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FINDINGS OF FACT & DECISION
Case Numbers: 166959
Student Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: April 20, 2020
Actual Record Close Date: April 21, 2020
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 20, 2020
For the Student:
Attorney (via telephone)
Parent (via telephone)
For the Department of Education:
District Representative, (via telephone)
I]. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (““IDEA’’), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the attorneys for the parent of the student in a due process complaint notice dated June 30, 2017. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) offered and/or provided the student with a free appropriate public education (“FAPE”’) during the 2017/18, 2018/19, and 2019/20 school years (Exs. P-A, IHO-I).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“JEP”), which is delegated to a local committee on special education (the “CSE”’) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(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. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R.
§§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR 8§ 200.5(h)-(1).
New York State has implemented a two-tiered system of administrative review to address disputed matters between 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 as “Ex.” student.” See 8 NYCRR § 200.5(1)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R.
§§ 300.503(a)(1)-(2), 300.507(a)(1).
An impartial hearing officer (“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 (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR 8§ 200.5(j)(3)(v), (vil), (x1). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5q)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the [HO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an THO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
Il. PROCEDURAL HISTORY
The DOE appointed me to hear this matter on July 6, 2017. See 8 NYCRR § 200.5G)(3)G). The parent moved for an interim order on pendency (Ex. P-A at 12, P-B at 3, IHO-I at 11). The DOE did not oppose the parent’s motion (Ex. P-B at 3). In an Interim Order on Pendency dated October 16, 2018, I directed the DOE to maintain the student at the , operated by , at public expense, and to provide the student with specialized transportation and after-school related services at public expense, for the duration of these proceedings (Ex. P-B at 7-8). See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). On June 27, 2019, the parent filed an amended due process complaint (Ex. P-A). See 8 NYCRR § 200.5(i)(7). A hearing on the merits of the matter was thereafter held on April 20, 2020.2 Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5G)(5)(v).
Hil. FACTUAL BACKGROUND
At the time of the June 27, 2019 due process complaint, the student was and has been diagnosed with autism and severe delays in expressive, receptive and pragmatic language skills. For all time relevant to the complaint, the student has attended the , operated by (hereinafter referred to as “4 ””), which is a nonpublic school that has been approved by the Commissioner of Education to provide special education instruction and services to students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student’s eligibility for special education and related services as a student with a speech or language impairment is not in dispute in this hearing (Exs. P-A at 2, P-G at 1, P-I at 1, P-K at 1, IHO-I). See 34 C.F.R. § 300.8(c)(11); 8 NYCRR§ 200.1(zz)(11)2
The CSE convened on February 13, 2017 to develop an IEP for the student through February 2018. The CSE recommended that the student receive the majority of his instruction in an 8:1+2 special class in a New York State approved nonpublic school on a twelve (12) month basis. The CSE also recommended that the student receive related services of: specialized transportation; individual counseling, two (2) times per week for thirty (30) minutes per session; individual occupational therapy, one time per week for thirty (30) minutes per session; monthly parent counseling and training; group (3:1) speech/language therapy, one time per week for thirty (30) minutes per session; and individual speech/language therapy, two (2) times per week for thirty (30) minutes per session. The CSE, however, did not recommend after-school speech and language therapy or after-school occupational therapy for the student (Ex. P-A at 9-10).
No IEPs were developed for the student for the 29018/19 and 2019/20 school years (Ex.
P-A at 10-11).
The parent asserts that the February 2017 IEP was deficient, given the absence of after school related services, and that the absence of IEPs during the 2018/19 and 2019/20 school years denied the student a FAPE on both procedural and substantive grounds. This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE did not offer an opening statement, present any witnesses, or offer any exhibits to demonstrate that it offered the student a FAPE for the 2017/18, 2018/19 or 2019/20 school years (R. 10).
performance. 8 NYCRR§ 200.1(zz)(11).[3]
B. The Parent
The DOE denied the student a FAPE for the 2017/18, 2018/19 and 2019/20 school years.
No IEPs were developed for the student for the 2018/19 and 2019/20 school years. While the student has been placed at since March 2017 at the mutual consent of the parties, the parent noted that it was the only State-approved nonpublic school which would accept the student. The parent states that the student has experienced regression at and requires
Applied Behavioral Analysis (“ABA’’) therapy, both in-school and after-school, along with afterschool related services in order to make meaningful progress. The parent seeks compensatory additional services to remedy the denial of FAPE (R. 10-13; Exs. P-A, P-L at 8, IHO-I).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”’) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C.
§ 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).4
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 developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.
See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); RE. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); 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).
"TA |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."". Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir.
2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007).
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 FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(Gi); 34 C-.F.R.
