NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBER: 000000 - NYC: 000000
FINDINGS OF FACT AND DECISION
Case Number: 201620
Student’s Name: REDACTED
Date of Birth: REDACTED
Hearing Requested By: Parent
Dates of Hearing: September 22, 2021, February 4, 2022, April 14, 2022, July 13, 2022, and February 17, 2023 Record Closed Date: February 17, 2023
Hearing Officer: Audrey Daniel, Esq.
Names and Titles of Persons who appeared at the September 22, 2021 Hearing For the REDACTED REDACTED, District Representative
For the Parents:
REDACTED, Esq., Attorney for Parent.
Names and Titles of Persons who appeared at the February 4, 2022 Hearing For the REDACTED REDACTED, District Representative
For the Parents:
REDACTED, Esq.
Names and Titles of Persons who appeared at the April 14, 2022 Hearing For the REDACTED REDACTED, District Representative
For the Parents:
REDACTED, Esq., Attorney for Parent
Names and Titles of Persons who appeared at the July 13, 2022 Hearing For the REDACTED REDACTED, District Representative
For the Parents:
REDACTED, Esq., Attorney for Parent
Names and Titles of Persons who appeared at the February 17, 2023 Hearing For the REDACTED REDACTED, Esq., District Representative
For the Parents:
REDACTED, Esq., Attorney for Parent
I. Introduction and Procedural History
On January 28, 2021, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("Student") brought by her parents (“Parent” or “Parents”). A pre-hearing conference was held on November 23, 2021, a pendency hearing was held on September 22, 2021, status conferences were held on October 12, 2022, December 9, 2022, and February 8, 2023. Hearings were held on September 6, 2022, April 14, 2022, July 13, 2022, and February 17, 2023. The REDACTED (“REDACTED”) was represented by REDACTED and REDACTED, Esq. and Parent was represented by REDACTED, Esq.. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective February 17, 2023.
II. Background
Parent filed a due process complaint on September 21, 2020, alleging a denial of a Free and Appropriate Public Education for the 2020-2021 school year, and requesting evaluations, services, and compensatory services. (Exh. A). Student has been receiving services pursuant to a pendency order dated September 22, 2021 including Special Education Itinerant Teacher/Special Education Teacher Support Services, 7.5 x 60 minutes, Speech Therapy, 2 x 45 minutes, Individual Occupational Therapy, 2 x 45 minutes, and Individual Physical Therapy, 2x45 minutes per week. Two interim orders were issued providing for independent occupational therapy, speech and language therapy and assistive technology evaluations, as well as an independent neuropsychological evaluation and implementation of the pendency order.
III. Discussion
FINDINGS OF FACT AND DECISION
FAPE
The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).
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(f)(3)(E)(i)). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit 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). In Endrew F. Douglas County School District RE-1, 580 U.S. ___, 137 S.Ct. 988 (2017), the Supreme Court held that in or order “to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "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 "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (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); Perricelli, 2007 WL 465211, at *15). 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 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), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see 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, 486 Fed. App'x 954 (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).
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 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), 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 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)) and provides for the use of appropriate special education services. (see 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).
BURDEN OF PROOF
The burden of proof is on the REDACTED to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.
The REDACTED did not submit evidence or otherwise present a case. Therefore, the REDACTED did not meet its burden of proof and Parent is entitled to relief.
RELIEF
Parent requests, as relief, an order compelling the REDACTED to continue funding Student’s pendency services until such time as an appropriate home program is developed by the Committee on Special Education. (Tr. 57). The REDACTED did not object to this request. (Tr. 57).
IV. Order
IT IS THEREFORE ORDERED THAT:
1. The REDACTED shall fund Student’s pendency services, including Special Education Itinerant Teacher/Special Education Teacher Support Services, 7.5 x 60 minutes, Speech Therapy, 2 x 45 minutes, Individual Occupational Therapy, 2 x 45 minutes, and Individual Physical Therapy, 2x45 minutes per week, until such time as an appropriate home-based program is developed by the Committee on Special Education.
2. Parent’s remaining claims are being addressed outside the hearing process.
Dated: March 1, 2023
AUDREY DANIEL, ESQ.
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 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.
EXHIBITS ADMITTED AT HEARING
None
A. Parent Impartial Hearing Request dated September 21, 2020 6 pages
B. FOFD 166563, dated Impartial Hearing Officer None. December 29, 2017 13 pages