Impartial Hearing Decision

_. a minor, by and through her Parent(s),

Petitioners, Case No. P|

- against Ellen Cutler-Igoe, Hearing Officer SS CENTRAL SCHOOL DISTRICT, Respondent. ree

FINDINGS OF FACT

AND DECISION

INTRODUCTION

This matter comes before the undersigned Hearing Officer on Petitioners’ (“Parents”)

Notice of Due Process Complaint, filed on or about March 9, 2015. HO I. This Hearing Officer was appointed on March 10, 2015 and hearings ensued on June 11, 2015 and June 30, 2015.

They were closed hearing, and Parents appeared Pro Se. Respondent (“District) was represented by | | & P| LLP. Parents entered into evidence exhibits A to C. The District entered into evidence exhibits 1 to 12. Both parties submitted written closing arguments on July 14, 2015. HO UH, Il. The record was closed on July 26, 2015. An extension of compliance date was granted due to this Hearing Officer’s inability to contact Parents and District’s witness availability.

JURISDICTION

The due process hearing was held, and a decision in this matter rendered pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 ef seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 ef. seg.

BACKGROUND

GD. is 2 Gp female elementary school student with a 3 GR <!2ssification. Student currently attends elementary school in the J School District. Parents requested and attended an Individualized Education Program (“IEP”) meeting on October 28, 2014 resulting in the herein due process complaint alleging an inappropriate IEP for@@TM®. and requested a change in I services provided to Qp for the 2014-2015 school year. Services detailed in the current IEP include (Mervices 2 x 30, 3:1. Parents are requesting (MM services^[1] x 30, 1:1 and 1 x 30, 3:1. District filed a timely response to the Complaint.

The due process hearing commenced, and at the outset of the hearing, this Hearing Officer entered into evidence both Parents and Respondent’s proposed exhibits. Parent neither testified, nor presented any evidence. The Respondent presented two witnesses: The designated Chairperson of the Committee on Special Education (“CSE”), and the

ISSUE

A. Whether the {J services detailed in the IEP dated October 28, 2014 was sufficient to provide @. a FAPE during the 2014-2015 academic school year.

Parents requested relief in the form of more intensive individualized [J services,

FINDINGS OF FACT

After considering all the evidence, testimony and position statements as presented at the hearings, this Hearing Officer’s Findings of Fact are as follows:

1. Student is five years old and in elementary school. Student was found eligible for special education services for a i a Student Qe in the PI Central School District at the time of the IEP Dated October 28, 2014.

Student completed Kindergarten in June 2015, and was promoted to the First Grade.

The District convened a CSE on October 28, 2014, and concluded im: need to warrant services 2 x 30, 3:1.

The Parents did not agree with this proposed level of services.

The Parents requested more intensive services and restrictive placement in the form of1 x 30, 1:1 and 1 x 30, 3:1.

Parents declined a re-evaluation of Student following implementation of the October 28, 2014 IEP.

CONCLUSIONS OF LAW_AND DISCUSSION

Conclusions of Law

Based upon the above Findings of Fact, arguments of counsel and post-hearing submissions, the Conclusions of Law are as follows: The purpose of IDEA is “to ensure that all children with disabilities have available to them a free appropriate education that emphasizes special education and related services designed to meet their unique needs.” 20 U.S.C. § 1400(d) Implicit in both case law and statutory purpose is the intent that a student’s access to a Free Appropriate Public Education confers some educational benefit to a child with a classified disability. 20 U.S.C.

§1400(d)(1)(A).

Discussion

The District Provided Student a Free Appropriate Public Education in the Least Restrictive Environment.

Under the IDEA, the school district must provide students with classified disabilities a FAPE. 20 U.S.C. §1400(d)(1)(A). A child receives a FAPE through related services and special education equipped to provide the student an educational benefit. The district must provide such services in the least restrictive environment for the child. Board of Educ. v. Rowley, 458 U.S.

176 (1982). Students with disabilities are not entitled to receive the best benefit, but simply some benefit.

The District’s position is that qi was provided a FAPE during the 2014-2015 school year. Through testimony and evidence, the District detailed the process and procedure of how the District’s CSE determined the services designated per the IEP dated October 28, 2014. (Tr.

118-119) Dr. FT Administrator for the J Central School District testified that upon GD entrance into the District in September 2014, the current IEP from School district was adopted per statute and regulation. (Tr. 115) However, after only two months on October 28, 2014, the District’s CSE convened to discuss the Student’s current needs, and applicable services resulting in the herein more recent IEP. (Tr. 115-116) Dr. P| further testified that although the J IEP created in 2013 called for group [J therapy 5:1 student ratio, the District’s CSE listened to the Parents’ concerns and decreased the group ratio to 3:1. She continued that the District’s CSE determined Gq} needs based on an assessment that her disability level was | i nas: thus diminishing the need for individual sessions.