§ 300.513(a)(2); 8 NYCRR § 200.5G)(4)G1); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; 4.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); ELH. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), affd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).
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. See 20 U.S.C.
§ 1415(f)(3)(E)G). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See 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." Walezak, 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." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See 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." See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also 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" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192.
The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)@), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also 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, 2012 WL 4946429 (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); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y.
2008).
An appropriate educational program begins with an JEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R.
§ 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), 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 C.F.R. §§ 300.320(a)(2)(), (2)()(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Recommended Public Programs
At the hearing, the DOE declined to make any presentation that it offered the student a FAPE for the 2017/18, 2018/19, and 2019/20 school years (R. 10). The February 2017 failed to recommend after-school related services for the student, although the DOE had been ordered to provide the student with such services in prior decisions (Exs. P-A at 9-10, P-L at 4-7).[5] No
IEPs were developed for the student for the 29018/19 and 2019/20 school years (Ex. P-A at 10-11).° Accordingly, I find that the DOE has failed to meet its burden of proof and that the student was denied a FAPE for the 2017/18, 2018/19, and 2019/20 school years.
C. Compensatory Additional Services
Within the Second Circuit, compensatory education generally has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time.
See Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); but see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the See Findings of Fact & Decision (Case No. 160873) IHO Jeffrey J. Schiro (April 10, 2018) (concerning the 2016/17 school year); Findings of Fact & Decision (Case No. 151383) IHO Jeffrey J. Schiro (May 13, 2016) (concerning the 2014/15 and 2015/16 school years).
IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See Newington, 546 F.3d at 123 (stating "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education"); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one); Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction); Application of a Child with a Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).
Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., MC. v. Central Reg’ Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably (S.D.N.Y. 2010). required for the school district to rectify the problem’’). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Jd. at 526.
Having concluded that the student was denied a FAPE over multiple school years, I find that his is now entitled to compensatory additional services to remedy that denial of FAPE and shall apply a qualitative approach in fashioning a remedy for the student.
Based on the evidence contained in the hearing record, including the credible testimony (offered via affidavits) of and the parent, I find that the student requires behavior intervention services at school and at home in order to decrease maladaptive behaviors and replace them with functional behaviors. Parent counseling and training should also be provided to train the family on skills utilized in his sessions (Exs. P-G, P-L, P-M at 8).
The DOE will be directed to authorize the student’s receipt of a bank of 3,900 hours of one-to-one ABA behavior intervention services in-school.[7] The DOE will also be directed to authorize the student’s receipt of a bank of 1,300 hours of one-to-one home-based ABA behavior
intervention.®
Based on the evidence contained in the hearing record, including the credible testimony (offered via affidavits) of and the parent, I also find that after-school related services of speech/language therapy and occupational therapy were a necessary component of the student’s educational program and that he could not receive a FAPE during the 2017/18, 2018/19 and 2019/20 school years without them (Exs. P-H, P-I, P-J, P-K, P-L, P-N). According to Ms.
Madoff, the student requires intensive, highly structured language intervention. He learns best in a comfortable environment with limited distractions with consistent re-teaching of skills to support maintenance. If the student were to stop receiving after-school speech and language services, he would be at risk for regression and loss of skills (Ex. P-N at 11).
The DOE will be directed to provide the student with after-school related services through the end of the 2019/20 school year; and beyond, in light of the absence of IEPs for the student for the last two school years.
8This award has been calculated by multiplying ten (10) hours per week of service by forty-six (46) weeks for the 2017/18 school year (i.e., 460 hours), by multiplying ten (10) hours per week of service by forty-six (46) weeks for the 2018/19 school year (7.e., 460 hours), and by multiplying ten (10) hours per week of service by thirtyeight (38) weeks for the 2019/20 school yar (i.e., 380 hours).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
1. The parent’s claim that the student was denied a free appropriate public education (FAPE) for the 2017/18, 2018/19 and 2019/20 school years is SUSTAINED;
2. Through June 30, 2020, the DOE shall continue to:
(a) fund the student’s placement at the , operated by ;
(b) fund special education transportation of the student to and from ; and
(c) fund the student’s receipt of after-school speech/language therapy and after-school occupational therapy at the frequency levels set forth in the undersigned’s October 16, 2018 Interim Order on Pendency;
3. Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of an independent functional behavioral assessment and behavior intervention plan at public expense;
4. Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of the following compensatory additional services:
(a) a bank of 3,900 hours of 1:1 ABA behavior intervention services in-school, from a provider of the parent’s choosing at a reasonable market rate and
(b) a bank of 1,300 hours of 1:1 home-based ABA behavior intervention from a provider of the parent’s choosing at a reasonable market rate.
