NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: June 25, 2014
July 25, 2014
Actual Record Closed Date: September 19, 2014
Hearing Officer: Case No. 149045
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 25, 2014
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 15, 2014
This matter came before me on June 25, 2014 and July 15, 2014, pursuant to the Individuals with Disabilities Education Act (IDEA). The timelines were extended each hearing day, to accommodate witnesses’ testimony and closing briefs. Appended to the record are lists of persons in attendance and documents submitted into the record.
BACKGROUND
The student hereinafter shall be referred to Committee on Special Education (CSE) convened a turning five review meeting on April 12, 2013, to develop an Individualized Education Program (IEP) for parents filed their Due Process Complaint (DPC) on December 4, 2013.
The parent alleged that the Department of Education (DOE) failed to offer her a “free appropriate public education” (FAPE) on procedural as well as substantive grounds. The parent is seeking an order requiring the district to fund her child’s tuition at the School, for the 2013-2014 school year. The DOE contends that a FAPE was offered.
THE DEPARTMENT OF EDUCATION’S CASE
The district’s only witness 12, 2013. The documents reviewed at the meeting were Dr. she was not such as be required.(at 27) (Ex. 11)
He reviewed each goal in detail and the . He explained that the first goal was to improve stories. up at the meeting. (T. 27-30 and 31-34) (Exs. 11 and 13)
He stated that an . (T.34-37) (Ex. 11)
On cross examination students. (T.44-46)
He agreed with him. .(T.51-52 and Ex. 7)
He could . (T. at 61 and at 64)
The . (T.65-66 and 67-68)
THE PARENTS’ CASE
The parents’ first and . (T. at 77 and 81-83)
Ms. of three teachers art and music. (T. 83-86 and 87-89)
She support from . (T. 90-93 and at 94)
She testified (T. 95-97) Case No. 149045
On cross examination, she stated that the head teacher held more than one state certification. She . (100-101)
The regularly sat (T.103-106 and at 107)
The mother , she noted
The CSE staff felt that . (T.112-115 and 116-117) (Ex. B)
She confirmed on . (T. at 126)
FINDINGS OF FACT AND DECISION
The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482)2 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [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).3 An IEP is a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]).
A FAPE is offered to a student when the board of education (a) complied 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. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must 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]). School districts are of course Case No. 149045 also required to comply with all IDEA procedures, but not all procedural errors render an IEP legally inadequate (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 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 to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]).
The Second Circuit has determined that "a school district fulfills it substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra, 427 F.3d at 195, quoting 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, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379 ; Walczak, 142 F.3d at 132).
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 parent were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra, 427 F.3d at 192). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 37071). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (id. at pp. 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). The IDEA allows that "a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency Case No. 149045 had not made a [FAPE] available to the child in a timely manner prior to that enrollment"(20 U.S.C. § 1412 [a][10][C][ii])(emphasis added).
I have reviewed all the testimonial and documentary evidence. The parents have alleged that the DOE has failed to provide their daughter with a FAPE on procedural and substantive grounds. Their primary arguments are that the IEP team was not duly composed, the CSE DOE has failed to would have been appropriate for the child.
Under the IDEA, the CSE must include “not less than one regular education teacher of such child if the child is, or may be, participating in the regular education environment,” and “not less than one special education teacher of the student.” (8 NYCRR 200.3(a)(1)(ii),(iii)). Those teachers should be ones “who [are] or may be responsible for implementing a portion of the IEP.” (34 C.F.R. Part 300, App'x A, Question 26. See SRO No. 13-165 at 8-9.) Here, it is undisputed that Ms. was . (T. at 43)
The failure to have the parent’s right to fully participate and impeded the child’s right to a FAPE constituted a denial of FAPE.
Next, the parents .324; 8 NYCRR § 200.4(f)(1). The CSE must “use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information about the child, including information provided by the parent,” and should not rely upon
ORDER
The Department of Education shall fully reimburse the parent, for the student’s tuition at the School, for the 2013-2014 school year, upon reasonable proof of payment. Dated: October 1, 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 Parent letter to the CSE with fax confirmation, dated 8/20/13 (3 pages) B Parent letter to the CSE with fax confirmation, dated 10/1/13 (3 pages) C Enrollment Contract for 2013/2014 school year (2 pages) D Affidavit of Payment, dated 3/12/14 (1 page) E Proof of payment, various dates (7 pages) F Attendance Record for the 2013/2014 school year (2 pages) G , dated 2/12/13 (6 pages) H Department of Education Classroom Observation, dated 3/6/13 (13 pages) I Letter from the , dated 3/15/13 (1 page) J Progress Report, dated 6/2014 (2 pages) L Class Schedule 2013-2014, 1 page
DEPARTMENT OF EDUCATION
1 Complaint, dated 11/21/13 (3 pages) 2 Due Process Response, dated 12/13/13 (4 pages) 3 Association, dated 10/28/10 (5 pages) 4 IEP, dated 3/22/12 (13 pages) 5 Consent for Additional Assessments, dated 1/26/13 (1 page) 6 Social History Update, dated 2/11/13 (2 pages) 7 IEP, dated 3/4/13 (11 pages) 8 , dated 3/30/13 (12 pages) 9 Notice of IEP Meeting, dated 4/5/13 (4 pages) 10 Child Outcome Summary Form, dated 4/12/13 (1 page) 11 IEP, dated 4/12/13 (10 pages) 12 Attendance Page, dated 4/12/13 (1 page) 13 Classroom Observation, dated 3/6/13 (7 pages)