Impartial Hearing Decision

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In the Matter of The Appeal Of * * * *

On Behalf Of * * * *

From Action Of * * * *

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HEARING OFFICER'S FINDINGS OF FACT AND DECISION

IN THE ABOVE CAPTIONED MATIER

July 30, 2018

RECEIVED

AUG Ol 2018

OflFrcgi:fl5c IOUCATZON

UNJf

DATES HEARINGS WERE HELD

Hearings were held in 20 t 8 on:

1. January 10 2. January 30 3. June 7 4: June 12

INDIVIDUALS WHO APPEARED AT THE HEARINGS

For the Parents

Parent

Representing the Parents:

The parents were represented by Mr. ocate. For the District

Elementary Education S ecial Education Supervisor,

- Special Education and Student Services,

Representing the School District:

The District was represented by

WRITTEN EVIDENCE SUBMITTED

Parent Exhibits:

The arents resented no exhibits.

ubmitted a 9-page closing statement and a 14-page copy of a pendency

IHO about a child other than - District Exhibits Exhibits 1 through l l were admitted in1o evidence

J. IEP, 6/27/16, 12 pages

2, Progress Reports, 2016~2017. 5 pages

3. IEPt 3/22/17, 13 pages

4. District's Motion to Dismiss DPC, 4/14/17, 103 pages

5. Dul! Process Compliant Notice 8/4/16 16 a ,es

6. Educational Re 2/9/17, 4 pages

7. Statement frm 1~ 1 , one page

8. Annual Review i rogress Report~ 5/1/16. one page

9. Annual Review Progress Report, 4/22/16, 2 pages

10. CPSE Speech Language Evaluation, 3/15/16, 6 page.s. plus four pages of e-mails

11. District's Response, 4/l 3/16 (On Original Exhibit List as Exhibit 2) Exhibits 12 throug,h_ 20. were marked for _identification_ but were not marked into evidence.

13, Decision b

14. E-maH by . 7/25/17 at 1:59 PM

15. E-mail by , 7/26/17 at 6: 18 PM

16. E-mail by , 7/26/17 at 6:26 PM

l 7. E-mail by , 7/26/17 at 6:31 PM

18. E-maH by , 7/27/17 at t :09 PM 19. E-mail by 20. Dc-c. No. 1

Ms. ·ubmitted a 29-page closing statement. Impartial Hearing Officer ·rcxhibits

L Memorandum or Law l/17/18, 8 pages

2. Statement by ue page

3, flearing Offi sion, 1/18/18. 4 pages

Note: As directed by Ms. State Review Officer, the District provided this Hearing OH es or each of the previous IHO~s interim and final decisions as well as copies of each of the SRO decisions issued relative to the parent's December 2016 and A.pril 2017 due process comp]aiat notices

BACKGROUND

The following background has been excerpted from Applh;ation.o[a Student with a Disability. No. 17-072.

This case began on August 4, 2016 when the parent filed a due process complaint notice alleging that the district failed to offer her child a free, appropriate public education (FAPE) for the 2016-2017 school year. That complaint was settled by a stipulation of agreement, signed by both parties in September 2016.

On December 7, 2016, the parent filed another due process complaint notice allegin-the CPSE met on December 7, 2017 and improperly refused to develop an IEP fo that reflected the placement he was attending pursuant to the stipulation of settlemen and academic annual goals. An impartial hearing officer was appointed. While a ~ t i v e proceedings were under way, a CPSE met on March 22, 2017 and amende~ IEP to reflect his placement in an 18:2+2 "special class in an integrated setting" in a state-approved pre-school special education program at th-and included annual goals related to the student's academic needs.

TI1e impartial hearing officer rendered decisions dated February 9, 2017 and March 30, 2017, cumulatively dismissing the parent's December 2016 due process complaint notice on the grounds that the parent was barred from raising issues resolved by the stipulation of settlement and the March 2017 IEP resolved the parents remaining claim for relief.