5. Given the absence of an IEP for the student for the last two school years, the DOE shall provide the student with the following program and services going forward:
(a) placement in a State-approved non-public school on a twelve (12) month basis;
(b) special education transportation to and from the student’s nonpublic school on a twelve (12) month basis;
(c) thirty (30) hours per week of 1:1 ABA/behavior intervention services push-in at the student’s nonpublic school;
(d) ten (10) hours per week of 1:1 ABA/behavior intervention services at home;
(ce) four (4) hours per week of BCBA Supervision/Program Development;
(f) one (1) hour per week of curriculum-based social skills training with neurodivergent peers (children/teens without diagnoses);
(g) three (3) hours per week of parent counseling and training;
(h) speech/language therapy after-school, two (2) times per week for thirty (30) minutes per session; and
(1) occupational therapy after-school, three (3) times per week for thirty (30) minutes per session.
Dated: May 1, 2020
/s/ Jeffrey J. Schiro
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education 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 the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties’ petition for review shall be personally served upon the Opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR § 279.2(b)).
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/filing. html.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENTS
Amended Due Process Complaint Notice/Impartial Hearing Request, 6/27/19, 15 pgs.
TAZTMSU
Interim Order on Pendency (Case No. 166959) IHO Jeffrey J. Schiro, 10/16/18, 9 pgs.
Speech/Language therapy IEP Goals, 2019, 3 pgs.
Occupational Therapy Report, 10/31/19, 3 pgs.
Consent Form w/ Fax Confirmation, 2/2019, 2 pgs.
DOE Request for Evaluation, 1/25/19, 1 pg.
Observation Report, 11/30/18, 9 pgs.
Occupational Therapy Report, 2/21/18, 2 pgs.
Speech Therapy Report, 3/1/18, 2 pgs.
Occupational Therapy Report, 3/18/19, 3 pgs.
Speech Therapy Report, 4/1/19, 2 pgs.
Affidavit of , 4/15/20, 9 pgs.
_ Affidavit of 4/14/20, 10 pgs.
_ Affidavit of 4/15/20, 12 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Due Process Complaint Notice/Impartial Hearing Request, 6/20/17, 13 pgs.
I. Order
on Consolidation (Case Nos. 166959 & 160873), 8/15/17, 4 pgs.
Footnotes
[1] ‘References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 14- 15). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[3] 3Sneech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student’s educational
[4] ‘The term “free appropriate public education” means special education and related services that — (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) ofthis title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[5] See Findings of Fact & Decision (Case No. 160873) IHO Jeffrey J. Schiro (April 10, 2018) (concerning the 2016/17 school year); Findings of Fact & Decision (Case No. 151383) IHO Jeffrey J. Schiro (M ay 13, 2016) (concerning the 2014/15 and 2015/16 school years).
[6] The IDEA and State regulations require that a school district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability. See 34 C.F.R. § 300.323(a); 8 NYCRR § 200.4(e)(1)(11); Cerra, 427 F.3d at 194; K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), affd, 530 Fed. App'x 81, 2013 WL 3814669 (2d Cir. 2013); B.P. v. New York City Dep't of Educ., 841 F. Supp.2d 605, 614 (E.D.N.Y. 2012); Tarlowe, 2008 WL 2736027, at *6). School districts must ensure that a student's IEP is in effect at the beginning of each school year and that the parents are provided with a copy. See 34 C.F.R. §§ 300.322(f), 300.323(a); 8 NYCRR § 200.4(e)(1)(11); V.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 586 (S.D.N.Y. 2013); /.G. v. Briarcliff Manor Union Free School Dist., 682 F. Supp. 2d 387, 396
[7] ’This award has been calculated by multiplying thirty (30) hours per week of service by forty-six (46) weeks for the 2017/18 school year (i.e., 1,380 hours), by multiplying thirty (30) hours per week of service by fortysix (46) weeks for the 2018/19 school year (i.e., 1,380 hours), and by multiplying thirty (30) hours per week of service by thirty-eight (38) weeks for the 2019/20 school year (i.e., 1,140 hours).
[8] NYCRR § 200.4(d)(2)(v). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 W L 3398256, at *7 (S.D.N.Y. Aug. 27, 2010). This award has been calculated by multiplying ten (10) hours per week of service by forty-six (46) weeks for the 2017/18 school year (i.e., 460 hours), by multiplying ten (10) hours per week of service by forty-six (46) weeks for the 2018/19 school year (i.e., 460 hours), and by multiplying ten (10) hours per week of service by thirty-eight (38) weeks for the 2019/20 school yar (i.e., 380 hours).