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FINDINGS OF FACT & DECISION
Case Number: 167569
Student Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 25, 2019
Actual Record Close Date: July 26, 2019
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 25, 2019
For the Student:
Attorney
Parent (via telephone)
Program Director, (via telephone)
For the Department of Education:
None
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 requested by the attorneys for the student and the Parent in a due process complaint notice dated July 7, 2017. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) offered the student a free appropriate public education for the 2017/18 school years (Ex. P-A).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), 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 §§ 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 student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§
‘References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.” 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trialtype 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. §§ 300.52 1(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(Vv), (vil), (xii).
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 § 200.5(j)(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 IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1).
A party aggrieved by the decision of an IHO 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).
II. PROCEDURAL HISTORY
The DOE appointed the undersigned to hear this matter on January 23, 2018 following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(1). A hearing on the merits of this matter were thereafter held on March 25, 2019.* 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 § 200.5(G)(5)(v).
Hit. FACTUAL BACKGROUND
At the time of the July 7, 2017 due process complaint, the student was and had been diagnosed with Autism Spectrum Disorder (“ASD”) and has a severe nut allergy (Exs. P-A at 2, P-G at 1). During the 2017/18 school year, the student attended instruction at the in , which has not been approved by the Commissioner of Education as a nonpublic school with which public school districts may contract to instruct 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 autism is not in dispute in this hearing. See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).[3]
Beginning at age 4, the student received fifteen (15) hours of ABA service at home. The student attended for pre-kindergarten and kindergarten. From ages 5 through 9, the student attended the and received related services of speech/language,
“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 (Exs. IHO-I — IHOXVII. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). > 4utism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise specified. 8 occupational and physical therapies (Ex. P-G at 1).
During the 2017/18 school year, the student was non-verbal and had no clear form of vocal communication. The student communicated wants and needs through non-verbal gestures, such as grabbing and pulling on an adult’s hand or arm. The student required full adult supervision at all times to prevent elopement from program. When overstimulated, the student exhibited behaviors such as kicking, scratching or dropping to the floor. When frustrated, the student would spit at others. The student required sensory breaks throughout the day to improve self-regulation (Ex. P-F at 1).
The CSE convened on April 21, 2017 to develop an IEP for the student for the 2017/18 school year. The CSE recommended that the student receive the majority of his instruction in a 6:1+1 special class in a specialized (District 75) school on a twelve (12) month basis. The CSE also recommended that the student receive related services of: individual occupational therapy, three (3) times per week for thirty (30) minutes per session; group parent counseling and training, one time per month for sixty (60) minutes per session; individual physical therapy, two (2) times per week for thirty (30) minutes per session; individual speech/language therapy, five (5) times per week for thirty (30) minutes per session; and a full-time 1:1 health paraprofessional daily (due to severe nut allergy) (Ex. P-C at 9). The parent objected to the CSE’s April 2017 IEP on both procedural and substantive grounds and this hearing ensued (Ex. P-A).
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE did not appear at the March 25, 2019 which was noticed through IHS on NYCRR§ 2001.1(zz). February 20, 2019. Prior to the March 25, 2019 hearing, the undersigned did not receive any request from the DOE to adjourn, cancel, postpone or reschedule the hearing.
B. The Parent
The DOE failed to provide the Student with a FAPE for the 2017/18 school year. During that academic year, the student received instruction at the A (a nut-free environment) and through home-based ABA services, which were paid by the DOE via pendency. The student, however, failed to receive home-based speech/language therapy services, an assistive technology evaluation, or specialized transportation. The parent seeks an Order directing the DOE to authorize the student’s receipt of compensatory speech/language therapy services, an assistive technology evaluation, and specialized transportation accommodations (R. 18-20; Ex. P-A).
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]
“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 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); MH. 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." 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; 4.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 (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. 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)(1); 34 C.F.R. § 300.513(a)(2); 8 NYCRR §
200.5(j)(4)Gi); 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; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 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), affd, 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." 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." 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)q@), 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.NLY.
2008).
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 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); 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)(4), (2)()(A); 8 NYCRR § 200.4(d)(2)(ii1), 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. Proposed Public Program
The DOE failed to establish that its recommended placement was appropriate or could meet the student’s needs. The DOE also failed to provide any basis upon which the CSE team could have reasonably relied to justify its recommendations as appropriate.
C. Compensatory Additional Services — Speech/Language Therapy
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 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., M.C. v. Central Reg’l 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 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 ce from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Jd. at 526.
As noted above, the CSE failed to develop an appropriate IEP for the student for the 2017/18 school year and the absence of an appropriate IEP denied the student a FAPE.
Therefore, I find that the student is entitled to compensatory additional services to remedy the denial of FAPE. Using the credible testimony offered by Ms. and the parent, I shall apply a qualitative approach in fashioning a remedy of additional services for the student.
In a January 13, 2015 speech/language PROMPT progress report, it was recommended that the student receive “intensive individualized speech and language therapy incorporating
PROMPT and oral motor techniques” at a frequency of three (3) times per week for sixty (60) minutes per session, in addition to school-based services, to address the student’s receptive and expressive language deficits (Ex. P-H at 9). In an Amended Findings of Fact and Decision dated May 13, 2015 (for Case No. 145904), Impartial Hearing Officer John Naun directed the DOE to provide the student with individual PROMPT-based speech and language therapy at home, three (3) times per week for sixty (60) minutes per session, in addition to school-based speech and language therapy (Ex. P-B at 14, 16). Ms. testified, however, that the student failed to receive ordered PROMPT-based speech/language therapy at home because his providers resigned for personal reasons and new providers could not be secured at the ordered rate for service (R. 29-31).