The parent highlighted through Dr. P| testimony that she has not had direct contact with children since 2004 (Tr. 127), however Dr. P| testified under direct that her experience has spanned over 14 years. (Tr. 112) Although p. herself had not met qa. she was clear that review of all the progress notes of past and current P| therapists provided enough information for the District’s CSE to determine the services that would help Fd gain an educational benefit. (Tr. 145) Conversely, the Parents sought to show lack of progress through wa June 2015 report card as evidence that the services were not appropriate, but Dr. a testified that the June 2015 report card did not exist when the October 28, 2014 IEP was created, and that gp. met the majority of her IEP goals. (Tr. 174-176) f | ion P| GE testified for the District with regards to her work with a and resulting recommendations. Ms. P| testified that although she took over , file from a colleague on October 3, 2014, she had adequate time to make the recommendation that @. engage in small group 4 services two times each week, as opposed to one individual and one group session weekly. (Tr. 187-188) She corroborated. her findings by stating that ea speech was intelligible, that she made significant gains in articulation, and that her main area of concern was volume. (Tr. 187) Ms. GS confirmed that the CSE’s main reason for declining an individual weekly session for @TM®. was that children who receive such services have a severe speech disability, and that students like@® who have a GE‘0 GEE sisability are better served in a small group setting. (Tr. 188-189)

The Parents provided no testimony to support their argument that the District did not provide their daughter a FAPE. They did present however > report card and progress of IEP goals, seeking to demonstrate how their daughter was academically behind her peers, and performance levels were based on the District’s failure to at least provide 4 with one individual iii session each week during the 2014-2015 academic school year. However, as previously confirmed, the report did not exist at the time the IEP was created.

DECISION

This Hearing Officer is not persuaded that the IEP in issue was procedurally or substantively flawed thereby denying qa of an educational benefit. The testimony and evidence supports that GED then-current levels were addressed at the meeting through several reports and summaries. Additionally, there is no dispute that the Parents refused to allow @@®. to be re-evaluated even though the District suggested this as an additional means to determine the . current ( needs as it related to her academic progress. It is undisputed that “a school district fulfills its 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.” See, Cerra v Pawling Cent. Sch. Dist., 427F.3d 186, quoting Walczak v. Florida Union Free Sch. Dist... 142 F.3d 119, 130. To that end, there is no evidence that the IEP prepared by the District’s CSE on October 28, 2014 did not allow K.D. to educationally advance in all areas of concern. Parents’ statement that “the district...refused to comply with our wishes, (HO III)” does not meet the criteria set forth in 34 C.F.R. § 300, especially since school districts are not mandated to grant wishes but act in the best interest of a child. To the contrary, the District prepared and provided current reports and assessment in a cogent fashion defending the appropriateness [? services.

As such, upon a thorough review of the witness testimony, evidence as submitted by the parties, closing briefs/memorandum of law and all other relevant laws and regulations, I find that the District offered a FAPE for the 2014-2015 school year. No further action is required by the District.

SO ORDERED.

DATED: August 5, 2015 en Rer E ag

ELLEN CUTLER-IGOE, Esq.

HEARING OFFICER

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District 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 personally 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 personally 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. 8 NYCRR § 279.2(b). Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

The rules of procedure are found in Part 279 of the Regulations of the Commissioner of Education (http://www.sro.nysed.gov/part279home.html).

APPENDIX A — PERSONALLY IDENTIFIABLE INFORMATION

Co GE CENTRAL SCHOOL DISTRICT

Case No. po

Student’s Name p

Date of Birth [Redacted text]

Attending School RR FE ementary School

Father’s Name / Guardian 1’s Name Ga: Mother’s Name / Guardian 2’s Name fr

Assistant Superintendent of Pupil Dr. i i Personnel Administrator for Special Education and Dr. FL Special Services

APPENDIX B— ADMITTED EXHIBITS

a. v. ro CENTRAL SCHOOL DISTRICT Case No. a

EXHIBIT DATE DESCRIPTION NUMBER

PA. HO! 6/25/15 Parent’s Complaint 4 HO I TAA/15 District’s Post-Hearing Memorandum of Law_ | 11 HO HI TANS Parent’s Written Closing Statement 17 Progress Report for mm 3/13/15 2 pages

PB. | Progress Report IEP Goals Z 2014-2015

PC. | Kindergarten Report Card Zz R1 10/28/14 | CSE Packet Cover Sheet ] 2014-2015

R2 8/18/14 IEP 7

R3 10/28/14 | Subcommittee on Special Education Prep 1

Sheet

R4 10/8/14 Classroom Teacher Report 1

R5 10/21/14 | {and GR Report 2

R6 10/15/14 | Classroom Observation 2

R7 10/9/13 PE 206 BR Evaluation by ia 5

P| Preschool

R8 10/28/14 | Prior Written Notice 2

R9 10/28/14 | CSE Attendance Sheet |

R10 10/28/14 | IEP 8

Rll 9/15/14 Letter from Parent to School Psychologist 1 R12 5/19/2014 IEP from (RE School District

Footnotes

[1] x 30, 1:1 and 1 x 30, 3:1.