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FINDINGS OF FACT AND DECISION
Case Number: 151175
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: July 28, 2014
October 27, 2014
January 7, 2015
February 23, 2015
Actual Record Closed Date: March 1, 2016
Hearing Officer: Jeffrey Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 28, 2014
ESQ., Attorney — Student
District Representative, (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 27, 2014
ESQ., Attorney — Student
Parents
Parent Friend — Student
Legal Intern — Student
District Representative, — DOE
(via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 7, 2015
ESQ., Attorney — Student
Parents
District Representative, — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 23,
2015
ESQ., Attorney — Student
Parents
Parent Friend — Student
(via telephone) — Student
(via telephone) — Student
District Representative, — DOE
(via telephone) — DOE
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 student and the parents in a due process complaint notice dated July 1, 2014. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) shall be ordered to reimburse the parent, and/or directly pay for, costs associated with (“ ”) services and for the 2014/15 school year (Exs. P-A, P-B).[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)-(l).
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. §§ 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 §§ 200.5(j)(3)(v), (vii), (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 me to hear this matter on July 2, 2014. See 8 NYCRR § 200.5(j)(3)(i). The parent filed an amended due process complaint on July 17, 2014 (Ex.
P-B). See 8 NYCRR § 200.5(i)(7). At a hearing held on July 28, 2014, the parent moved for an interim order on pendency (R. 8-9; Exs. IHO-I at 3, P-A at 2, P-B at 2). The DOE did not oppose the parents’ motion (R. 9; Ex. IHO-I at 3). In an Interim Order on Pendency dated August 14, 2014, I directed the DOE to maintain the student at the (“ ”) at public expense, effective July 1, 2014, until such time as the due process proceedings in this matter were concluded.
Additionally, I directed the DOE to fund, via an RSA, the student’s receipt of ( ) hours per week of . Lastly, I directed the DOE to fund, via an RSA, the student’s receipt of ( ) hours per week of (Ex. IHO-I at 7). 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). Hearings on the merits of this matter were thereafter held on: October 27, 2014; January 7, 2015; and
February 23, 2015.2 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 § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the July 17, 2014 amended due process complaint, the student was and has been diagnosed with an (R. 209;
Exs. SD-1 at 1, P-A at 2, P-B at 2, P-E at 1). For the 2014/15 school year, the student attended , which has been approved by the Commissioner of Education as a nonpublic school with which public school districts may contract to instruct students with disabilities (Exs. P-A at 2, P-B at 2). See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with is not in dispute in this hearing (Exs. SD-1 at 1, P-A at 2, P-B at 2, P-C at 3, P-E at 1). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).3
The parent testified that following his diagnosis with , the student received and attended a at (R. 209). The student has attended
, including ,
, and (R. 210-211). The student has attended
since the 2013/14 school year, in accordance with the DOE’s IEP recommendations (R. 211-212). In addition to his school-based programming, the student has also been receiving (R. 212)
At a meeting held on June 3, 2014, the CSE convened to develop an IEP for the 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 in order 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. 12-13, 82-84, 93, 255-256; Exs. IHO-II - IHO-XIX). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
.
student for the 2014/15 school year. The CSE recommended that the student receive the majority of his instruction in an in a New York State approved nonpublic school on a basis. The CSE also recommended that the student receive related services of: ; , times per week for minutes per session; and
, times per month (R. 44-45; Exs. SD-1 at 10-11, 13-14,
SD-3 at 2, P-E at 11-12, 14-16).
In a letter dated June 18, 2014, the parent stated that the student requires , including and , in addition to his program at . The parent stated that she would seek reimbursement from the DOE for those (Exs. SD-9, P-I). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The parent’s claim for reimbursement and/or direct payment for for the student for the 2014/15 school year should be denied. The DOE offered the student a free appropriate public education in the least restrictive environment. The student did not require in order to learn. The relevant equities also mitigate against a reimbursement/direct payment award (R. 34-35).
B. The Parent
The DOE should be ordered to reimburse the parents, and/or directly pay, for delivered to the student during the 2014/15 school year. In addition to his program at , the student required , which the CSE failed to recommend or even consider for him. The evidence entered in the hearing record demonstrates that hours per week of , hours per week of , and ( ) were necessary and appropriate for him (R. 35-37; Exs. P-A, P-B).
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); B oard 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); R.E. v. New Y ork City D ep'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 Y ork City D ep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Paw ling 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.'" W alczak 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. M amaroneck 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.
Carm el 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)(ii); 34 C.F.R.
§ 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); 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), 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)(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." 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."
W alczak, 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 W alczak, 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; W alczak, 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 W alczak, 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 M rs. 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)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v.
A rlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); W alczak, 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); Patsk in v. B oard of Educ., 583 F. Supp. 2d
422, 428 (W.D.N.Y. 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); Tarlow e 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)(i), (2)(i)(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).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim.
See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where B urlington/Carter factors are satisfied. M r. A . v.
New Y ork City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W . v.
