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AMENDED FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: November 19, 2013
Actual Record Closed Date: nuary 18, 2014
Hearing Officer: Gary Peters, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 19,
2013
Attorney — Parents
Dept. Designee — DOE
DOE
Mother — Parents
INTRODUCTION
On the above date, I conducted hearings, pursuant to the Individuals Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with , New York City Impartial Hearing Case # . The hearing was conducted at the impartial hearing office, New York City Department of Education, at 131 Livingston Street, Brooklyn, New York. The student’s parents submitted a request for an impartial hearing on nuary 28, 2013. At the hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its designee, and the parent was represented by their attorney Esq.
BACKGROUND
The student is currently an ) year old male who is classified with a “learning (LD)”. The Committee on Special Education (CSE) met to discuss the educational needs to develop an individual educational program, (IEP) for the child, hereinafter referred to as “ ”.
THE PARENT’S POSITION
The Parent alleges that the annual goals as stated on the child’s IEP were not appropriate and that the “DOE” failed to offer a free and appropriate public education (FAPE) in compliance with the Disabilities Education Improvement Act of 2004, Section 504 of the Rehabilitation Act of 1973, 20 USC 1983 and failed to recommend an appropriate placement.
THE DEPARTMENT’S POSITION
THE DEPARTMENT’S CASE
On behalf of the DOE, Ms. testified after being duly sworn that she is the principal ; she was contacted by the principal of another school, who requested “if I could do them a favor and enroll in our school to accommodate the needs of the family as they worked nearby”.
THE PARENT’S CASE
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The IDEA, as set forth at 20 U.S.C. §§ 1400-1482, ensures that students with disabilities have available to them a FAPE. 20 U.S.C. § 1400(d)(1)(A); Schaffer v. Weast, 126 S.Ct. 528, 531 (2005); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006)). In conformity with a written IEP, a school district must provide special education and related services designed to meet the student’s unique needs. 20 U.S.C. §1401(9)(D); See 20 U.S.C. § 1414(d)). “‘The core of the statute’ is the collaborative process between parents and schools, primarily through the IEP process.” Application of a Child with a , Appeal No. 06-121; See Schaffer, 126 S.Ct. at 532. A school district provides a FAPE 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. Bd. of Educ. v. Rowley, 458 U.S. 176, 206-7 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 (2d Cir. 2003). If a procedural violation has occurred, relief is warranted only if the violation affected the student’s right to a FAPE. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir.)
The IDEA directs that a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i)). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child’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 child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415(f)(3)(E)(ii); see 8 NYCRR 200.5(j)(4)). Also, an impartial hearing officer is not precluded from ordering a local educational agency to comply with IDEA procedural requirements (20 U.S.C. § 1415(f)(3)(E)(iii)). The Second Circuit has determined that “a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is ‘likely to produce progress, not regression’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement,’” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998)), in other words, likely to provide some “meaningful” benefit. Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997)). The IDEA does not require school districts to develop an IEP that maximizes the potential of a student with a . Rowley, 458 U.S. at 197 n.21; 199;see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student’s recommended program must also be provided in the least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114; 8 NYCRR 200.6(a)(1); Application of a Child with a , Appeal No. 06-121).
The DOE has failed to provide with a FAPE as evidenced by his regression, inappropriate goals, removal of services without educational basis or peer reviewed research, and the failure to provide appropriate parent , as well as certain procedural violations, such as not providing progress reports.
Parent’s counsel maintained and I agree that that due to the multiple procedural violations, there was a deprivation of a FAPE. While not every procedural violation is considered “material,” the Supreme Court in Rowley, supra, and Congress have continually emphasized the importance of the procedural provisions found in the IDEA. R.E. and M.E. v. New York City Dep’t of Ed., 694 F.3d 167 (2d Cir. 2012) (citing Rowley, 458 U.S. at 206-7). A procedural violation of FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents’ opportunity to participate in the IEP formulation process, or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP. See Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp.2d 656, 659 (S.D.N.Y. 2005); Arlington Cent. Sch. Dist. v. D.K., No. 02 Civ. 2117, 2002 WL 31521158 at *8 (S.D.N.Y. Nov. 14, 2002). See also 20 U.S.C. § 1415(f)(3)(E); 34 C.F.R. § 300.513. The DOE cannot bear its burden to show that it complied with the procedural elements of the IDEA. As per Parent’s counsel notably absent from the record, for example, are meeting notices, progress reports on goals sent quarterly, or appropriate evaluations, as required by the IDEA.