The parent appealed from the dismissal of her complaint and, in a decision dated June26. 2017, the State Review Officer dismissed the parent's appeal from the IHO's decisions. The SRO held that, since the CPSE had convened in March 2017 and developed an IEP for the student, which included the amendments sought by the parent as reliefin her December 2016 due process complaint notice, the parent's claims were moot. The SRO did note that no hearing dat~s have been held and no exhibits have been admitted into evidence by the IHO.

On April 6, 2017, th.arent filed another due process complaint notice alleging that the district did not offe a FAPE for the 2016-201 7 school year "due to a deficient IEP for a majority e school year." The parent argued that the district failed to develop appropriate educational goals for him prior to the March 2017 CPSE meeting. Further, the parent alleged t h a t - IEP did not reflect a "placemen-ram" prior to March 24, 2017. She asserte~ue to the deficiencies in the IEP, ailed to make "appropriated/sufficient/meaningful progress."

The parent acknowledged the "prior filing" relating to.but argued that now sought "compensatory educational hours" based on the " JIii ge that-asne due to the district's prohibiting educational goals being created and outlined i IBP for more than six months." As relief, the parent sought "637 hours ofcompens ory special education."

In a decision dated April 17. 2017, the IHO dismissed the parent,s due process complaint with prejudice. The IHO s5t,at the parent had waived~t to commence the instant action and that~ould not engage in '"claim tlfflffing." The IHO also found that the parent was ''tcymg to re-litigate an issue which had already been raised and rectified in the prior hearing."

The parent appealed from the IHO~s April 17. 2017 decision and requested that it be reversed. The parent argued that the IHO erred in dismissing her complaint without addressing her claim that the student-to-teacher ratio reflected in the March 2017 IEP did not match the student-to-teacher ratio outlined in the Septembe-6 stipulation of settlement. The parent further disputed the rno~s finding that as attempting to re-litigate previously decided claims and that the IHO violated her ue process rights by dismissini the complaint without ever establishing an administrative hearing record or receiving testimony.

In the parent's appeal from the IHO's April 2017 decision, the SRO agreed with the district and decl!· to address the parent's allegation that the IHO improperly refused to consider ·m that the student-to-teacher ratio reflected on the March 2017 IEP did not match e student-to-teacher ratio set forth in the September 2016 stipulation of settlement. With respectto the IHO's dismissal of the parent's due process complaint notice on the grounds that it was an. attempt to rel!liti ate prior claims and constituted "claim splitting," the SRO determined that, becaus missed the parent's December 7, 20 l 6 due process complaint notice on mootn grounds and the parent's April 6, 2017 due process complaint notice contained a new request for compensatory education relief, none of the prior proceedings had resulted in an adjudication on the merits of the parent's claims.

Therefore, the SRO reversed the IHO's dismissal of the parent's due process comp1ainln t ice on these grounds. - a lack of clarity from the IHO about the extent to which ound the parent waive · ght to pursue the impartial hearing regarding the issues sed and the different reli sought, the matter was remanded back to the IHO for a determination on the merits of the claims raised in the parent's April 2017 due process complaint notice. f ,

On remand, the IHO determined to rewrite her April 2017 decision dismissing the parent's due process complaint notice without the benefit of further proceedings.

The parent appealed the IHO's determination and requested that her decision be reversed and remanded to a new lHO.

In-cision dated October 19, 2017, the SRO determined that the IHO did not receive an~umentary or testimonial evidence, did not conduct a pre-he&ring conference or hearing in this matter, and has not developed a record consistent with standard legal practice or due process. As such, the SRO determined that the IHO's decision improperly addressed the substantive impact of the district's failure to develop an IEP reflecting the student's current program and including academic goals prior to March 20176 without evidence on which to base her determination. The SRO noted that the IHO provided no legal or evidentiary ba5is for these determination&, and concluded that, in light of the above and for the reasons set forth in Application of a Student with a Disability. Appeal No. 17-038, it is necessary to remand this matter again.