New Y ork City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v.
Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).
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 Y ork City D ep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Proposed Public Program
As noted earlier, the IDEA directs that, in general, an impartial hearing officer’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)(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.” See Rowley, 458 U.S. at 203.
The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” M rs. B.
v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at
192.
The evidence contained in the hearing record reflects that the June 2014 CSE recommended that the student receive the majority of his instruction in a in a school on a basis (Ex. SD-1 at 10). During the 2014/15 school year, the student attended the recommended program at (Exs. IHO-I, P-A at 1, P-B at 1). There is no dispute between the parties that was appropriate (R. 72, 226). What the parties contest is whether the student required additional services to address
(R. 34-36).
C. Mootness - Pendency Services
It is well settled that the dispute between the parties must at all stages be "real and live," and not "academic," or it risks becoming moot. See Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 (2d Cir. 2005); Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008); J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 (W.D.N.Y. Sept. 30, 2008); see also Chenier v. Richard W ., 82 N.Y.2d 830, 832 (1993); Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 (1980). Mootness may be raised at any stage of litigation. See In re Kurtzman, 194 F.3d 54, 58 (2d Cir. 1999).
Administrative decisions rendered in cases that concern such issues that arise out of school years since expired may no longer appropriately address the current needs of the student. See Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 (5th Cir.
1989); M.S. v. New Y ork C ity Dept. of Educ., 734 F. Supp. 2d 271, 280-81 (E.D.N.Y.
2010). In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted. See V .M. v. No. Colonie Cent. Sch. Dist., 2013 WL 3187069, at *13-*15 (N.D.N.Y. June 20, 2013); A pplication of a Student with a Disability (New York City Dep't of Educ.), Appeal No. 12-205 at 8 (SRO July 31, 2014).
In an Interim Order on Pendency, dated August 14, 2014, I directed the DOE to authorize the student’s receipt of hours of at public expense, via RSAs, at a rate of per hour, effective July 1, 2014, until such time as the due process proceedings in this matter are completed.
Additionally, I directed the DOE to authorize the student’s receipt of hours per week of at public expense, via RSAs, at a rate of per hour, effective July 1, 2014, until such time as the due process proceedings in this matter are completed (Ex. IHO-I at 7). There is no longer any live controversy related to those pendency services. The ordered services have been delivered and the disputed school year has expired. Therefore, that component of the parent’s claim is now moot. See M.N. v. New Y ork City Dep’t of Educ., 700 F. Supp. 2d 256, 368-369 (S.D.N.Y. 2010); A pplication of the New Y ork City Dep’t of Educ., Appeal No. 13-198 at 20 (SRO Dec. 13, 2013). What remains ripe for review, however, is whether the parent should be reimbursed for additional hours per week of and additional hours per week of during the 2014/15 school year (Exs. P-A, P-B). That component of the parent’s claim is analyzed below.
D. Equitable Relief - Additional Home-Based Services
Equitable considerations are relevant to fashioning relief under the IDEA. See
Burlington, 471 U.S. at 374; Carter, 510 U.S. at 16; M.C. v. V oluntown, 226 F.3d 60, 68 (2d Cir. 2000). Courts have repeatedly recognized the "broad discretion" that hearing officers and reviewing courts must employ under the IDEA when fashioning equitable relief, and as noted recently, courts have also "repeatedly rejected invitations to restrict the scope of remedial authority provided in Section 1415(i)(2)(C)(iii)." See M r. and M rs.
A v . New Y ork City Dept. of Educ., 769 F. Supp. 2d 403, 422-23, 427-30 (S.D.N.Y.
2011); see also Forest Grove v. T.A ., 557 U.S. 230, 239-40 (2009). In exercising this broad discretion when fashioning equitable relief, hearing officers must be mindful that while parents are entitled to reimbursement for the cost of an appropriate private placement when a school district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public fisc, as such results do not achieve the purpose of the IDEA. See A pplication of the New Y ork City Dep’t of Educ., Appeal No. 13-198 at 18 (SRO Dec. 13, 2013).
The parent here asserts that the DOE denied the student a FAPE by failing to recommend, or even consider, for the student (R. 227; Exs. P-A, P-B). Several courts have held that the IDEA does not require school districts as a matter of course to design educational programs to address a student's difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the student is otherwise likely to make progress in the classroom. See Thompson R 2-J
Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 (10th Cir. 2008); Gonzalez v.
Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 (1st Cir. 2001); Devine v. Indian
River County Sch. Bd., 249 F.3d 1289, 1293 (11th Cir. 2001); J.S.K. v. Hendry
County Sch. Bd., 941 F.2d 1563, 1573 (11th Cir. 1991). Upon review of the hearing record, I find that the student's program focused on , which weighs heavily against a finding that the program was designed to address the student's educational needs in, and receive educational benefits from, his school-based program.
At the June 2014 meeting, the parent requested that the CSE recommended , in addition to the student’s placement at (R.
227). To that end, the parent provided the CSE with a report written by Mr.
