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FINDINGS OF FACT AND DECISION
Case Number: 167672
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 22, 2017
Actual Record Closed Date: August 22, 2017
Hearing Officer: Mary Noe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 22, 2017
Attorney — Student
Parents
District Representative — DOE
Parent requested a hearing on July 21, 2017. I was appointed on July 21, 2017. I scheduled a hearing for August 22, 2017. Parent is represented by
On August 16th the district appeared by .
The compliance date was not extended by either party. An impartial hearing officer is regardless of the parties' positions, to ensure compliance with the 45-day timeline for issuing a decision (see Application of the Dep't of Educ. , Appeal No. 11-095;
Application of the Dep't of Educ. , Appeal No. 11-037; Application of a Student with a Disability , Appeal No. 08-064; Application of the Dep't of Educ., Appeal No. 08-061).
The student is ,( ) classified as and currently attends an at , in a . (T. 4, 56)
The district concedes that it has failed to provide an IEP for the 2017 – 2018 school year.
(T. 4)
Parent in their complaint request a failure to provide FAPE under IDEA, ADA, Section 504 for 2016-2017, 2017-2018; for DOE to fund a private evaluation; a reconvene of the IEP team; unlimited access to special education services of the parent’s choosing at an enhanced rate; other additional services. (Exh. A9)
The district did not put on a case. (T. 8
EXHIBITS
IEP dated April 21, 2017 recommends a class,
;
and
. The student receives a year services. (Exh. IHO II)
IEP dated March 29, 2016 recommends ,
;
and
. The student receives a year services. (Exh. L)
A Evaluation Report dated January 14, 2016 states the student achieved an . . The student did not engage with the examine, he required , displayed
, ,
, ,
.
were evident. . (Ex. G)
According to the student’s teacher, , ,
,
. .
;
. (Exh. G)
A Evaluation Scale dated January 12, 2016 indicates that in the student is in the ; in the student is in th and in the student is in the . (Exh. E)
A Evaluation date February 4, 2016 indicates the student has delays in . It is recommended the student receive . (Exh. I)
An Report dated March 13, 2016 states that the student has difficulty with . It is recommended the student continue . (Exh. C)
A dated August 5, 2014 (student was
) states the student has
.
. . He is currently
participating in a program. He will attend a program and receive
. (Exh. D)
Report dated January 8, 2016 states
that according the student who was was
; ;
. The student was currently receiving in a
. The recommendation is for a class. (Exh. K)
Spring Progress Report 2016 – 2017 states in March
. (Exh. J)
Classroom Observation dated January 26, 2016 states the student required in order to . He requires to . The had to and . He
requires . He was observed
. He requires and benefits from
. He demonstrated . He did demonstrate
. (Exh. B)
TESTIMONY
The parent testified that the student was in an program for in the 2015 – 2016 school year. (T. 33, 44) The teacher recommended a setting because . She said he worked better when . (T. 33)
The IEP team recommended an program for . (T. 33-34) At the IEP meeting the teacher recommended a . (T. 35, 47) The parent stated that the reason the IEP team did not suggest a was because there were some issues in a . (T. 47) The IEP team did not include a because they said the student was able to . (T. 49)
In , the parent felt He had an that would . (T. 35) The was not a for the student and at other times needed to help other students. (T. 36)
The student . (T. 37) The student .
(T. 38)
At some point there was a new IEP meeting and the student was moved to a setting ( ) for the next school year. (T. 39, 40)
The parent testified that the student is “
” (T. 41)
. (T. 41) There is no development. The parent believes “ ” (T. 41) There was no added
to the student’s program and no . (T. 42)
The parent stated that she agreed with the results of the Evaluation Report dated January 14, 2016. (T. 52) The parent agreed with the Social
History Update dated January 12, 2016. (T. 53) The report is inaccurate only as to the student’s ability to , that's not true. (T. 53) The parent was partially in agreement with the report of the evaluation. (T. 56, 58)
The parent was in agreement with the 2016-2017 IEP as to services, services, and . (T. 57-58) She was in agreement with the program but requested a and wanted an evaluation. (T. 62)
As to the 2017-2018 IEP the parent agreed with the services.
(T. 63) She wanted more . (T. 63) She requested
more services. (T. 64)
DISCUSSION
At the impartial hearing, the district conceded that it did not offer the student a free appropriate public education (FAPE) for the 2017-18 school year. The district did not call any witnesses.
IEP 2016-2017 School Year
I find the IEP for the school year 2016 -2017 did not provide the student with a
FAPE.
I find the IEP for the school year 2017 – 2018 did not provide the student with a
FAPE..
Independent Evaluation
The parent’s complaint requests an order directing the DOE to fund a evaluation by a provider of the parent’s choosing. (Exh. A)
The parent has a right to obtain an independent educational evaluation [(IEE)] at public expense" (8 NYCRR 200.5[g][1]; see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502[b]; see also K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan.
13, 2012] [noting that "a prerequisite for an IEE [at public expense] is a disagreement with a specific evaluation conducted by the district"]; R.L. v. Plainville Bd. of Educ., 363
F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated the parent's claim for an IEE at public expense]).
The parent testified that she agreed with the results of the Evaluations dated January 14, 2016. (T. 52)
Therefore there is no legal basis to award an independent evaluation.
Private School Placement
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]. Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S.
v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement...'" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd.
of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 [1982] and identifying exceptions]).
No testimony or evidence was submitted to substantiate the request for private school placement.
Special Education Services
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir.
2015]; Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see Newington, 546 F.3d at 123.
According to the evaluations, .
(Exhs. B, C, E, G, I, J, K, M) There was no evidence or testimony provided for special education services outside of the classroom. The parent testified that the student is in need of a , which would be appropriate but the parent’s complaint does not make that request. (T. 42 Exh. A)
Additional Services Determined by the Hearing Officer
No evidence or testimony was provided for additional services. The parent testified that she wanted “more.” (T. 63, 64) However, the statute ensures an "appropriate" education, "not 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]
IT IS HEREBY ORDERED
The Parent’s request is denied. The District must conduct an IEP meeting within 30 days of this decision. Dated: September 22, 2017
MARY NOE, ESQ.
Impartial Hearing Officer MN:
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.
Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html.
DOCUMENTATION ENTERED INTO THE RECORD
STUDENT
A Due process request, 6/21/17, ten pages
B Classroom observation, 1/26/16, one page
C report, 3/13/16, two pages
D , 8/5/14, two pages
E , 1/12/16, one page
F Early education progress report, 6/19/15, one page
G evaluation report, 1/14/16, two pages
H Social history update, 1/12/16, three pages
I evaluation, 2/4/16, four pages
J spring progress report, 2016/2017, five pages
K Early childhood special education report, 1/8/16, four pages
L IEP, 3/29/16, 14 pages
M fall progress report, 2016/2017, four pages
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I Pre-hearing order, unidentified date, four pages
II IEP, 4/21/17, 16 pages