In conclusion, the SRO ordered that

I. The parent's appeal be sustained;

2. The IHO's decision be reversed;

3. The matter be remanded to an 1HO other than. the one who issued the July 27, 2017 decision. f

4. The district select the new IHO in accordance with the district's rotational selection procedures and state regulations;

5. The district provide the new IHO with copies of each of the IHO's interim and final decisions as well as copies of each of the SRO decisions issued relative to the parent's December 2016 and April 2017 due process complaint notices.

On November 7, 2017, as appointed as the impartial hearing officer in this case. The distric c e w1t t e SRO's instructions. As the appointed impartial hearing officer, I conducted a pre-hearing teleconference and, on the dates listed above, four impartial hearings.

STATEMENT OF FACTS

en the current Due Process Complaint Notice was filed on A ril 6 2 as a four-year old youngster who was attending Th

This placement was agree 1stnc an e

ett ement dated September 2016. That Stipulation calls for

1. Individual speech language therapy three times per week, thirty minutes per session;

2. Individual occupational therapy three times per week, thirty minutes per session;

3. Individual physical therapy three times per week, thirty minutes per session;

4. Center-based 18:1 +2 integrated program atllllllllbetween the hours of 8:30 AM and I :30 PM, Monday through Friday, for the period of September 19, 2016 through June 23, 2017;

5. Round-trip transportation from the student's home to-through June 23, 2017.

attended - for the 2016-2017 school year. On April 6, 2017, the parent ent Due J C s Complaint Notice.

PARENT'S POSITION

In the section of her Due Process Complaint Notice, entitled "Subject of the Complaint," dated 4/6/2017, the parent makes reference to a number of issues, some of which are duplicative.

Item I states that "the parent and t district are in disagreement with services that en provided 'Due to the above, it is the position of the parent tha as not made ap pnate/sufficient/meaningful progress ... "

Items 2 through 5 are repeats of the statement that "No educational goals were on

- E P for the month of" (September through December 2016).

Items 6 through 8 repeats that "No educational goals were on IEP for the month of" (January through March 24, 2017.

Items 9 through 13 repeat that "No placement/program was listed o EP for the month of" (September through December 2016).

Items 14 through 16 repeat that "No placement /program was listed o - IEP for the month of" (January through March 24, 2017).

Item 17 alleges that , . IEP was deficient in educational goals, benchmarks, and objectives for more than 6 months."

Item 18 alleges that "The parent and her advocate and other members of the CPSE were prohibited from creating educational goals at CP~ meetings prior to March 22, 2017."

Item 19 is a statement that the parent had notified the Board of Education of her concerns.

Item 20 states, "I am alleging a denial ofFAPE for the school year of2016-17.

This is due to a deficient IEP for the majority of the school year."

Item 21 states, in part, that "'this instant action is seekin ensatory educational hours for the exhaustive length of time that EP was deficient in educational goals."

Under the section entitled "Proposed Solution" o . u e Process Complaint Notice dated 4/6/2017, the parent wrote:

t "l. Thidistrict will agree to offer all relief sought in the IDEA DUE PROCESS COMPLAINT NOTICE (see subject of the complaint).

2. The district shall agree to a [sic] provid ·th 637 hours of compensatory special education.

3. The district will agree to pay the parent the sum of $26,000."

DISTRICT'S POSITION

The district's position is that "the parent is not entitled to the requested relief since the student was provided with a FAPE, and, even if the student's IEP dated December 7, 2016 contained a procedural defect insofar as the IEP did not contain the student's program or academic goals, such alleged procedural inadequacy did not impede the student's right to a ~PE, in that it did not significantly impede the parent's opportunity to participate in the decision-making process regarding the provision of FAPE to the student, or cause a deprivation of education benefits to the student. Accordingly, there is no basis to argue that the student suffered any harm as a result of such alleged procedural violations."

ISSUES

·s case is whether the , ol

provi free, appropriate pu t " I I • I • • t It nity to ap~priate n meaningful progress." The specific issues raised by the parent will be addressed in this decision.