The student’s IEP represents the “centerpiece” of the IDEA.” Honig v. Doe, 484 U.S. 305, 311 (1988)); and is also the central mechanism by which public schools ensure that their disabled students receive a free appropriate public education.” J.S and A.G., individually and on behalf of J.G v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d (S.D.N.Y. 2011) (hereinafter Scarsdale) (citing Polera v. Board. of Ed. of the Newburgh Enlarged Sch. Dist., 288 F.3d 478, 482 (2d Cir. 2002)). See also 20 U.S.C. §1414 (d)(1)(A)(B)(d)(3)). A school district’s recommended program must be tested to determine whether it is “reasonably calculated to enable the child to receive educational benefits.” Scarsdale (citing T.P., ex. rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247 (2d Cir. 2009)).
For the 2012-2013 school year, the DOE never appropriately implemented IEP. .A FAPE must provide “special education and related services” tailored to meet the unique needs of the particular child, 20 U.S.C. § 1401(a)(18), and be “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at 207. Under the IDEA, a school district is not required to accede to every parental desire and may recommend a placement and note parent disagreement. The Second Circuit has explained that school districts have "broad discretion to adopt programs that, in its educational judgment, are most pedagogically effective.” M.H. v. New York City Dep't of Educ., 685 F.3d at 217, 257 (S.D.N.Y. 2012). In that case, the parents claimed that the District failure to consider parental input and the Court found that the alleged failure to follow a parental desire does not constitute a denial of FAPE. Id.
For the 2011-2012 and 2012-2013 school years, the DOE has proferred little evidence that and that he was not achieving proficiency on state assessments (Exhibits M, W). There are no progress reports addressing related services and the IEP demonstrates minimal progress toward goals (Exhibits 2, 6). ’s progress over a two year period does not satisfy the requirements of the IDEA. The IDEA requires meaningful educational progress. In addition, the law clearly requires written progress reports toward goals. 34 C.F.R. § 300.320(a)(3)(ii)).
An Impartial Hearing Officer has the equitable power to award compensatory education for the gross violation of the IDEA and the failure to provide appropriate tutoring and related services for an extended period of time. New York Education Law § 4404[2]. Within the Second Circuit, compensatory education may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988).
______________________
GARY PETERS, ESQ.
Impartial Hearing Officer GP;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’S EVIDENCE
Exhibit Name of Document Date PAGES A Initial Referral to CSE 9/10/10 4 B Contact page 10/20/10-12/14/10 1 C 10/21/10 1 D 10/25/10 3 E 10/25/10 1 F 11/8/10 2 G 11/16/10 1 H Report card 2009-2012 1 I (undated) 1 J 11/19/10 7 K Notice of IEP meeting 12-7-10 1 L undated 1 M undated 1
N FNR 12/14/10 1
O IEP 12/13/10 13
P IEP 9/23/11 40
Q Correspondence to and to 11/28/12 4 R Correspondence from Parent 11/29/12 1 S Impartial Hearing Request 1/28/13 7 T Correspondence from Parent 2/28/13 1 U Correspondence from Parent 3/1/13 1 V undated [1] W Amended Impartial Hearing
Request 6/6/13 7
DEPARTMENT’S EVIDENCE
2 IEP 2011 9/23/11 16
3 11/19/10 7
4 3/13-4/13 15
5 IEP 2012 10/5/12 14
6 2011-12 8
7 2010-11 7
Footnotes
[1] Request for Impartial Hearing 1/28/13 7