NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 157146
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: October 13, 2015
February 22, 2016
April 11, 2016
May 11, 2016
Actual Record Closed Date: May 23, 2016
Hearing Officer: Dora M. Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 13, 2015
Attorney — Student
Department of Education Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 22, 2016
ESQ., Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 11, 2016
Attorney — Student
Chairperson Designee — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 11, 2016
ESQ., Attorney — Student
Parents
(Via Telephone) — Student
DOE Representative — DOE
The parent of filed a request for an impartial hearing on September 4, 2015. I was designated to hear this matter on September 4, 2015. An impartial hearing commenced before me on October 13, 2015, on the issue of pendency.
I ordered that effective September 4, 2015, and during the pendency of all due process proceedings, the DOE shall continue to provide with all of the following services set forth in his April 1, 2015 Individualized Education Program (“IEP”) which was the last agreed upon program (Par. Ex. B):.
1. hours per week of ,
, ;
2. times per week for minute
sessions, ;
3. times per week for minute
sessions, . (IHO Ex. VII).
The compliance date was extended to November 30, 2015, based upon unavailability of witnesses. (IHO Ex. I).
An amended due process complaint was filed on November 19, 2015, challenging the student’s April 2, 2015 IESP (Individualized Education Services Program), in which the recommendation for Special Education services was reduced to periods per week of . (Par. Ex. C). There were more extensions of the compliance date (due to unavailability of witnesses and extensive testimony/issues), with a final compliance date of June 23, 2016. (IHO Ex. II, III, IV, V,
VI).
A hearing on the merits was held on February 22, April 11 and May 11, 2016. The
Department of Education (“DOE”) offered into evidence the disputed IESP, progress reports reviewed at that meeting, and the Prior Written Notice (Notice of Recommendation) which followed the disputed IESP meeting; however no witnesses were presented by the DOE. (DOE Ex 1-5; Tr. p. 15, 24-25).
The parent does not dispute that the student was parentally placed, and that she had requested an IESP. (Tr. p. 15). She claims that the disputed IESP was procedurally and substantively inappropriate, and that therefore the child is entitled to continue to receive services in accordance with the last agreed upon IEP. (Tr. pp .18-19).
, the (“ ”), testified
that he has a Master’s Degree in and is , and licensed as a . (Tr. p. 33). He testified that was consulted at the start of the school year, to put together a team of to address ’s needs, . (Tr. p. 36). Various ’s were . All of them have master’s degrees in and are certified as . (Tr. p. 38). services are billed at the rate of per hour, which is the average rate paid by New York City for those services. (Tr. pp. 53, 55).
Mr. testified that has progressed
.
are challenging for him, and
. (Tr. pp. 39, 59-60). His has improved; however he needs . , and needs . (Tr. p. 40).
Mr. testified that ’s feel that he continues to require the services he received ; to wit, hours per week of , and related services of , per week for minute sessions and , per week for minute sessions. (Tr. pp. 41-42). He requires . (Tr. p. 46). He testified that periods per week of ( ) would be insufficient to
, and . (Tr.
pp. 47-48).1 receives services , with a focus
Mr. ’ knowledge of services is based upon information on the New York City website and on . (Tr. p. 42). is provided in the form of . (Tr. p. 45).
Mrs. , ’s mother, testified that attended a
, and continues to attend there now. He received an IEP when he turned . (Tr. p. 65). Initially, he was recommended for hours of ; however the recommendation was increased to hours of on April 1, 2015. at the request of his teacher, the ( ) and Mrs. (Tr. 66-67; Par. Ex. B).
The following day, a IESP was developed, in which the recommendation was for times per week, with related services of .[3]
(DOE Ex. 1, p.9; Tr. p .69). Mrs. disagreed with the recommendation, and informed the team that the recommended hours of was not sufficient. (Tr. p. 71). No document or testimony was offered into evidence, by the DOE, to support the reduction in special education services.
Mrs. testified that during the current school year, has progressed
. She believes that he
continues to require hours per week of . (Tr. pp. 72-73). In a report dated December 7, 2015, ’s provider reported that . She reported that . She
reported that
. (Tr. p. 38; Par. Ex. F). On December 23, 2015, , his current provider, (Tr. p. 38), reported that has , and . She reported that he handout materials, which indicates that provides . (Tr. p. 60).
