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FINDINGS OF FACT AND DECISION
Case Number: 164975
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: February 2, 2017
Actual Record Closed Date: February 2, 2017
Hearing Officer: Mary Noe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 2, 2017
Parents
Parent (Via Telephone) — Student
(Via Telephone) — Student
District Representative — DOE
District Representative — DOE
DOE
Parent requested a hearing on December 23, 2016. I was appointed on January 4, 2017. I scheduled a hearing for February 2, 2017. Parent is pro se. District is represented by and .
The compliance date was not extended by either party. An impartial hearing officer is regardless of the parties' positions, to ensure compliance with the 45-day timeline for issuing a decision (see Application of the Dep't of Educ., Appeal No. 11-095;
Application of the Dep't of Educ., Appeal No. 11-037; Application of a Student with a Disability, Appeal No. 08-064; Application of the Dep't of Educ., Appeal No. 08-061).
The student is , classified as and currently
attending in the .
The parents in their complaint state that “
.” (Exh. 1)
In the IEP dated January 30, 2015 the district recommended the following:
. (Exh. 22) There are records of other submitted that were provided to the student but I see none of these services on the IEP. (Exh. 3)
The IEP dated November 4, 2016 recommends the following:
. (Exh. 13)
In a dated October 21, 2016, the student’s composite score is (Exh. 15)
In the Evaluation dated January 26, 2015, the student’s composite score was (Exh. 28)
, did the testing on the dated October 21, 2016 (Exh. 15) and the Evaluation dated January 26, 2015. (Exh. 28)
Ms. was asked the question:
(T. 51-52)
A Teacher Report Form dated October 21, 2015 indicates that the student has
“ ” and
. (Exh. 14)
In a dated January 5, 2015, the observer noted that the student . The student . The student .
(Exh. 29)
In the dated December 3, 2014, it is noted that the parent stated that “ .” The parent stated that the student could do better. She stated that . The parent stated . The parent thinks the referral is necessary. Due Process Rights were explain to the parent and they were given a copy. (Exh. 30)
On February 24, 2014, March 24, 2014 and December 3, 2014, the parents gave their consent to have the student evaluated. (T. 34, 32) On June 6, 2014 the parent withdrew her request to have the student evaluated. (T. 34)
The Evaluation dated July 11, 2016 provides the following information:
. (T. 19-2) The Teams recommendations were:
.
(Exh. 19-3)
Ms. , the student’s testified that the student is not making significant progress in his current setting.
. (T. 83)
DISCUSSION
The IDEA (20 U.S.C. §§ 1431-1444; 34 C.F.R. § 303.340) states that beginning at the age of 3 and generally continuing until the age of 21, a school district must provide a free appropriate public education (FAPE) based on their educational needs which includes special education and related services, provided in accordance with an IEP (20 U.S.C. §
1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. §300.347).
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 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]. 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]).
The parents are challenging the IEP dated November 4, 2016. The documents the IEP team should have reviewed were the (Exh. 15),
(Exh. 16), Evaluation (Exh. 20);
Evaluation (Exh. 21); Evaluation January 30, 2015 (Exh. 28). The
IEP team included , the student’s teach and the student’s teacher. The recommendation from recommends
(Exh. 19, 20), the teacher testified that
(T. 83), and therefore the placement of a is inappropriate. (Exh. 29)
The recommendation of is inappropriate. Her testimony that translates merely only to the student’s strengths and weaknesses is not persuasive.
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]).
The parent testified that he has “looked into” three private schools and he feels they are appropriate to address the student’s needs. (T. 102) The parent provided no information as to the program that the student would receive at the school to address the student’s specific needs. No one from the school testified and it is unclear from the testimony and evidence whether such a school would be appropriate.
The district created an IEP after the complaint was filed. The documents submitted were not admitted into evidence since they were created after the complaint.
The parent alludes to a request for compensatory education, however, documentation exists indicating that the parent withdrew her consent to have the student evaluated.
The parent’s request is denied. The district is required to convene a CSE meeting within thirty days of the date of this order and include in the IEP team a psychologist who is a New York State licensed psychologist and can interpret the results and
.
Dated: February 13, 2017
MARY NOE, ESQ.
Impartial Hearing Officer MN:
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
DEPARTMENT OF EDUCATION
1 Due Process Complaint, 12/23/2016, five pages
2 Due Process Response, 1/10/2017, four pages
3 Service Records, various dates, 13 pages
4 Prior Written Notice, 1/13/17, two pages
5 Withdrawn
6 Withdrawn
7 Withdrawn
8 Withdrawn
9 Consent for Assessment, 11/15/2016, five pages
10 Referral, 11/14/2016, five pages
11 Additional Request for Reevaluation, 11/14/2016, one page
12 Request for Reevaluation, 9/9/2016, one page
13 IEP, 11/4/2016, 17 pages
14 Teacher Report Form, 10/21/2016, two pages
15 , 10/21/2016, three pages
16 , 10/7/2016, three pages
17 Consent for Assessment, 9/14/2016, two pages
18 Request for Evaluation, 9/6/2016, one page
19 , 7/13/2016, three pages
20 Evaluation, 7/11/2016, 18 six pages
21 Evaluation, 6/2/2016, four pages
22 IEP, 1/29/2016, 16 pages
23 Meeting Notice, 1/6/2016, three pages
24 Authorization to Attend, 2/4/2015, one page
25 Consent for Initial Provision of Services, 2/2/2015, two pages
26 Prior Written Notice, 1/3/2015, three pages
27 IEP, 1/30/2015, 14 pages
28 Evaluation, 1/3/2015, five pages
29 , 1/5/2015, one page
30 , 12/3/2014, one page 31 , 2/30/2014, three pages 32 Consent for Evaluation, 12 12/3/2014, one page 33 Emails to Parents, 1/2017, five pages 34 Documents Pertaining to Initial Process, 2014, nine pages