, the student’s (R. 45, 222; Ex. P-J). In his report, Mr.
recommended that the student receive hours per week of , hours per week of , and , in addition to a school-based program (Ex. P-J at 4). Ms. , a who participated in the June 2014 meeting, credibly testified that the CSE considered, but declined, a recommendation for for the student (R. 78-79).
In considering the appropriateness of that declination, I note that the weight of the evidence in the hearing record reveals that the purpose of the was for . Mr.
testified under oath at the hearing that the primary purposes of the student’s program was to
(R. 170-171, 188-189). In his program, the student
(R. 109-111, 113, 115, 206, 217; Exs. P-J, P-R). Mr. stated that the student required
(R. 167).
In view of the foregoing and the hearing record as a whole, the weight of the evidence does not support the conclusion that services were required under the IDEA to assist the student to benefit from special education. Accordingly, the DOE shall not be required to reimburse the parents for additional , i.e., . See Luke P., 540 F.3d at 1152-53; L.B. v.
Nebo Sch. Dist., 379 F.3d 966, 979 n.18 (10th Cir. 2004); Still v. DeBuono, 101 F.3d 888, 893 (2d Cir. 1996).
I have considered the parent’s remaining claims and have concluded that they are without merit.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
The parent’s claim for reimbursement and/or direct payment of additional hours per week of and additional hours per week of delivered to the student privately during the 2014/15 school year is denied.
Dated: March 4, 2016
JEFFREY SCHIRO, ESQ.
Impartial Hearing Officer JS:
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 the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be 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. The petition for review shall be served upon the school district 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 the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 7/1/14, 5 pgs.
B. Amended Due Process Complaint Notice/Impartial Hearing Request, 7/17/14, 7
pgs.
C. Findings of Fact & Decision, IHO Judith Schneider, 1/26/10, 12 pgs.
D. Order on Pendency, IHO James McKeever, 7/30/13, 7 pgs.
E. Individualized Education Program (IEP), 6/3/14, 17 pgs.
F. Draft Individualized Education Program (IEP), undated, 14 pgs.
G. [Reserved]
H. Letter to (CSE) from parent, 6/30/14, 3 pgs.
I. Letter to (CSE) from parent, 6/18/14, 2 pgs.
J. Report, 5/30/14, 4 pgs.
K. Resume - , undated, 2 pgs.
L. Resume - , undated, 2 pgs.
M. Resume - , undated, 2 pgs.
N. Resume - , undated, 2 pgs.
O. Provider Invoices & Proof of Payments, 7/2014 - 9/2014, 24 pgs.
P. Provider Invoices & Proof of Payments, 10/2014 - 11/2014 , 16 pgs.
Q. Provider Invoices & Proof of Payments, 12/2014, 8 pgs.
R. Report, 1/29/15, 5 pgs.
DEPARTMENT OF EDUCATION
1. Individualized Education Program (IEP), 6/3/14, 16 pgs.
2. Notice of IEP Meeting, 5/16/14, 3 pgs.
3. IEP Meeting Minutes, 6/3/14, 2 pgs.
4. [Reserved]
5. [Reserved]
6. ( ), 6/3/14, 6 pgs.
7. ( ), 6/3/14, 5 pgs.
8. Prior Written Notice (Notice of Recommendation), 6/27/14, 4 pgs.
9. Ten Day Notice Letter, 6/18/14, 1 pg.
10. Annual Summary of Progress, 2013/14, 7 pgs.
11. Day School Acceptance Letter, 7/17/13, 1 pg.
12. SESIS Events Log, 7/6/11 - 7/14/14, 9 pgs.
IMPARTIAL HEARING OFFICER
I. Interim Order on Pendency, 8/14/14, 9 pgs.
II. Confirmation of Extension, 9/29/14, 1 pg.
III. Confirmation of Extension, 10/30/14, 1 pg.
IV. Confirmation of Extension, 12/1/14, 1 pg.
V. Confirmation of Extension, 12/24/14, 1 pg.
VI. Confirmation of Extension, 1/30/15, 1 pg.
VII. Confirmation of Extension, 2/23/15, 1 pg.
VIII. Confirmation of Extension, 4/1/15, 1 pg.
IX. Confirmation of Extension, 4/27/15, 1 pg.
X. Confirmation of Extension, 6/1/15, 1 pg.
XI. Confirmation of Extension, 7/1/15, 1 pg.
XII. Confirmation of Extension, 7/31/15, 1 pg.
XIII. Confirmation of Extension, 8/24/15, 1 pg.
XIV. Confirmation of Extension, 9/30/15, 1 pg.
XV. Confirmation of Extension, 10/30/15, 1 pg.
XVI. Confirmation of Extension, 11/30/15, 1 pg.
XVII. Confirmation of Extension, 12/30/15, 1 pg.
XVIII. Confirmation of Extension, 1/29/16, 1 pg.
XIX. Confirmation of Extension, 3/2/16, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[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) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.