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FINDINGS OF FACT AND DECISION
Case Number: 165648
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: April 4, 2017
Actual Record Closed Date: April 4, 2017
Hearing Officer: Mary Noe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 4, 2017
Parents
District Representative — DOE
(Via Telephone) — DOE
The parent requested a hearing on March 3, 2017. I was appointed on March 3, 2017. On March 5, 2017 I scheduled a hearing for April 6, 2017. However, the parent was unavailable for most of the month of April and a new date was scheduled to accommodate the parent. The hearing was on April 4, 2017. The parent represented herself and the district was represented by . Neither party made an application for an extension of the compliance date.
The student’s date of birth is and her classification is . The date of the last IEP is February 15, 2017. The student attends and is in a .
The IEP provides
. The is provided during only. (Exh. 1) The parent requests the be provided for
.
The district’s recommendation is based on the testimony of , the . Ms. stated that the student
.
.
. (T. 44 - 46)
. (T. 50 – 52) Ms. spoke with the who
did not have any concerns about the student in the class. The stated that she noticed that Ms. stated she spoke with the student’s classroom teacher about and there were no problems.
As a , Ms. supervised the student’s provider, . Ms. reviewed the and .
(Exh. 3)
.
. (T. 18)
Ms. testified that the recommendation was made based on the conversation with the provider, all the notes and any other information. Additionally, it was noted
. For example,
.
. (T. 31)
Ms. read the documentation from the parent ’s provider, , as well as the other doctor. The documentation did not change her mind because it really speaks to the . (T. 31)
The parent submitted into evidence a letter from Dr. , dated March 15, 2017. She recommends
(Exh. A)
Dr. , , in a letter dated March 13, 2017 states that the student requires
. (Exh. B)
in her Progress Note dated March 20, 2017
recommends
(Exh. C)
The parent testified that
. (T. 59)
. .
. (T. 59)
The parent stated the teacher said at the IEP meeting that
. (T. 61)
The student
. . (T. 63)
Discussion
According to the Regulations of the Commissioner of Education, "[s]tudents shall be considered for [ESY] special services and/or programs in accordance with their needs to prevent substantial regression" (8 NYCRR 200.6[j][1]; Application of a Child with a Disability, Appeal No. 07-039; Application of the Bd. of Educ., Appeal No. 04-102; see 34 C.F.R. § 300.106 [defining ESY]; 8 NYCRR 200.4[d][2][x] [noting that a student's IEP shall indicate whether the student is eligible for a special service or program on a 12- month basis]). The Regulations define substantial regression as "the student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year" (8 NYCRR 200.1[aaa]).
In February 2006, the Office of Vocational and Educational Services for Individuals with Disabilities (VESID), published a guidance memorandum, dated February 2006, which states the following regarding ESY services:
A student is eligible for a twelve-month service or program when the period of review or reteaching required to recoup the skill or knowledge level attained by the end of the prior school year is beyond the time ordinarily reserved for that purpose at the beginning of the school year. The typical period of review or reteaching ranges between 20 and 40 school days. As a guideline for determining eligibility for an extended school year program a review period of eight weeks or more would indicate that substantial regression has occurred.
(http://www.vesid.nysed.gov/specialed/publications/policy/esy/qa2006.htm; see also Application of a Child with a Disability, Appeal No. 07-089).
The district has not provided a . The parent’s documents were created for the purpose of the hearing (T. 11) and the CSE did not have the documents before making a recommendation. There is insufficient evidence to support the district’s recommendation or the parent’s recommendation.
Based on the testimony and evidence provided, it is hereby ordered:
the parent’s request is denied; the district is to conduct a with thirty days of this order; the district is to conduct a new CSE meeting within thirty days of the completion of the
.
Dated: April 21, 2017
MARY NOE, ESQ.
Impartial Hearing Officer MN:
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
PARENT
A Letter written by , 3/15/17, 1 pages
B Letter from , 3/13/17, one page
C progress note, 3/20/17, 1 pages
DEPARTMENT OF EDUCATION
1 IEP, 2/15/2017, nine pages
2 Prior written notice, 3/6/17, three pages
3 , 3/2/17, two pages
4 IEP for 2015/'16, 3/18/16, 11 pages
5 annual review plan, 3/17/16, two pages
6 teacher report, 3/17/16, two pages
7 IEP from 2014/'15, 4/7/15, 11 pages
IMPARTIAL HEARING OFFICER
I Parent's complaint, three pages