, ; and requires
. She recommended continuation of hours per week of services. (Par. Ex. G).
PARENT’S POSITION
In closing arguments, the parent’s attorney argued that the challenged IESP fails to address the student’s , and his needs , and that therefore the student is entitled to continue the services in the last agreed upon IEP. The parent cites Application of a Child with a Disability, Appeal No. 12-062 in support of her position.
DEPARTMENT OF EDUCATION’S POSITION
The DOE argued that the recommended IESP provided an appropriate level of service for for his year. (Tr. p. 87).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1).[4] The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S.
176, 192 [1982]. The special education provided by a district must be meaningful, and provide the opportunity for more than only trivial advancement. Walczak v. Fla Union Free School District, 142 F. 3d 119 (2d Cir. 1998). The DOE failed to present any testimony or documentary evidence to explain why the CSE recommended reducing the level of service from hours per week to sessions per week, only one day after hours per week was recommended. The record indicates that at the time of the April 2, 2015 IESP meeting, and up to the present, continues to , needs which warrant the level of support.
Accordingly, the student is entitled to continue in his current placement as an appropriate remedy. Application of a Child with a Disability, Appeal No. 12-062. I previously found that the student’s current placement (special education services)
consisted of hours per week of , ; times per
week for minute sessions, ; and times per week for minute sessions, .
I also find that the parent demonstrated the continued appropriateness of the level of services provided in the Interim Order of Pendency (and last agreed upon IEP).
Specifically, I find, based upon the testimony of Mr. and the progress reports in evidence, that continues to require hours per week of services, to support his needs. There is no dispute that he continues to require ; and the parents are not seeking more than the recommended amount of either . I also find, based upon the testimony of Mr.
, that continues to require .
ORDER
Therefore, it is hereby ordered that the DOE shall continue to provide all of the services set forth in the Interim Order of Pendency herein for the balance of the 2015- 2016 school year, as follows:
1. hours per week of , ;
2. times per week for minute sessions, ;
3. times per week for minute sessions, .
4. The foregoing services shall be provided on a . Dated: May 24, 2015
DoraM. Lassinger, Esq.
DORA M. LASSINGER, ESQ.
Impartial Hearing Officer DML:
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
PARENT
A Due Process Complaint, dated 9/4/15, 2 pages
B IEP dated 4/1/15, 20 pages
C Amended Due Process Complaint, dated 11/9/15, 3 pages
D Parent Letter, dated 8/24/15, 2 pages
E Progress Report, 1/8/15,[5] pages
F Progress Report, 12/7/15, 2 pages
G Progress Report, 12/23/15, 2 pages
H Affidavit of Service, 11/13/15, 1 page
DEPARTMENT OF EDUCATION
1 IESP, dated 4/2/15, 13 pages
2 Student Progress Reported, dated 1/8/15, 2 pages
3 Progress Report, dated 2/5/15, 3 pages
4 Progress Report, dated 1/8/15, 3 pages
Footnotes
[2] In a written report dated January 8, 2015, Ms. wrote that requires . She described his difficulty with ; and his need to . . She wrote that he . (DOE Ex. 2).
[3] The parent is not seeking services; and is requesting continuation of the related services, as recommended in the April 1, 2015 IEP. (Tr. pp. 61-62).
[4] As is parentally placed, the DOE was not obligated to make FAPE available. Application of a Student with a Disability, Appeal No. 11-020. Nevertheless, an IESP must be developed in the same manner and with the same contents as an IEP is developed; and the same due process procedures are applicable. Id. at. 18-19 (citing Chapter 378 of the Laws of 2007- Guidance on Parentally Placed Nonpublic Elementary and Secondary School students with Disabilities Pursuant to the [IDEA] 2004 and New York State (NYS) Education Law Section 3602-c).
[5] Prior Written Notice, dated 5/14/15, 3 pages IMPARTIAL HEARING OFFICER I Case Follow-up Sheet 10/13/15, 1 page II Case Follow-up Sheet 12/16/15, 1 page III Case Follow-up Sheet 2/22/16, 1 page IV Case Follow-up Sheet, 3/22/16, 1 page V Case Follow-up Sheet, 3 5/11/2016, 1 page VI Case Follow-up Sheet, 4/1/16, 1 page VII Interim Order on Pendency, 10/13/15, 6 pages