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: July 9, 2015
August 7, 2015
August 14, 2015
Actual Record Closed Date: September 2, 2015
Hearing Officer: Israel S. Wahrman, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 9, 2015
Parent (Via Telephone) — Parents
IHRO District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 7, 2015
Father — Parents
Mother — Parents
(Via Telephone) — Parents
(Via Telephone) — Parents
IHRO District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 14, 2015
Mother — Parents
(Via Telephone) — Parents
IHRO District Representative — DOE
BACKGROUND AND POSITIONS OF THE PARTIES
On May 14, 2015, I was appointed by the New York City Department of Education (DOE) as Impartial Hearing Officer, pursuant to the Individuals with Disabilities Education Act (IDEIA), 20 U.S.C. β1415 (b) (2) . I am certified as an Impartial Hearing Officer by the University of the State of New York, Education Department. The hearing took place on the following dates: July 9, 2015 (prehearing conference), August 7, 2015 and August 14, 2015. Extensions of the compliance date were granted due to unavailability of witnesses as well as to allow time for receipt of the final transcript and then time for rendering a decision by this Impartial Hearing Officer (IHO).
This is a dispute with regard to the 2015-16 school year. is a student who has
( ), a . Tr. 52-53,
Exhibits A, B, D. The issues between the parent and the school district have been resolved with the exception of whether should receive ( ) and ( ) on a basis or only during the school year.
Tr. 101. The position of the school district is that the need for these services should be seen as rather than related to school and in addition the district argues that since a new IEP should be developed before next , it is “inappropriate for the Hearing Officer to order relief in this matter. Tr. 102. In fact, did get per year, prior to formulation of the current IEP that is now in dispute. That is, did receive services during the of 2015. It is just that the new IEP developed to commence in September, 2015, did not include this feature, although has been getting the services on a basis. Tr. 29. The parent view is that the and services are needed for and are school issues, in fact the new IEP includes these services during the school year. The
IEP indicates that services are not to be provided during July and August, however.
Exhibit 19-6. It is the position of the parent that the services should be for all
. Tr. 103-106.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The obligation of the school district is to provide a disabled child with a Free and Appropriate Education (FAPE). With regard to how much benefit is required for the educational program to be considered as appropriate, the US Supreme Court concluded that a school district is not required to “maximize each child’s potential commensurate with the opportunity provided other children.” B oard of Education v. Rowley, 458 U.S.
176, at 198. The third circuit, however, has held that an IEP must provide “meaningful educational benefit.” T.R. ex. Rel. N.R. v. Kingwood Township Bd. Of Educ. 205 F.3d 572, 577 (3d Cir. 2000). In Rowley, the case involved a student who was progressing nicely in regular education classes. With regard to a student attending special education classes, however, in Deal v. Hamilton County B oard of Education, 392 F.3d 840 (2004), at 864, the sixth circuit court of appeals concluded that “At the very least, the intent of Congress appears to have been to require a program providing a meaningful benefit toward the goal of self-sufficiency, especially where self-sufficiency is a realistic goal for a particular child.” It should be noted that this “Deal Standard “of what constitutes FAPE was cited without comment in a second circuit case, A .D. v. M.D. individually and on behalf of E.D., Plaintiffs v. The B oard of Education of the City School District of the City of New Y ork, 690 F. Supp. 2d 193 (2009), at 217. Also, further clarifying how much benefit is required to achieve FAPE, in Cerra v. Paw ling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing W alczak, 142 F.3d at 130 and M rs. B., 103 F.3d at 1121, explained that a district fulfills its substantive obligations if its IEP leads to progress and not regression and a district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan.
The problem with the DOE’s second argument with regard to the school year; i.e. that a new IEP should be developed before next , is that should the parent disagree with whatever the DOE recommends at the time of that IEP conference, would not be able to have the right to continue the and during the , while the matter is in litigation. This is the case despite that she received services this past , since the new IEP takes effect in September. Continuing in a student’s current program, defined as being the last agreed upon IEP or an unappealed decision by an IHO, is known as pendency. This lack of pendency with regard to is a serious concern, especially in light of the fact that the DOE also argues that and should not be on the IEP on a basis (despite the fact that received this past in the of 2015.) From the parent point of view, a withholding of and services during the would have serious negative implications, as shall be explained further below.
