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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: February 26, 2014
Actual Record Closed Date: March 6, 2014
Hearing Officer: Jeffrey Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 26,
2014
ESQ., Attorney — Student
Parents
Teacher, (via telephone) — Student
Teacher, (via telephone) — Student
Teacher, (via telephone) — Student
Headmaster, (via telephone) — Student
DOE Representative — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the advocates for the student and the parents in a due process complaint notice dated December 3, 2013. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to reimburse the parents, and/or directly pay for, costs associated with the student’s unilateral private placement at the , including its Jump Start program, for the 2013/14 school year (Ex. P-A).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
The DOE appointed me to hear this matter on December 4, 2013. See 8 NYCRR § 200.5(j)(3)(i). A hearing in this matter was thereafter held on February 26, 2014. [2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the February 26, 2014 impartial due process hearing, the student was , ; and (math and written language) (Exs. P-A at 2, P-B at 42). For the 2013/14 school year, the student attended the in Manhattan (Exs. P-A at 2, P-B at 42). The Commissioner of Education has not approved the as a nonpublic school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's current eligibility for special education and related services as a student with a disability is in dispute in this hearing (Exs. SD-1, SD-3, P-A at 2). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).[3]
Prior to the current academic year (2013/14), the student attended the in New Jersey. The student was in a mainstream classroom, but because of the small class size and individualized approach to education, he often received assistance in the classroom. The student often received help with organization, extra time with assignments and exams and individualized assistance with academic skills, as needed (Exs. P-B at 3, P-J).
In the summer of 2012, the student was referred by his parents for a full to delineate his cognitive profile. His general cognitive ability, as estimated by the Wechsler Intelligence Scales for Children - Fourth Edition, was measured to be in the range (FSIQ = ). The student’s general verbal comprehension abilities were in the Average range (VCI = ), and general perceptual reasoning abilities were also in the Average range (PRI = ). The student general working memory abilities were in the Borderline range (WMI = ), and general processing speed abilities were in the Low Average range (PSI = ). The student’s abilities to sustain attention, concentrate, and exert mental control were a weakness relative and abilities. The student’s ability to process visual material quickly was also a weakness reasoning abilities (Exs. SD-1 at 1, P-B at 4-7, 39).
Academically, the student demonstrated relative weak skills in math reasoning, spelling and sentence combining on the Wechsler Individual Achievement Test - Third Edition. The findings of the academic testing were consistent with a specific learning disability in math problem solving. The student also demonstrated difficulties in spelling and written language that were partly attributable to problems in processing speed and attention to detail. The examiner stated that the student required special education services in math as well as interventions in written language. The student was also said to require accommodations for difficulties in working memory, such as extra time on timed assignments and tests to organize and plan his work before completing tasks (Exs. SD-1 at 1, P-B at 7-12, 39-40).
On February 25, 2013, the parents signed an enrollment contract with for the 2013/14 school year (Ex. P-H). In letters dated March 14, 2013 and July 22, 2013, the student’s father wrote to the CSE and stated that a meeting had not yet been scheduled to develop an IEP for his son. Absent the development of an appropriate public program, the student’s father articulated an intent to unilaterally place his son at School at public expense for the 2013/14 school year (Exs. P-A at 2, P-D, P-E).
While on August 2, 2013, the parents provided the CSE with their informed written consent to evaluate the student, no evaluations were ever conducted (Exs. P-A at 2, P-C). In a letter dated August 16, 2013, the student’s father wrote to the CSE to state that he intended to unilaterally place the student at the at public expense for the 2013/14 school year given the absence of any recommended public program (Ex. P-F).
At a meeting held on September 16, 2013, the CSE convened and determined that the student was not eligible for special education services because he did not have an educational disability as defined in Part 200 of the Regulations of the Commissioner of Education (Exs. SD-1, SD-2, SD-3). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The parents’ claim for tuition reimbursement and/or direct payment for the student’s unilateral placement at the for the 2013/14 school year should be denied. The DOE conceded that it failed to offer the student a free appropriate public education in the least restrictive environment for the current academic year. School, however, was an inappropriate program for the student. The relevant equities also mitigate against a reimbursement/direct payment award (R. 14).