The DOE will be directed to authorize the student’s receipt of 250 hours of individual
PROMPT-based speech and language therapy (based on the recommended frequency of 3x60 for the twelve month 2017/18 school year) by a provider of the parent’s choosing, at a rate not to exceed $250 per hour.
D. Transportation
The parent seeks an Order directing the CSE to amend the student’s IEP to include special education transportation (R. 18-20, 62; Ex. P-A).
The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. See 20 U.S.C. § 1401(26); 34 C.F.R. §§ 300.34(a), (c)(16). In addition, State law defines special education as "specially designed instruction .. . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs." N.Y. Educ. Law §§ 4401(1); 4402(4)(a); see also N.Y.
Educ. Law § 4401(2); 8 NYCRR § 200.1(ww). Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 15-097 at 22 (SRO Dec.
24, 2015). Ifa CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the school district must ensure that the student receives the necessary transportation at public expense. See Transportation, 71 Fed. Reg. 46576 (Aug. 14, 2006); see also 8 NYCRR § 200.1(ww).
The State Education Department has indicated the CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that the IEP "must include specific transportation recommendations to address each of the student's needs, as appropriate." See "Special Transportation for Students with Disabilities," VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf. Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. See Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 (11" Cir. 1997); Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 (D.S.D. 1997).
When reviewing the transportation provisions made for a student by a district, the relevant question "is whether the transportation arrangements [the district] made for [the student] were appropriate to his needs." See Application of a Child with a Disability, Appeal No. 03-054.
In his May 13, 2015 Amended Decision, IHO Naun directed the DOE to provide the student with a limited time travel accommodation of not more than forty-five (45) minutes to and from school (Ex. P-B at 16). In January 2019, the student’s treating physician, recommended that the student receive nut-free special education transportation with a 1:1 paraprofessional and limited time travel (Ex. P-E). While the April 2017 CSE did not recommend special transportation for the student (Ex. P-C at 15, 17), no evidence was offered into the hearing record to substantiate that determination.
The DOE will be directed to amend the student’s IEP to recommended the student’s receipt of nut-free special education transportation with a 1:1 transportation paraprofessional and limited time travel not to exceed sixty (60) minutes.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
The Parent’s claim that the student was denied a free appropriate public education (FAPE) for the 2017/18 school years is SUSTAINED; The Parent’s claim for compensatory additional services for the student is GRANTED; and within thirty (30) days of its receipt of this Order the DOE shall authorize the student’s receipt of 250 hours of individual PROMPT-based speech and language therapy, by a provider of the parent’s choosing, at a rate not to exceed $250 per hour; Within thirty (30) days of the date of this Order, the DOE will have the student’s IEP amended to recommended nut-free special education transportation with a 1:1 transportation paraprofessional and limited time travel not to exceed sixty (60) minutes; and Within thirty (30) days of the date of this Order, the DOE will initiate an assistive technology evaluation of the student.
Dated: August 9, 2019
/s/ Jeffrey J. Schiro
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
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 the 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 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 shall 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.gov.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENTS
Due Process Complaint Notice/Impartial Hearing Request, 7/7/17, 13 pgs.
mHOmOoOW>
Amended Findings of Fact & Decision, 1/13/15, 20 pgs.
Individualized Education Program (IEP), 4/21/17, 18 pgs.
Letter from , 12/11/18, 2 pgs.
Request for Medical Accommodations, 1/12/19, 1 pg.
A Progress Report, 6/26/18, 9 pgs.
Social History Update/Psychological Evaluation, 12/11/18, 6 pgs.
Speech/Language PROMPT Progress Report, 1/13/15, 10 pgs.
Best Foot Forward - ABA Progress Report, 12/14/18, 7 pgs.
Best Foot Forward- ABA Progress Report, 5/1/18, 5 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 2/12/18, 1 pg.
II. Confirmation of Extension, 3/19/18, 1 pg.
III. Confirmation of Extension, 4/9/18, 1 pg.
IV. Confirmation of Extension, 5/7/18, 1 pg.
V. Confirmation of Extension, 6/19/18, 1 pg.
VI. ‘Confirmation of Extension, 7/18/18, 1 pg.
VI. Confirmation of Extension, 8/17/18, 1 pg.
VII. Confirmation of Extension, 9/16/18, 1 pg.
IX. Confirmation of Extension, 10/12/18, 1 pg.
X. Confirmation of Extension, 11/15/18, 1 pg.
XI. Confirmation of Extension, 12/13/18, 1 pg.
XI. Confirmation of Extension, 1/14/19, | pg.
XI. Confirmation of Extension, 2/13/19, 1 pg.
XIV. Confirmation of Extension, 3/15/19, 1 pg.
XV. Confirmation of Extension, 4/14/19, 1 pg.
XVI. Confirmation of Extension, 5/14/19, | pg.
XVII. Confirmation of Extension, 6/13/19, 1 pg. XVIII. Confirmation of Extension, 7/13/19, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[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 (Exs. IHO-I — IHO- XVII. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[3] Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise specified. 8
[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