As mentioned above, if there is a dispute with regard to a program recommendation, under pendency, the student continues what has been in effect, based upon the last agreed upon IEP or decision by an Impartial Hearing Officer, while the litigation continues, 20 U.S.C. §1415; N.Y. Educ. Law §4404(4), as is clear from the following case law: Zvi D. v. Ambach, 694 F.2d 904, 906 (2nd Cir. 1982); Arlington Central School District v. L.P., 421 F. Supp. 2nd 692, 696 (S.D.N.Y. 2006); Application of a Child with a Disability, Appeal No. 07-063. Murphy v. Arlington Central School District, 86 F. Supp. 2d 354, 359 (S.D.N.Y. 2000), aff’d 297 F.3d 195 (2nd Cir. 2002),
Arlington Central School District v. L.P., 421 F. Supp. 2d at 696. Letter to Hampden, 49
IDELR 197 [OSEP 2007].
So having the program on the IEP or ordered by this IHO would guarantee that the services would continue during the months, while the litigation is ongoing, if there were to be a dispute regarding whether the services were needed during this time period.
With regard to the other argument by the DOE, that and are and not educational issues for this student, this is a disingenuous argument in light of the fact that these services are on the student’s IEP for the school year. It is hard to understand how services that the DOE agrees are educational in nature during of the year, become and not educational during the remaining two months of the year. Exhibit 19-6.
Nevertheless, certainly many if not most students in special education and with special education services do not receive such services on a basis. In considering whether the DOE should be ordered to provide and on a basis, we need to consider what the effect would be of limiting them to only per year, as the DOE’s IEP currently recommends.
In a letter from Dr. ( ), Chief of the Division of Genetics at the , it is explained that that ’s “joints are susceptible to , a situation that if not cared for appropriately will cause her to develop at a . “ The report also adds that “In an attempt to
…”
reiterated the importance of continuing the and for and other students with over the , explaining, “…it’s imperative that they get the all through the of the year because this condition doesn’t stop over the . In fact, you could argue that over the when kids are much more active than during the school year, it’s even more essential that they be receiving the because they are more at risk of having injuries…” Tr. 55-56. The doctor also opined that not only could you have regression if and are not provided during the but there could be as well. Tr. 62.
, , “strongly recommended “that services continue through the months to “
.” Exhibit B.
, , testified and emphasized the importance of both and being continued throughout the year. She emphasized that she has seen regression in ’s functioning when there have been gaps in provision of services. She also explained that such services are important for in areas such as , , ,
,
. Tr.
77-78, 89-98.
It is clear that the and services impact upon important aspects of and it is essential for these services to be provided year round to and to . Provision of these services only per year would be a denial of FAPE since this would cause
. I am therefore ordering that the DOE order that the and services provided to , consistent with her IEP, be provided per year.
ORDER
and services shall be provided to , consistent with her current IEP but they shall be provided per year.
Dated: September 10, 2015
ISRAEL S. WAHRMAN, 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 The Letter, 5/12/15, 1 page
B Letter from , 07 (14-15), 1 page
C , 5/25/15, 1 page
D info Packet, 11/2003, 19 pages
DEPARTMENT OF EDUCATION
1 Due Process Complaint, 5/12/15, 4 pages
2 Letter, 4/7/14, 1 page
3 Letter, 4/9/14, 1 page
4 Pre-School Summary Report, 4/28/14, 2 pages
5 Social History Report, 4/28/14, 2 pages
6 Evaluation, 4/28/14, 5 pages
7 , 4/28/14, 1 page
8 Letter, 5/14/14, 1 page
9 Evaluation, 5/14/14, 6 pages
10 Evaluation, 5/16/14, 8 pages
11 Evaluation, 5/16/14, 4 pages
12 CPSE IEP, 6/24/14, 17 pages
13 Parental Consent for Evaluation, 1/30/15, 1 page
14 Report, 1/29/15, 2 pages
15 Teacher Report, undated, 1 page
16 Social History Update, 1/16/15, 5 pages
17 Notice of IEP Meeting, 3/19/15, 3 pages
18 Annual Report, 3/27/15, 4 pages
19 Individualized Education Program (IEP), 4/1/15, 11 pages
20 Prior Written Notice of Recommendation, 4/1/15, 3 pages
21 School Location Letter, 5/31/15, 4 pages
22 Individualized Education Services Program (IESP), 6/17/15, 8 pages
23 Prior Written Notice of Recommendation, 6/17/15, 3 pages