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FINDINGS OF FACT AND DECISION
Case Number: 165073
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 30, 2017
Actual Record Closed Date: May 3, 2017
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 30, 2017
Attorney — Student
Parents
District Representative — DOE
After the recusal of other hearing officers, the matter of came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.
The parent requested this hearing alleging that the Student was denied a FAPE for a wide variety of reasons for the 2014-2015 and 2015-2016 schools years, and is entitled to evaluations as a remedy. Upon the joint application of the parties, multiple timelines extensions were granted in this case. For each such extension, I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District.
FINDINGS OF FACT
The Student is a who is eligible for services as a Student with . There is no dispute that the Student has had for the prior two school years, and . affect his progress greatly, and he has . (Exh. 2)
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of
2007.
Federal and State regulations provide that, subject to certain limitations, a parent has the right to an I.E.E. at public expense if the parent disagrees with an evaluation obtained by the school district. 34 C.F.R. Sect. 300.502(a), (b); 8 NYCRR Sect.
200.5(g)(1). If a parent requests an I.E.E. at public expense, the school district must, without unnecessary delay, ensure that either an I.E.E. is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 34 C.F.R.
Sect. 300.502(b)(2)(i)-(ii); 8 NYCRR Sect. 200.5(g)(1)(iv). If a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense 34 C.F.R.
Sect. 300.502(b)(3); 8 NYCRR 200.5(g)(1)(v); DeMerchant v. Springfield Sch. Dist., 2007 WL 2572357, at *6 (D. Vt. Sept. 4, 2007). However, if the parent shows that the District evaluation is inappropriate, or if the District unnecessarily delays in seeking an impartial hearing to contest a parent's request for an I.E.E., the IHO may order that the District provide the requested I.E.E. at public expense. Pajaro Valley Unified Sch. Dist.
v. J.S., 2006 WL 3734289 (N.D. Cal. Dec. 15, 2006) (delay in requesting an impartial hearing resulted in IHO order to fund I.E.E.).
In effect, the parent’s Due Process Request constitutes a request for an I.E.E., and the school district did not respond to the request at all. Application of a Student with a Disability, Appeal No. 05-041 (2005). In fact, the school district more or less conceded that the Student requires the requested assessments. (Tr. @ 16) This lack of response, pursuant to applicable law, entitles the parent to the requested evaluations, which I will order forthwith. The District makes no argument to the contrary.
ORDER
As a result of the foregoing, the parent is hereby awarded a private at the prevailing rate in the community; private at the prevailing rate in the community;
, to be conducted by the Department of Education; , to be conducted by the Department of Education; , to be conducted by the Department of Education. After the evaluations are complete the District will reconvene the CSE to review the evaluations.
Dated: May 17, 2017
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer MSL:
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.
Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html
DOCUMENTATION ENTERED INTO THE RECORD
DEPARTMENT OF EDUCATION
1 Due Process Complaint, 1/5/17, six pages
2 IEP, 10/5/16, 18 pages
3 Prior Written Notice, 10/24/16, four pages
4 , 1/29/16, four pages
5 , 1/29/16, ten pages
6 , 2/4/16, ten pages
7 6/23/15, Review Meeting, two pages
8 IEP, 10/2/15, 17 pages
9 IEP, 6/6/14, 15 pages
10 , 6/24/14, two pages
11 , 6/24/14, one page
12 Unidentified document, Progress Report, two pages
13 Referral, 1/10/17, two pages
14 , 1/15/16, two pages
15 , 12/15/15, nine pages
16 , 4/21/15, three pages
17 Student Progress Report, two pages
18 Tracking Form, 3/27/15, seven pages
19 RSA, 1/4/17, four pages
20 RSA, 10/19/16, four pages 12
21 Prior Written Notice, 7/11/14, four pages
22 2014/2015 Report to Family, Unidentified date, 17 pages