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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 20, 2015
Actual Record Closed Date: March 9, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 20, 2015
Advocate — Student
Parent/Mother — Student
Parent/Father — Student
District Representative, Committee on Special Education — DOE
INTRODUCTION
On 01/07/2015, 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) and Article 89 of the Education Law of the State of New
York.
On 02/20/2015, a hearing was conducted. Appended to the record are lists of persons in attendance and the documents received in evidence.
BACKGROUND
This matter was instituted by the impartial hearing request dated 12/12/2014. (Ex C)
Parent alleges the DOE failed to offer the student a Free and Appropriate Public
Education (FAPE)
Parent contends the student requires
( )/ ( ) services to address . (Ex C 5)
Specifically parent seeks weekly hours of such service. (Ex C 6)
Student’s most recent IEP, of 11/19/2014, includes a classification of (Ex
2-1), placement in a (Ex 2-8), (Ex 2-8), parent counseling and training for monthly (Ex 2-9), and as an service times weekly (Ex 2-9).
IEP identifies the need for a . (Ex 2-5)
( ) appears as DOE Exhibit 19. contains relevant information regarding student and , but fails to identify the responsible party for implementing the . (Ex 19-3)
IEP includes the student “
” and such as and (Ex 2-1), (Ex 2-1), (Ex 2-1) and parent reports
. (Ex 2-2)
Student is currently parentally placed at . (Ex 14 & 15)
IEP also includes needs of ,
, , and a
. (Ex 2-4)
Though IEP does not include a specific recommendation for , or a , the IEP does include goals
PARENT POSITION
( ) presented the parent’s position at hearing. Due to student’s parent contends “ is needed to address these so he may be as
” (T 17)
Though the program at does not provide there is enough to monitor the student in the classroom. (T 28)
PARENT WITNESS
( ), student’s mother provided testimony at hearing.
Student attends due to his , in a program. (T 20) is a (T 41) program. (T 38)
Student are described as: “
” (T 21)
Student and at school. (T 21-22)
continues to agree with the placement. (T 22)
Student needs . (T 32)
had discussed services but was told it was not possible, then saw other students that had the service. (T 23)
contends her child’s teacher and both support for the student. (T 24)
Student (T 24),
(T 25) (T 26)
(T 26)
believes that additional services ( ) will help the student retain a skill.
(T 30)
“
.” (T 30)
Teachers told the student needs support. (T 32)
. (T 36)
is not aware of whether or not the student receives a .
(T 38)
believes the is not supposed to be on the IEP due to at . (T 39)
does receive parent training and counseling. (T 39-40)
“…before he started going to , he had hours of at , which helped him a lot. But once he started going to , and I said can I still have my , because it was helping him so much , they said no, because he is going into – because he is in a program. So, that is how I came up with hours, thinking that he had hours and if he has it now, it would benefit him too.” (T 41)
DEPARTMENT OF EDUCATION POSITION
( ) appeared at hearing of 02/20/2015 for the DOE.
DOE provided witness affidavit of ( ) (Ex 23) who had attended the student’s most recent IEP meeting. (Ex 2-15)
Affidavit included ’s relative professional degrees and experience, confirmed her familiarity with the student, reflects parent agreement with student placement (Ex 23-1) additional testing was requested and performed upon the student (Ex 23-1)
meetings were held to facilitate student placement at , including removal of some related services that were noted as “provided programmatically”, and mom had no other questions or concerns. (Ex 23-2)
DOE did not present any evidence as to the appropriateness of the IEP in question nor in response to the parent’s allegations that additional services were required for the student, except for a general objection. (T 13-14)
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 student is offered a FAPE 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; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
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 enabling him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][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).
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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington
v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). The burden of proof is on the school district during an impartial hearing. (Educ. Law § 4404[1][c]).
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 (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).
DOE OFFER OF FAPE AND THE 11/19/2014 IEP
I find that the IEP, dated 11/19/2014 (Ex 2), fails to offer the student a FAPE and therefore was not designed to meet their unique needs of the student and prepare this for further education, employment, and independent living.
DOE Affidavit included that the IEP was, in part, developed to facilitate student placement at , and therefore removed of some related services that were noted as “provided programmatically”, and mom had no other questions or concerns. (Ex 23-2)
DOE did not present any evidence as to the appropriateness of the IEP in question nor in response to the parent’s allegations that additional services were required for the student, except for a general objection. (T 13-14)
IEP does set forth clear student needs which include needs of
, , , and a
. (Ex 2-4) DOE improperly does not provide the services, only notes their need. Therefore the services of and a are not necessarily to be provided to student.
Parent testified regarding some of the IEP services. This included her not being aware of whether or not the student receives a (T 38) and her belief that the is not supposed to be on the IEP due to at . (T 39)
Ultimately the IEP is incomplete in failing to provide services noted as required for the student. Reliance on the program placement to provide such services is not proper and should be clarified somewhere on the IEP itself.
SERVICES
Parent seeks services. Several courts have held that the IDEA does not require school districts as a matter of course to design educational programs to address a student's difficulties in (see Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 [1st Cir. 2001]; Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293
[11th Cir. 2001]; JSK v. Hendry County Sch Bd., 941 F.2d 1563, 1573 [11th Cir 1991]; see also Application of the Dep't. of Educ., Appeal No. 11-031).
