013-2014 school year;
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and (b) the IEP developed by its Committee on Special Education (CSE) 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]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability,, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][l]). An appropriate program begins with an IEP which accurately reflects the results of evaluation to identify the child’s needs provides for the use of appropriate special education services to address the child’s special education needs, and establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).
Congress has since .
The IEP dated June 5, 2012 with (Exh. BB) .
The testing
The IEP dated because she was not in agreement with the psycho-educational testing done in May 2014. independent psycho-educational evaluation because of her disagreement but . evaluation is denied.
The parent
The parent days of referral to the CSE (Jose P., 553 IDELR 298; see R.E., 694 F.3d at 192, n.5; M.S., 734 F. Supp. 2d at 279; see also Application of the Bd. of Educ., Appeal No. 03-110; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092). Jurisdiction over class action suits and consent orders (and by extension, stipulations containing injunctive relief) issued by the lower federal courts rests with the district courts and circuit courts of appeals (see 28 U.S.C. § 1292[a][1]; Fed. R. Civ. P. 65; see, e.g., Luigino's, Inc., 423 F.3d at 141-42; Wilder v. Bernstein, 49 F.3d 69, 75 [2d Cir. 1995]; Pediatric Specialty Care, Inc. v. Arkansas Dep't of Human Serv., 364 F.3d 925, 933 [8th Cir. 2004]; M.S., 734 F. Supp. 2d at 279; E.Z.-L., 763 F. Supp. 2d at 594; Application of a Student with a Disability, Appeal No. 12- 039 [indicating that "[n]o provision of the IDEA or the Education Law confers jurisdiction upon a state educational agency or a local educational agency to sit in review of or resolve disputes over injunctions or consent orders issued by a judicial tribunal"]), and "it has been held that violations of the Jose P. consent decree must be raised in the court that entered the order" (see P.K. v. New York City Dep't of Educ., 819 F. Supp. 2d 90, 101 n.3 [E.D.N.Y. 2011]). Consequently, neither the IHO nor SRO have the jurisdiction to resolve a dispute regarding whether the student is a member of the class in Jose P., the extent to which the district may be bound or may have violated the consent order issued by a district court, or the appropriate remedy for the alleged violation of the order (R.K. v. New York City Dep't of Educ., 2011 WL 1131492, *17 n.29 [E.D.N.Y. Jan. 21, 2011], adopted at 2011 WL 1131522, at *4 [Mar. 28, 2011], aff'd sub nom. R.E., 694 F.3d at 167; W.T. v. Bd. of Educ., 716 F. Supp. 2d 270, 289-90 n.15 [S.D.N.Y. 2010]; see F.L. v. New York City Dep't of Educ., 2012 WL4891748, at *11-*12 [S.D.N.Y. Oct. 16, 2012]; M.S., 734 F. Supp. 2d at 279 [addressing the applicability and parents' rights to enforce the Jose P. consent order]).
The parent’s request for a Nickerson letter is denied.
Parent’s counsel
IT IS HEREBY ORDERED that the IEP team is to meet within 30 days of this decision to draft an appropriate IEP for the 2014 – 2015 school year. Dated: October 7, 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
A Impartial Hearing Complaint, dated August 14th, 2014, 4 pages B Parent Affidavit dated 9/18/2014, seven pages C Psychologist’s Affidavit, 9/18/2014, two pages D Parents’ Request for an IEE and Testing, dated 6/9/14,two pages E Educational Evaluation, May 28, 2014, 5 pages F December 19th, 2011, seven pages G IEP Meeting Notice, 2 pages, May 31, 2014. H IEP dated June 9th, 2014, 11 pages I IEP , dated June 9th, 2014, one page J Prior Written Notice, 3 pages, Dated June 17th, 2014 K CSE Assessment Plan, June 17, 2014, 2pp L Omitted M Counseling Progress Report, dated June 11, 2014, two pages N Report, 2 pages, undated O Report, June 10th, 2014, two pages P Initial Social History, dated November 30th, 2011, 4 pages Q Referral and Consent for Evaluation, Dated November 8, 2011, one page R Letter to CSE Requesting Evaluations, November 21st, 2014, one page S Report, December 7, 2012, one page T Report, dated December 21, 2012, one page U Report, dated December 21st, 2012, six pages V Academic Progress Report, 2013-14, six pages W IEP, dated December 11, 2012, 10 pages X IEP Sign in Sheet, dated December 11, 2012, one page Y IEP dated December 9, 2013, 14 pages Z IEP dated December 2011, 10 pages AA IEP Sign in Sheet dated December 2011, one page BB Psycho Educational Evaluation, dated November 2011, 6 pages CC Assessment Planning document, Upload date 6/17/14, 1pp DD IEP, dated 6/5/2012, 11 pages EE , Dated 12/27/11, 4 pages double sided FF Present Levels of Performance, Dated 12/5/11, 2pp
DEPARTMENT OF EDUCATION
1 Request for Re-Evaluation, dated June 17, 2014, two pages 2 Dated 6/17/2014, Assessment Planning, 3pp 3 Omitted 4 10,2014, 1pp