OVERVIEW

Apnlicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a F APE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][l][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206- 07 [1982]).

AFAPE 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 devil(ilped 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; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014}; R.E. v. New York City l:]~'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]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A ]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP"' lf t (Walczak v. Fla. Union Free Sch, Dist., 142 F.3d 119, 129 <!~ir. 1998], quoting Rowley.. 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F,3d 247.. 253 [2d Cir. 20091). The Supreme Court has indicated that "lt]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist RE-1, 580 U.S ..,,.~-,,, 137 S. Ct 988,999 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures fi>r developing a student's IEP and indicated that n[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do notn (R.E., 694 F.3d at 190-91 )~ the Court has also explained that not all procedural effors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist.~ 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent Sch. Dist, 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged; an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a.) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision­ making process regarding the provision of a F APE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][iit 34 CFR 300.513[a][2]; 8 NYCRR 200.5Li][4][ii]; Winkelman v. Parma City Sch. Dist., 550 lJ .S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; MJt, 685 F.3d at 245).

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[fJ[3HE][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to pcnnit 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 adequacy ofa given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001 ). The statute ensures an "appropriate" education," unot 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 tlan IEP that is 'likely to produce progress, not regression,' and ... affords the student with an opportunity greater than mere 'trivial advancementrn (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at I 30 [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]). 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 Endrew F., 137 S. Ct at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances 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. l 16[a][2]; 8 NYCRR 200.1 [cc], 200.6[a][l]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, I 08 [2d Cir. 2007]; Walczak~ 142 F.3d at 132). L}dministrative Proccdrn:_~.§.;

When a student in New York is eligible fbr special education services, the IDEA calls for the creation of an individualized education program (IEP), which is de1egated to a local Committee on Special Education (CSE) that incJudes~ but is not limited to., parents, teachers~ a schooJ psychologist~ and a district representative (Educ. Law§ 4402; sec 20 l.LS.C. § 1414(d]l l][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200A[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints~ and initiate an impartial due process hearing (20 U.S.C. §§ 1221c-3, 1415[eJ­ [fl; Educ. Law§ 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5 [h]-[ l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters bet\veen parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][ 1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][l]-[2], 300.507[al(l]).

First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[ 1)[a]; 8 NYCRR 200.5Li]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training~ present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][l]-[3]; 34 CFR 300.512[a][ll-[4); 8 NYCRR 200.Sffl[J)[v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.5 IO[b][2], [c], 300.51 S[a]; 8 NYCRR 200.50][5]). A party may seek a specific extension of time of the 45-day timelinc, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.5 l5[c); 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[ 1]).

A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law§ 4404[2]; see 20 U.S.C. § 1415[g][l]; 34 CFR 300.514[b][l]; 8 NYCRR 200.S[k)). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts .m impartial review of the l HOis findings, conclusions, and decisioa and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements ofdue process; seek additional evidence if necessary; and render an independent decision hased upon the hearing record (34 CFR 300.514[b][21~ 8 NYCRR 279.t2[a]). llie SRO mUSl ensure that a. final decision is reached in the review and that o copy of the decision h: mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the JO-day tirneline, which the SRO may gr.mt in accordance with State and foderal regulations (34 CFR 300.515[b], [cj; S NYCRR 200.5fk]f2]).

The student's recommended program must also be provide(] in the least restrictive environment (LRE)(20 tJ.S.C. Section l4 l2[al(51[AJ; 34 C.F.R. Sections J00.11 [a][2U,i], 3-00.116[al(2J~ R NYCRR 200.6[a)IIJ; see Walczak. 142 F.3d at 132. The LRE is defined as "one that, to the greatest extent possible, satisfactorily educates the disabled children together with children who are not dis.ah led. in the same school the disabled child would attend if the child were not di~bled" (Carlisle Area Sch 11 Scott P., 62F.3d 520. 535 [3d Cir. 1995]). The LRE requiremt!nt is also applicable in assessing the appropriateness of uniiateml parental placements. See .f&t/_S., on beha(f',4'S_S, v. BOE of C'ity S,.:hool Di:Urfrl ofrhe City <~FYonkers. 231 F.3d.96 (2d Cir. 2000).