B. The Parents
The DOE should be ordered to reimburse the parents and/or directly pay for the student’s unilateral placement at the , including its , for the 2013/14 school year. The CSE erred in failing to classify the student and erred in failing to develop and appropriate educational program for him. appropriately addressed the student’s unique educational needs. The relevant equities also support an award of tuition reimbursement and/or direct public funding of the student’s tuition to the (R. 14-16; Ex. P-A).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General Legal Standards
Two purposes of the IDEA are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“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.[4] See 20 U.S.C. § 1400(d)(1)(a)-(b); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. 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. See Rowley, 458 U.S. at 206-07; 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 and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is 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. See 20 U.S.C. § 1415(f)(3)(e)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).
The 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. See 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.” See 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 v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); 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). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See 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; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). 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), quoting Rowley, 458 U.S. at 192.
The student’s recommended program must also be provided in the least restrictive environment (the “LRE”). See 20 U.S.C. § 1412(a)(5)(a); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); 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. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
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. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).
The burden of proof is 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. See N.Y. Educ. Law § 4404(1)(c).
B. Proposed Public Program
At the hearing, the DOE conceded the first criterion of the Burlington/Carter analysis, thereby acknowledging that it failed to offer the student a FAPE for the 2013/14 school year
(R. 14). Accordingly, I find in the parents’ favor on this issue.
C. Appropriateness of Program
Given my finding that the DOE failed to provide the student with a FAPE during the 2013/14 school year, I turn to the appropriateness of the parents’ private program. With respect to the second criterion for an award of reimbursement, the parents must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65. When determining whether the parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the evidence entered into the hearing record, including the credible testimony of Mr. , Ms. , Mr. , Mr. , and the student’s father, I find that the , including its , was an appropriate program for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs (R. 75-77, 79, 47-48, 52-54, 91, 93-97; Ex. P-G).
Mr. described as an accredited independent school for students in grades 6-12
(R. 103-104, 107). The school has approximately 352 enrolled students this academic year who are functionally grouped by age, grade, and ability among three (3) tracks in classes of approximately fifteen (15) students (R. 107). The developed its Jump Start program to address the needs of enrolled students with diagnosed learning disabilities (R. 82, 106-110). The school also uses Ed-Line, an online system for teachers to post grades, homework and progress reports, to address the organizational needs of its students (R. 112-113).
Ms. testified under oath that she is the this academic year (2013/14) (R. 72). program consists of a thirty (30) minute morning check-in period, five (5) days per week; a forty-five (45) minute supervised study hall in the afternoon, four (4) days per week; and two (2) individual instructional periods per week (R. 73, 82). To address the student’s organizational deficits, Ms. uses verbal checks to help the student become more independent (R. 73-75). To assist the student in writing, Ms. reviews his written work and has the student read his written work out loud (R. 76). To address the student’s attention and processing needs, Ms. re-teaches the student concepts introduced in content area classes (R. 78-81). Ms. credibly testified that the student has made progress in deficit areas as a result of her instruction (R. 75-77, 79).
Mr. testified at the hearing that the student participates in his eighth grade algebra class this academic year in a class of thirteen (13) students (R. 45). The student is in the lowest track for math, which Mr. stated is reserved for students with diagnosed
(R. 45). To address the , Mr. employs a strict system of accountability and management and graphic organizers to reduce disorganization (R. 45-49). Mr. credibly testified that the student has benefitted from his instruction (R. 47-48, 52-54).
Lastly, Mr. testified under oath at the hearing that he provides instruction to the student in history this academic year in a class of fourteen (14) students (R. 87-89). To address the student’s attention needs, Mr. provides students with a lesson roadmap at the beginning of each class and uses refocusing and redirection (R. 90-91). To assist the student with reading comprehension, Mr. uses a note-taking system which focuses on the five (5) W’s (R. 91-92). To help the student learn paragraph structure, topic sentences and thesis statements, Mr. uses graphic organizers, note cards and direct instruction (R. 93-94). When the student is presented with multi-step directions, Mr. checks to make sure the student understands those directions and will break the steps down, if necessary
(R. 95-96). Mr. credibly testified that the student has benefitted from his instruction (R. 91, 93-96).
D. Relevant Equities
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).
The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 U.S. App. LEXIS 20967 (2d Cir. Aug. 9, 2006). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
In letters dated March 14, 2013, July 22, 2013, and August 16, 2013, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at the York Preparatory School at public expense for the 2013/14 school years (Exs. P-D, P-E, P-F). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is also no evidence indicating that the parents were uncooperative with the CSE, see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the cost of the student’s tuition to the York Preparatory School was unreasonable (Ex. P-H), see Carter, 510 U.S. at 16.
