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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 13, 2015
February 27, 2015
March 3, 2015
March 13, 2015
March 31, 2015
April 1, 2015
April 22, 2015
May 1, 2015
May 6, 2015
May 15, 2015
May 21, 2015
May 28, 2015
June 9, 2015
Actual Record Closed Date: June 22, 2015
Hearing Officer: Esther Mora, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 13, 2015
Mother — Student
Attorney — Student
Attorney — Student
Director (Via Telephone) — Student
Impartial hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 27, 2015
Attorney for Parent — Student
Attorney for Parent — Student
Mother — Student
NYC DOE Teacher, (Via Telephone) — Student
Impartial Hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 3, 2015
Attorney (Via Telephone) — Student
Impartial Hearing Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 13, 2015
Attorney — Student
Attorney — Student
Parents
NYC DOE Teacher (Via Telephone) — Student
Impartial Hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 31, 2015
Attorney (Via Telephone) — Student
Attorney (Via Telephone) — Student
Impartial Hearing Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL1, 2015
Attorney — Student
Impartial Hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL22, 2015
Attorney — Student
Impartial Hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 1, 2015
Attorney — Student
Attorney — Student
Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 6, 2015
Attorney — Student
Attorney — Student
Parents
DR., (Via Telephone) — Student
DR., (Via Telephone) — Student
Impartial hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 15, 2015
Attorney (Via Telephone) — Student
Impartial Hearing Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 21, 2015
Attorney (Via Telephone) — Student
Impartial Hearing Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 28, 2015
Attorney (Via Telephone) — Student
Impartial Hearing Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 9, 2015
Attorney — Student
Parents
Impartial Hearing Representative — DOE
The school district did not contest the parent’s claim that it failed to provide a free and appropriate public education (FAPE) during the 2012-2013, 2013-2014, and 2014- 2015 school years. Therefore, it did not present witnesses or documentary evidence.
Instead, the school district asks that it be allowed to reconvene an Individualized Education Program (IEP) team to review the results of all new evaluations and current IEP in order to determine the proper recommendations so that the student can make progress in his least restrictive environment. Additionally, if compensatory services are awarded, the school district asserts that the student would be more appropriately served through special education services in the form of an independent
(“ ”) provider than the provider requested by the parent.
(Hearing Record, Exhibit 1)
PARENT
The parent contends that the school district failed to provide a FAPE during the
2012-13, 2013-14 and 2014-15 school years. Parent witnesses included the Director of the (Tr. At 34-115), the student’s classroom and teacher (Tr. At 126-147), the student’s teacher during the 2012-13 and 2013-14 school years (Tr. At 177-196), a who evaluated the student (Tr. At 315-362) and a who evaluated the student (Tr. At 367-
421) and the parent. Documentary evidence, as described in the hearing record and on the list attached to this decision, was also admitted. (Exhs. A-CC)
FINDINGS
I find that the school district failed to offer a FAPE. I also find that the record supports the relief sought by the parent.
As was recently restated in Appeal No. 15-033, Two purposes of the Individualized Education Program (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 Sch.
Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. 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 (Rowley, 458 U.S. at 206-07; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2dCir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.
2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119,129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir.
2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at 10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if procedural violations are 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 394 Fed. App'x 718, 720, 2010 WL 3242234 [2d Cir. Aug. 16, 2010]; E.H. v.
Bd. of Educ., 2008 WL 3930028, at 7 [N.D.N.Y. Aug. 21, 2008], aff'd, 361 Fed. App'x 156, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 293 Fed. App'x 20, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
The IDEA directs that, in general, an IHO'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). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; 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] [citations omitted]; see Grim, 346 F.3d at 379).
Additionally, school districts are not required to "maximize" the potential of students with disabilities (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 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at 15). 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]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE)
(20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see 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; G.B. v. Tuxedo
Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 486 Fed.
App'x 954, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F.
Supp. 2d 422, 428 [W.D.N.Y. 2008]).
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. New York City Bd. 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 and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [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).
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 (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).
FAPE: 2012-13, 2013-14, 2014-15 school years
As is stated above, the school district bears the burden of proof to establish that it offered the student a FAPE for the 2012-13, 2013-14, and 2014-15 school years. (Appeal No. 15-033) In this case the school district conceded that it failed to offer the student a FAPE for those school years (Tr. At 116-117) and did not offer or submit any testimonial or documentary evidence into the hearing record at the impartial hearing except the closing brief. (Exh. 1) Therefore, I find that the school district failed to demonstrate that it offered the student a FAPE for the 2012-13, 2013-14, and 2014-15 school years.
Additional Services
The hearing record supports the parent’s request for compensatory services in the form of additional services for and and services.
As was restated in Appeal No. 15-033, compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v.
Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).
Compensatory education may be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the IDEA (see 20 U.S.C. §§ 1401[3],1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b];6 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100). Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation 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 (see 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]; Cosgrove v. Bd. of Educ., 175 F.
Supp. 2d 375, 387 [N.D.N.Y. 2001]; Application of a Child with a Disability, Appeal No.
03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]).
Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see Newington, 546 F.3d at 123 [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; Student X. v. New York City Dep't of Educ., 2008 WL 4890440, at 23 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; see generally R.C. v. Bd. of Educ., 2008 LEXIS 113149, at 38-40 [S.D.N.Y. March 6, 2008]). Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of a Student with a Disability, Appeal No. 09-111 [adding summer reading instruction to an additional services award]; Application of the Bd. of Educ., Appeal No. 09-054 [awarding additional instructional services to remedy a deprivation of instruction]; Application of a Student with a Disability, Appeal No. 09-044 [awarding "make-up" counseling services to remedy the deprivation of such services]; Application of a Student with a Disability, Appeal No.
09-035 [awarding 1:1 reading instruction as compensation for a deprivation of a FAPE]; Application of a Student with a Disability, Appeal No. 08-072 [awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE]; Application of the Bd. of Educ., Appeal No. 08-060 [upholding additional services awards of physical therapy and speech-language therapy]; Application of a Student with a Disability, Appeal No. 08-035 [awarding ten months of home instruction services as compensatory services]; Application of the Bd. of Educ., Appeal No. 06-074; Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04-054).
The purpose of an award of compensatory educational services or additional services is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New
York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]; Application of the ,Dep't of Educ., Appeal No. 11-
075; Application of a Student with a Disability, Appeal No. 10-052). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; S.A. v. New York City Dep't of Educ., 2014 WL 1311761, at 7 [E.D.N.Y. Mar. 30, 2014] [noting that compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE"] [internal quotations and citation omitted]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007]
[holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Puyallup, 31 F.3d at 1497 [finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]; Application of a Student with a Disability, Appeal No. 13-168; Application of the Dep't of Educ., Appeal No.12-135; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).
The parent requests compensatory relief in the form of hours of at the ( ). I find that the parent is entitled to this relief. The record demonstrates that the student did not receive a FAPE over the last school years and is performing . Diagnostic testing was conducted at . The Director of testified credibly that based on testing results and her experience with other students, hours of is needed to complete the instruction he requires to attain grade level mastery. (Tr. 71, Ex. J-4). The school district’s request that it be allowed to provide independent services instead of is denied. The school district did not demonstrate in the record that it ready and able to provide comparable instruction through . Instead, the record establishes that can provide appropriate services after school during the school year, including and during the summer, so as to not interfere with the instruction the student requires during the school day. (Tr. At 71-72)
The record establishes that will be specifically designed to meet the student’s needs. He will receive instruction in , , and to help him attain grade level in those areas. (Tr. 61-63; 64-68.) Instruction will be provided by trained and qualified special education instructors. (Tr. 62-63). will also provide instruction consistent with the recommendations contained in the current evaluation of the student. (Tr. 61-62; Ex. X.)
The hearing record also establishes that the student has average cognitive abilities and, with proper instruction, has the ability to perform on grade level and is therefore likely to benefit from the offered at . (Tr. 326, 344).
I also find that hours are reasonable and necessary to allow the student to derive meaningful educational benefits from at and to compensate him for the lack of appropriate services in the past and to place him where he would have been if he had received a FAPE for the past years.
Compensatory and
The Parent also seeks compensatory and . These services were addressed in my Interim Order dated June 16, 2015. To summarize, the hearing record establishes that the student has severe and difficulties. The independent and processing evaluation conducted during the course of the hearing revealed that the student requires and services, , and in a group of . During the hearing I issued Interim Orders pertaining to and . The first
Interim Order granted and services during the school year, based on the results of the independent evaluation. Upon completion of the hearing, I reviewed the record more to determine whether the student is eligible for compensatory independent and . I found that he was eligible for a total of hours (the equivalent of minute sessions) of or and from an independent provider, at school district expense due to the lack of a FAPE and the failure to provide and for the last years.
Independent services are required to ensure that the student can receive the services during the summer and afterschool so as to not interfere with his regular school day.
Remand to CSE
The school district conceded it failed provide the student a FAPE for the 2012-13, 2013-14 and 2014-15 school years. (Tr. 116-117). The record also establishes that the school district procedurally and substantively denied the student a FAPE which significantly impeded the student’s right to FAPE. The school district also failed to conduct timely reevaluations and failed to evaluate the student in all areas of suspected disability. Therefore, the record establishes that this (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 and (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Appeal No. 12-06. Additionally, The school district denied the student a FAPE when it failed to develop and implement appropriate IEPs for years. Consequently, the student failed to make more than “ ” during the 2012-13, 2013-14 and 2014-15 school years.