Application ofa Student with. a DisabilityJj.'.".Q02

IJF,CISION

The first \'iitnes.s lo testify for the district whowas­ teacher at edand was a credihle wi and a master's degree fron sped.al education pre-­ schoo rtification as a teacher covers grades K through 13 and is permanent.

Ms.-taught the 8:l+l class where the student age range was beo,vecn t f u u ~ also taught he 18:2+2 class where the student age range wac;;; between four and fivt:. For the 2016-2017 school year. she taught th~ 18:2+2 class in whic as a member.

Msllllllestified. in detail, about- progress in her class and his readiness for reguta/Piffl,:garten.

When she first rcceiv · · IEP. she noticed that there were no educational goals listed. pervisor c ith the district and was infonncd that no I . I mphasizied that, at the CPSE meeting held March 22. 20 I 7, neither the pa c else were restricted from speaking about goals or m1ything else {T- 13 ]_}.

e.stified tha.preparcd quarterly progress r - - o r _District Exhibit-- . iscusscd the reports in detail and concluded that was prugressing al' a steady pace on a par with typically developing peers and thnte goals listed were developed fru both special and general education students ((T-96-127). .

In support nf~ondusions fcrred t~nnual

Review Report. (D-6flffl that re · ·ment entitIJP,I"'"

· hich is an educational tool

. _ .. . _ nes. ·cm through each category in detail and detennined that-·as able to compete ·vcrything on the list a n ~ - ; ft.mctioning as a tyJ>kully oping student rather than a special education ~.-::rcr- 211-220). IEP.- d not have a grated setling such a.,:,- ucation~ (T- giv

,ss--examination did not s h ~ a>ny.

In fact, it seemed to second chance to reiterate ~ ~ y e a r was successful, a n - was re y for a regular kindergarten. r

The district's second witness w '.

.oiswe -q , • 0,:1 • a :n •

tes . t, at the.C.PS ee ·ng convfned onpe.c. 7, 2016, members of the Committee discus\ed the fact tha as not their recommendation and there were no academic needs ~resented to the y evaluations, meaning th~ loals were not n9cessary to address any n,eeds (T-167, 39'2). The CPSE also detenmn'ed tha-pfacement was not warranteil (T-416, 417). ded that of all'the go · ated foiai none of them were related to his ac as, and, instead, were what ..Any f o ~ old in a pre-school program _j.,ould be expected to work on these areas" (T-180).

estified that, in r ense -· to the parent's request, the district, in a letter in Feb , s ted it would add rogram at - and academic goals to his IEP "in an effort to work cooperative y parents" (T-i'mj71). oted that, "To be honest, several impartial.ue r ocess complaints were filed at th . e. In order to keep the.peace .~d focus o nd the children, you know, in an effort to focus on them and not JI this litigati placement and goals were added to the ffiP]" (T-170,

,~ 71 ). so testified th~t the parent was allowed to disctt;s.a,pinio? and --had to speak:11!

..'"' f-167,168). When the parent was ~exammed later on in this case mitted as allowed to state pinion and that '"nobod stopped·••ving

(T-512, . .

atever input ~he felt , wR:essa,y rcgar~ing-P , The only witness to testify for the parent w~s the parent 1111111111: - recounted the steps.took i.siing the stipulation of setciemcnt and t h ~ u ~ process

. tices. estified, at length, that she objected to the 18:2+2 pl3;e~ment for argued t . was too restrictive f ~ d violated the stipulation of - which called for an 18:1+2 placem. . . .

