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CASE NUMBER: 589790 - NYC: 240799
FINDINGS OF FACT AND DECISION
Student’s Name: REDACTED
Date of Birth: REDACTED
Hearing Requested By: Parent
Dates of Hearing: December 2, 2022, March 2, 2023 and March 15, 2023 Record Closed Date: March 15, 2023
Hearing Officer: Audrey Daniel, Esq.
Names and Titles of Persons who appeared at the December 2, 2022 Hearing For the REDACTED None
For the Parents:
REDACTED, Esq., Attorney for Parent
Names and Titles of Persons who appeared at the March 2, 2023 Hearing For the REDACTED None
For the Parents:
REDACTED, Esq., Attorney for Parent
Names and Titles of Persons who appeared at the March 15, 2023 Hearing For the REDACTED None
For the Parents:
REDACTED, Esq., Attorney for Parent
REDACTED, Parent Parent
REDACTED, SEIT, REDACTED
I. Introduction
and Procedural History On November 4, 2022, 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 pendency hearing was held on December 2, 2022, status conferences were held on January 17, 2023 and February 8, 2023. Hearings were held on December 2, 2022, March 2, 2023, and March 15, 2023. Parents were represented by REDACTED, Esq., and the REDACTED (“REDACTED”) did not appear. During the course of the proceedings, Parent 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 March 15, 2023.
II. Background
Parent filed a due process complaint on or about October 25, 2022 alleging a denial of a Free and Appropriate Public Education for the 2022-2023 school year, and requesting relief. (Exh. A). The REDACTED did not appear, submit evidence, or provide witness testimony. Parent provided witness testimony by affidavit, and both witnesses were available for cross-examination on the final day of hearing. Parent requested, during the final day of hearing, a finding of a denial of FAPE for the 2022-2023 school year, as well as the continuation of pendency services for the entire 2022-2023 school year. (Tr. 33).
III. Discussion
FINDINGS OF FACT AND DECISION
Student has been receiving services pursuant to a pendency order dated December 2, 2022. The order, based on a previous Findings of Fact and Decision, provides for fifteen hours per week of Special Education Itinerant Teacher (“SEIT”) services, as well as occupational therapy, 3 x 30 minutes per week, pursuant to a CPSE IEP. (Exh. B). As the REDACTED did not put on a case, there is no issue regarding the provision of FAPE for the relevant school years and the IEP’s will not be discussed or reviewed.
Student has been diagnosed with ADHD and exhibits oppositional and defiant behaviors. A neuropsychological evaluation was conducted in May of 2022 and the evaluator recommended continued fifteen hours per week SEIT services. (Exh. J and Exh. K).
The uncontroverted occupational therapy evaluation conducted in August of 2022 recommended three thirty-minute periods per week of occupational therapy. (Exh. K).
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, No. 15-827, 2017 WL 1066260, 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 appear, provide testimony, submit evidence, or otherwise argue that FAPE was provided. Further, Parent’s uncontroverted testimony is that the REDACTED failed to hold an IEP or school placement by the start of the school year. (Exh. L, page 2). Thus, the REDACTED has not met its burden of proof and Parent is entitled to relief.
RELIEF REQUESTED
CONTINUATION OF PENDENCY SERVICES AT AN ENHANCED RATE
Parent requests, as relief, the continuation of Student’s pendency program for the entirety of the 2022-2023 school year, and the services be paid at an enhanced rate. (Exh. L, page 3). These services have been provided pursuant to a pendency order dated December 2, 2022, based on an earlier Findings of Fact and Decision which found these services appropriate. Parent’s submitted evaluations recommending these services. (Exh. J and Exh. K). The uncontroverted testimony of Parent’s witnesses shows that Student continues to need the requested services, as she continues to struggle with significant academic, attentional, social and classroom functioning delays. (Exh. M, page 2). Student has made progress as a result of these services. (Exh. L and Exh. M). Therefore, Parent has shown that she is entitled to the requested relief and it shall be so ordered.
IV. Order
IT IS THEREFORE ORDERED THAT:
1. The REDACTED failed to provide Student a Free and Appropriate Public Education for 2022-2023 school year;
2. The REDACTED shall provide Student with Student’s pendency program for the entire 2022-2023 school year including fifteen hours per week of 1:1 Special Education Instruction and Individual Occupational Therapy, three times per week for thirty minutes. These services shall be provided by a provider of Parent’s choice at a rate not to exceed reasonable market rate.
Dated: March 24, 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
A. Parent Exhibit Description Date Pages Due Process Complaint 10/25/2022 14 pages
B. /1/2022 20 pages
C. Continuum of Special Education Services Summer 2020 23 pages
D. Website for Procedural Safeguards Notice Undated 6 pages
E. REDACTED Procedural Safeguards July 2017 51 pages
F. REDACTED Occupational Therapy Evaluation 1/29/2021 10 pages
G. REDACTED Evaluation 2/22/2023 3 pages
H. REDACTED Speech and Language Evaluation 7/5/2022 17 pages
I. Website for English Language Arts Learning Standards Undated 4 pages
J. REDACTED, Neuropsychological Testing Report 5/26/2022 21 pages
K. REDACTED Occupational Therapy Evaluation 8/9/2022 13 pages
L. Statement of REDACTED 3/15/2023 3 pages
M. Statement of REDACTED 3/15/2023 5 pages
REDACTED
None.
Impartial Hearing Officer
None.