NY IHO #503956-20170922: New York...

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACT AND DECISION

Case Number: 166352

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: July 31, 2017

Actual Record Closed Date: September 8, 2017

Hearing Officer: Michal Lazan, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 31, 2017

Parents

Attorney — DOE

On June 5, 2017, the matter of was assigned to me 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 brought this complaint to challenge the Student’s IEP and program for the 2017-2018 school year. The parent contended that the Student needed to remain in the , as he had been at in previous years.

FINDINGS OF FACT

The Student is a who has been diagnosed with

in his latest IEP, which recommended a . The Student engages in which can lead to . The Student functions about the . The Studentdid in community schools in the past and requires such as to receive an appropriate placement. (Tr. @ 10-13)

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.

A FAPE is offered to a student when (a) the District 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. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect.

300.513(a)(2).

A free appropriate public education “must include ‘special education and related services' tailored to meet the unique needs of a particular child, and be ‘reasonably calculated to enable the child to receive educational benefits.’ ” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted). While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C.

Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).

In 2017, the Supreme Court addressed a split amongst the circuit courts regarding what the IDEA means when it requires school districts to provide an "appropriate" level of education to children with disabilities. Endrew F. ex rel. Joseph F. v. Douglas County School Dist. RE-I, 137 S. Ct. 988 (2017). In Endrew F., the Court held that an IEP must be "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Id. at 1001. The Court made clear that the standard is "markedly more demanding than the 'merely more than de minimis' test" applied by many courts. Id.

at 1000.

The school District presented no witnesses and no argument in support of the subject IEP in this matter. The District is therefore deemed to have denied the Student a FAPE for the 2017-2018 school year.

RELIEF

Where Districts have failed to offer students a FAPE, courts have wide discretion to insure that students receive a FAPE going forward. As the Supreme Court has stated:

The statute directs the court to “grant such relief as [it] determines is appropriate.” The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be “appropriate.” Absent other reference, the only possible interpretation is that the relief is to be “appropriate” in light of the purpose of the Act. As already noted, this is principally to provide handicapped children with “a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.

School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471

U.S. 359, 371 (1985).

Where Districts have failed to offer students a FAPE, courts have ordered that schools be paid for education. A hearing officer or a court may simply order a student to attend a particular private placement in the future if it is appropriate to insure that a Student receives a FAPE. Branham ex rel Branham v. District of Columbia, 427 F.3d 7

(D.C. Cir. 2005); Application of a Student with a Disability, Appeal No. 08-103 n.9.

However, the New York State Review Office has warned against ordering prospective placements prematurely, before all public options are exhausted. Application of a Student with a Disability, Appeal No. 15-077 (Oct. 9, 2015).

Here, the District presenting nothing to refute the contention of the parent that the Student is best placed at for the 2017-2018 school year. The documentation in the record is consistent. A report from (Exh. 4) indicated that the Student made “exceptional progress” at the school, and the progress report at Exhibit 2 indicated that the Student made steady progress at the school. While there are references in the record to the fact that the school may not be especially challenging for the Student, there are no other alternatives to this placement on this limited record. The District’s proposal, for a remand to the CSE, would not provide the Student with an immediate placement for the school year, which is now starting.

ORDER

The Student shall be placed at the for the 2017-2018 school year.

Dated: September 22, 2017

MICHAEL LAZAN, ESQ.

Impartial Hearing Officer ML:

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

STUDENT

A IEP, 7/19/16, unspecified number of pages

B Two letters, 7/17/17, 7/14/17, and email from parent, November 2012, unspecified number of pages

New York City Department of Education, Impartial Hearing Decision