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FINDINGS OF FACT AND DECISION
Case Number: 165128
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: April 20, 2017
Actual Record Closed Date: April 24, 2017
Hearing Officer: Audrey Daniel, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 20, 2017
Advocate — Student
For the New York City — DOE
District Representative — Student
I. Introduction — Student
On January 11, 2017, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of ("Student") brought on Student’s behalf by his parent (“Parent”). The hearing was conducted and concluded on one day on April 20, 2017.
II. Background
Parent filed an Impartial Hearing Request on or about January 10, 2017, alleging that the New York City Department of Education (DOE) failed to provide Student with a Free and Appropriate Public Education (“FAPE”). Specifically, Parent requests at an enhanced rate of per period for the 2016-2017 school year, as well as and and . (Exh. A).
For the 2015-2016 school year, Student was classified as , and mandated to receive , . Additionally, he was mandated to receive
and .
(Exh. G). There was no meeting held for the 2016-2017 school year until December 13, 2016. (Exh F). The same services were recommended for the 2016-2017 school year.
Parent’s advocate notified the hearing officer at the hearing, that despite numerous attempts by both the DOE and Parent to locate a , no provider could be located at the DOE’s customary rates. (Tr. pages 8-9).
No witnesses were presented by either party at the hearing, and the below constitutes agreement by both parties to the relief granted. (Tr. page 10).
III. Discussion
FINDINGS OF FACT AND DECISION
FAPE
The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C.
sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to
(a) whether the school district complied with the procedures set forth in IDEA; and (b)
whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).
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 (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).
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].
BURDEN OF PROOF
The burden of proof is on the DOE to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal
No. 11-091.
The DOE agrees that the DOE did not locate an . (Tr. pages 10-
11). However, the parties agree that the remaining services mandated by both IEP’s are being provided at this time. (Tr. page 8). As a result of this inability of the parties to locate a provider at the DOE’s usual and customary rates, the parties agreed, at the hearing, to the enhanced rate of per hour for a for the 2016- 2017 school year, which is a forty-week school year running from September 8, 2016 to June 30, 2017. The maximum hours for the provision of this service is hours.
IV. Order
IT IS THEREFORE ORDERED THAT:
1. The New York City Department of Education failed to provide a Free and Appropriate Public Education to Student for the 2016-2017 school year.
2. The DOE will provide payment for a for a maximum of at a rate not to exceed per hour, services to be provided in .
3. The remaining issues alleged in the January 10, 2017 due process request have been resolved outside of the hearing process.
Dated: April 28, 2017
AUDREY DANIEL, ESQ.
Impartial Hearing Officer
AD:
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
None