E. Reimbursement for Cost of Evaluation
In their December 3, 2013 due process complaint, the parents seek reimbursement of the “cost of evaluation” (Ex. P-A at 3). Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district. See 34 C.F.R. 300.502(a), (b); 8 NYCRR § 200.5(g)(1). Federal regulations define an IEE as “an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question.” See 34 C.F.R. § 300.502(a)(3)(i); see also 8 NYCRR § 200.1(z). A parent, however, is only entitled to one IEE at public expense “each time the public agency conducts an evaluation with which the parent disagrees.” See 34 C.F.R. § 300.502(b)(5); 8 NYCRR § 200.5(g)(1). If the parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. See 34 C.F.R. §§ 300.502(b)(2)(i)-(ii); R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d 222, 234-235 (D. Conn. 2005); A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 549 (D. Conn. 2002). If a school district’s evaluation is appropriate, a parent may not obtain an IEE at public expense. See 34 C.F.R. § 300.502(b)(3); 8 NYCRR § 200.5(g)(1)(v).
The only evaluation entered into the hearing record was a private neuropsychological evaluation of the student conducted during the summer of 2012, prior to his relocation to New York City (Ex. P-B). As the DOE did not conduct a neuropsychological evaluation of the student with which the parents disagree, the parents are unable to obtain an evaluation at public expense on that basis. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 13-216 at 8 (SRO Jan. 17, 2014).
F. Reimbursement, or Compensatory Education, for Related Service
As no evidence was provided by the parents of having secured private related services for the student during the 2013/14 school year (other than those included in the cost of tuition to ), or that the student was denied related services by the DOE prior to the 2013/14 school year, the parents’ claim for reimbursement for related services, see, e.g., Application of a Child with a Disability (New York City Dep’t of Educ.), Appeal No. 02-007 (SRO December 24, 2002), and/or compensatory additional services, see, e.g., Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep’t 2005), is denied (Ex. P-A at 4).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
The parents’ claim for tuition reimbursement and/or direct payment of the student’s tuition to the , including its , for the 2013/14 school year is GRANTED; and within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parents for all costs, including tuition, associated with the student’s unilateral private placement at the 2013/14 school year, and shall directly pay the private school for any outstanding costs associated with said placement;
The parents’ claim for reimbursement of the cost of a private evaluation is DENIED; and
The parents’ claims for compensatory education/additional services is DENIED. Dated: March 21, 2014
Jeffrey Schiro mv
JEFFREY SCHIRO, ESQ.
Impartial Hearing Officer JS;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 ON FEBRUARY 26, 2014
PARENT
A. Due Process Complaint Notice/Impartial Hearing Request, 12/3/13, 4 pgs.
B. Evaluation, 6/2012, 50 pgs.
C. Consent for Evaluation, 8/2/13, 1 pg.
D. Letter to CSE from parent, 3/14/13, 2 pgs.
E. Letter to CSE from parent, 7/22/13, 2 pgs.
F. Letter to CSE from parent, 8/16/13, 2 pgs.
G. Academic Report, 1/7/14, 1 pg.
H. School Contract and Bill, 2/25/13, 5 pgs.
I. Poof-of-Payment, 2/25/13,[1] pg.
J. Letter to w/ list of accommodations, 4/29/13, 2 pgs.
DEPARTMENT OF EDUCATION
2. Attendance Sheet, 9/16/13, 1 pg.
3. Letter to parent from DOE, 9/16/13, 1 pg.
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 2/26/14, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter once in order to allow the parties adequate time to present their available witnesses on the extensive issues raised in the parents’ due process complaint. In considering that request, I weighed the cumulative impact of the relevant factors and found that the stated reason for the extension justified the delay in the resolution of the matter and that the reason for the requested extension was in accordance with the requirements of due process. Accordingly, the request for an extension of the case compliance date was granted (Ex. IHO-I). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[3] Student with a disability means a student with a disability as defined in section 4401(1) of the Education Law, who has not attained the age of 21 prior to September 1st and who is entitled to attend public schools pursuant to section 3202 of the Education Law and who, because of mental, physical or emotional reasons, has been identified as having a disability and who requires special services and programs approved by the department. 8 NYCRR § 200.1(zz).
[4] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[1] Ineligibility Finding for Special Education Services, 9/16/13, 3 pgs.