I must dismiss the par:nt's allegat.ions t~.18:2+2 was too rj!strictive on two

,bases. First, the parent did not raise this issue inlll!IFtie process co.laint notice, and there was no discussion at the hearing to ~1low the parent to amend u.rocess complaint notice. Second, even if the parent's objections were inc ed i ue process complaint notice, the parent offered no reasonable explanation fo sition.

Whena.as asked why having two certified teachers in the room woul . e the settin,-;"restrictive. replied, •<1 feel having anymore adults in the class makes it mo~e restrictive" (~-4 , 466). Wh~~as asked to explai-tatement,.

testified, '"I can only tell you my opmi..,-(T-466).

The parent alleges, without any evidence, t h a - a s not made . te/sufficient/meaningful progress. However, die testimony o as well as the evidence reveal the opposite. The district did p - FAPE. By the end of the 2016-2017 school year, eved all his goals (D-2) had a.successful year and was ready fof a 1regular ergru;ten class. , ,.i

I n ~ e process complaint notice, the pm: quests 637 hours of · compensa"' special education (D-4, Exhibit A). ffers no evidence or testimony to support that request. There is a total lack 6f proof p a r e n t - provided with FAPE and th.e parent failed to prove that. entitled to any "c . satory special education services."

Even if any of IEPs contained a procedural defect, as the parent claims, such alleged procedur uacies did not impede- righ{..to FAPE, cause a deprivation of educational benefits or significantly ~ h e parent's opportµnity to participate in the decision-making process regarding the provision of a F APE to the student which the parent is required to prove in order to show the student was denied a FAPE. 20 U.S.C.partl415(f)(3)(ii); 34 CFR part 300.513(a)(2); 8 NYCRRpart 20O.sot4)(ii). ; ,. •

There are ample legal grounds (as listed earlier in this decision in the section entitled "'Overview") for concluding, based on the testimony and evidence in this case, that- was provided with l,'free, appropriate public education (F APE). Two purposes ofIDEA are: (1) to ensure tliat students with disabilities have available to them a FAPE that Cll\Phasizes special education and related services designed to meet their unique needs ~d prepare them for further education, employment, and independent living; and (2) to ensure tflat the rights of students with disabilities and parents of such students are protected. See 20 U.S. part l400(d)(l)(A)-(B). 1

To this end, 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 develop~d by its CSE/CPSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Board of £due. v. Rowley, U.S. 176. 206-207 (1982). "An appropriate educational program therefore begins with an IEP that accurately reflects the results of evaluation to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services." ;,See Application t l' of the Dept of Educ, Appeal No. 07-018 (2007). The annual g·oals and short-term objectives should be consistent with. and relate to. the identified needs and abilities of the student. See Application ofa Student with a Disability, Appeal No. 14-078' (2015) (citing 20 U.S.C. section 20 U.S.C. section 1414{d)(1 )(A)(i)(II); 34 CFR section 300.320(a)(2)(i); 8 NYCRR section 200.4{d)(2)(iii). ; f,

The Second Circuit has explained that not all procedural errors render an IEP legally inadequate under the IDEA See A.C v. Bd OfEduc. of the Chappaqua Cent Sch. Dist, 553 F.3d 165, 172 (2d Cir. 2009). Under the IDEA, if procedural iiolations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: impeded the student's ~ight to a FAPE; (b) significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits to the student. See 20 U.S.C. Section 141 S(f)(3)€(ii); 34 CFR Section 300.513(a)(2); 8'NYCRR section 200.50)(4)(ii) . ., CONCLUSroN

Based on the evidence and testimony presi!nted during these hearings, it is clear that-as provided with a free, appropriate public education, and, contrary to the parent's allegations, that education was appropriate/sufficient/meaningful.

The parent's request for compensatory special education services is denied. Further, a payment of$26, 000 is denied since an impartial hearing officer is not authorized to order such payments. Other allegations made by the parent are without merit or are irrelevant.

SO ORDERED THIS THIRTIETH DAY OF JULY 2018

Arthur J. Venezia, Ed.D.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shalt be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www. sro. nysed