Parent hearing request includes that the school and parent “feel “the student “needs ( ) to address his ”. (Ex C 5) Parent seeks hours weekly of services at . (Ex C 6)
No indication is made that the parent raised this concern at the IEP meeting of
11/19/2014. (Ex 2)
IEP does include a level of student . Student is noted (Ex 2-1)
Teacher reports of 06/06/2014 are included that state the student is able to follow
. (Ex 2-2)
Parent concerns include that student
. Parent expressed that the student has made progress but continues to . Parent indicates the current educational placement is appropriate. (Ex 2-2)
Student attends due to his need for , in a program. (T 20) is a (T 41) program. (T 38)
Parent confirmed she continues to agree with the placement. (T 22)
Parent testified that student need is such that he requires
. (T 32)
When the student was of the parent had discussed services but was told it was not possible, then saw other students that had the service. (T 23)
contends her child’s teacher and both support for the student. (T 24)
Parent states that the student (T 24),
(T 25) (T 26)
(T 26) This testimony conflicts with the IEP information from the teacher which that includes reports of 06/06/2014 are included that state the student is able to . (Ex 2-2) If there is indeed an issue where the student does and this issue should be addressed at an IEP meeting considering alternate placement, not by addressing the issue with additional services to make up for an parent perceived issue with the classroom placement.
believes that additional services ( ) will help the student retain a skill. (T 30)
Parent relies upon student receipt of in school. This argument does not make sense if the student receives in school and yet does not have any new skills.
“
…” (T 30)
Student had received, prior to attendance at , hours of at , which parent believes “helped him a lot.” (T 41)
Parent believes since it helped the student in the past it will help him at the present time. “So, that is how I came up with , thinking that he had and if he has it now, it would benefit him too.” (T 41)
The hearing record establishes, from parent testimony that the student is in an program while in school. The hearing record offers no information from the school as to whether or not the student requires any additional services or to what degree those services should be delivered.
Parent and IEP detail student
There is no indication in the hearing record that the student required programming in order to make progress during the in-school portion of the school day. are reflected in the IEP as to have alleviated to some degree in the reduction in the . (Ex 2-2)
Despite the failure of the DOE to offer a FAPE in the most recent IEP (Ex 2), the parent has not established the appropriateness of services, in any degree, to be necessary for the student.
Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors…With respect to equitable considerations, the IDEA provides relief 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 (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v.
V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir.
Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch.
Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).
In this case there is no evidence offered that any party raised the issue of services, or additional services to any degree, at any IEP meeting. Nor was there any objection to the IEP made at the time of the most recent meeting.
While evidence indicates that the primary concern of the parties at the most recent IEP meeting of 11/19/2014, appeared to be placement of the student at , this did not prevent the parent from raising her concerns for additional services. Opportunity to raise this issue was not taken at any IEP Meeting weighing against the parent relative to the equities of this case.
ORDER
1. The DOE IEP of 11/19/2014 failed to offer the student a FAPE.
2. The parent is denied the sought after relief.
3. The remainder of the complaint is dismissed.
4. This decision is subject to appeal and review by the State Review Officer. Dated: March 23, 2015
, 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 02/20/2015
A Duplicate
B Duplicate
C Due Process Complaint, 8 pages
D Excluded
E Excluded
DEPARTMENT OF EDUCATION
ENTERED 02/20/2015
1 Dated 10/21/2014 IEP, 15 pages
2 Dated 11/19/2014, IEP, 15 pages
3 Dated 10/21/14, Notice of IEP Meeting, 3 pages
4 Dated 11/19/2014, Notice of IEP Meeting, 3 pages
5 Dated 10/21/14, CSE Minutes, 1 page
6 Dated 11/19/2014, CSE Minutes, 1 page
7 Dated 8/13/14, P-1 Letter, 4 pages
8 Dated 8/13/14, P-2 Letter, 3 pages
9 Dated 11/13/14, Psycho Educational Evaluation, 4 pages
10 Dated 8/5/14, Evaluation, 1 pages
11 Dated 8/6/14, Evaluation, 8 pages
12 Dated 8/5/14, Evaluation, 5 pages
13 Dated 8/13/14, , , Description, 1 page
14 Dated 6/20/14, Ten Day Notice Letter, 1 page
15 Dated 11/19/14, Acceptance Letter, 1 page
16 Dated 11/19/14, Memo Notice of Secured Placement Approval
Notification, 1 page 17 Dated 10/10/14, Prior Written Notice, Notice of Recommendation, 4 pages
18 Undated, , 4 pages
19 Dated 6/6/14, , 5 pages
20 Dated 10/21/14 Deferral to Central Based Support Team, 4 pages
21 Dated 10/10/14 Prior Written Notice, Notice of Recommendation, 4 pages
22 Dated 9/26/14 School Placement Request – Request to ,4
pages
23 Dated 2/13/15, Affidavit from Ms. , 2 pages
HEARING OFFICER
ENTERED 02/20/2015
I Notice of Appointment, dated January 7, 2015, 3 pages
II Email chain dated January 7, 2015, 2 pages, Notice of Insufficiency Challenge, and Finding that the Due Process Request was sufficient