Having found that the school district failed to provide the student a FAPE, I must determine the appropriate relief. I find that the relief requested by the parent will ensure that the student is appropriately educated within the meaning of the IDEA. P. ex rel. Mr.
and Mrs. P. v. Newington Bd. of Ed., 546 F. 3d at 123 (quoting Parents of Student W. v.
Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994).
ORDER
1) This matter is remanded to the school district.
2) Within five calendar days of the date of this Order the school district is to authorize the parent to obtain hours of compensatory at the , with all costs paid for by the school district including tuition, diagnostic assessment and a for and from .
3) The school district is to comply with the procedures for identifying a student with a learning disability pursuant to NYCRR 200.4 (j), including, but not limited to, consideration of independent evaluations that have identified the student with a learning disability and a classroom observation.
4) Within 15 calendar days of the date of this Order, the school district is to convene a validly constituted IEP meeting, with proper notice to the parent, to develop an appropriate IEP for the student. The IEP team should:
a. Consider the independent evaluations (Exhs. V, W, X, and BB) and the that was ordered in Exhibit Y.
b. Develop an accurate and comprehensive statement of the student’s current levels of performance, a description of the impact of his disabilities and emotional deficits on his learning and the implications of those disabilities on the delivery of instructional and support services based on the results of the independent evaluations.
c. Develop appropriate, teaching methodologies, placement and goals that reflect the student’s current levels of academic performance and his emotional needs. The IEP should be reasonably calculated to allow him to make meaningful and measurable annual progress in his , , and emotional regulation skills.
d. Continue to provide services as recommended by Dr.
and Dr. in Exhibits BB and X, and include the services on the
IEP.
e. Recommend for the student per Exhibit V.
f. Recommend and times per week ( ,
).
g. Recommend services for the student.
h. Recommend placement in a small, appropriate special education classroom.
5) Within 14 calendar days of the date of the new IEP meeting, the school district is to place the student in a small, appropriate, special education classroom that is designed to meet the educational needs of students with similar learning challenges (using a research based teaching method such as or ). If the school district fails to place the student within 14 calendar days in an appropriate program, the school district is to defer the case to the Central Based Support Team (“ ”) for placement in an appropriate non-public school that specializes in teaching children with significant based learning disabilities using methodology.
6) If the CBST fails to place the student within four weeks (28 calendar days) of the deferral, the parent may unilaterally place the student in a non-approved private school that specializes in teaching students with significant based learning disabilities using methodology, with full tuition paid by the school district at the public expense. Dated: June 23, 2015
ESTHER MORA, 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 RECORD
PARENT
A Parent’s Hearing Request, 1/9/14, 11 pages
B Individualized Education Program, 6/17/10, 7 pages
C Individualized Education Program, 6/12/11, 16 pages
D Individualized Education Program, 5/30/12, 13 pages
E Individualized Education Program, 6/11/13, 13 pages
F Individualized Education Program, 6/24/14, 12 pages
G NYCE DOE Psychoeducational Evaluation By:
, 5/12/10, 4 pages
H Evaluation
By: , Ph.D., 8/6/13, 8/27/13, 11 pages
I NYC DOE Pschoeducational Evaluation Report By:
, 6/10/14, 4 pages
J Student Academic Evaluation
1/30/15, 64 pages
K Letter from NYC DOE to Parent, 1/25/13, 1 page
L Email Correspondence between Parent and NYC DOE,
2/11/4, 5/29/14, 14 pages
M Letter from Parent to NYCDOE with confirmation, 3/21/14, 2 pages
N Letter from Parent to NYC DOE with confirmation, 12/26/14, 4 pages
O Motion, 2/13/15, 2 pages
P Impartial Hearing officer’s Decision to Motion, 2/23/15, 5 pages
Q Impartial Hearing Officer’s Amended Decision on Motion, 3/2/15, 5 pages
R Impartial Hearing Officer’s Order on Pendency, 3/9/15, 5 pages
S Impartial Hearing Officer’s Decision on Motion, 4/1/15, 4 pages
T ’s Curriculum Vitae, July 2013, 55 pages
U , Ph.D Curriculum Vita, undated, 7 pages
V
Evaluation by. , , 4/15/15, 2 pages
W and Processing Evaluation By:
, Ph.D , 4/18/15, 31 pages
X Re-Evaluation By. , Ph.D,
4/20/15, 14 pages
Y Impartial Hearing Officer’s Decision on Motion, 5/1/15, 6 pages