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FINDINGS OF FACT AND DECISION
Case Number: 159265
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 1, 2016
Actual Record Closed Date: March 16, 2016
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 1, 2016
Parents
Parents
Grandparent — Student
Teacher (Via Telephone) — Student
DOE Representative — DOE
(Via Telephone) — DOE
By Appointment dated December 15, 2015, the matter of came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. The matter was brought on the parent’s request for an order to add to the Student’s IEP.
The matter was extended numerous times on joint application because of, inter alia, witness availability, the complexity of the issues raised, the number of witnesses called, the briefing schedule, receipt and review of the transcripts, and the writing of the decision. No objections to the extensions were interposed by either side.
FINDINGS OF FACT
The Student is a child who is eligible for services as a student with a disability. He is diagnosed with .
He has , ,
, , and . (48; Exh. 1)
There was an IEP meeting for the Student on September 30, 2015. (25) At the meeting were representatives from the school district, the parent, and representatives from the Student’s school, which is the . (26) As a result of this IEP meeting, the team recommended an , ,
, and related services of ,
, and . (27; Exh. 1)
At the meeting, the parent sought
services for the Student. (30) The District’s response was that it would not provide the services because all services for the Student must be provided within the school day. (30-31)
The school is otherwise appropriate, but the Student has regressed as of late. He . The
Student needs additional services to
. (34-36) He does get
, but this is not enough to . (37) The would also help the Student since it could be used to . (43)
is needed. (46)
Previous , by , resulted in significant gains in , , and . He requires to continue making this progress. (Exh. A; Exh. B; Exh. C)
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of
2007.
Parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012)
The District should show that it offered parents a FAPE. A FAPE is offered to a student when (a) the District 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. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c ) caused a deprivation of educational benefits.
20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
In this matter, the record reflects that there was no full discussion of the at the September, 2015 CSE review. The District’s position was, simply, that would not provide the services without assessing whether the services were appropriate for the Students. At a CSE review, however, there should be a full discussion of all issues relating to a child’s program so that a parent is accorded a meaningful opportunity to participate. Application of the Board of Education of the Bay Shore Union Free School District, Appeal No. 00-080 (writing deficit). The District’s position suggests that the District came to a predetermined position on this issue prior to the review and was not open to the possibility of the .
Compare Application of a Child with a Disability , Appeal No. 07-078 (no predetermination where CSE considered all options).
Further, in defense of its position, the district presented only one witness, briefly, who did not know the child. The District did not meet its burden on persuasion here, and I find that it denied the Student a FAPE when it failed to recommend services on the Student’s IEP.
In regard to relief, the parent has presented a compelling witness and several documents enthusiastically expressing how the Student requires services so that . This witness, his teacher, who is extremely familiar with the child’s needs, recommended that he receive of . There is nothing in the record to suggest that these are inappropriate numbers. Accordingly, I will order that the Student’s IEP be amended so that he shall receive of . This instruction shall begin within ten calendar days of the issuance of this decision.
ORDER
As a result of the above, the parents’ request for amendment of the IEP is granted.
The IEP shall be amended within ten days to require that the Student receive
.
Dated: March 31, 2016
MichaelLazan
MICHAEL LAZAN, ESQ. ML: Impartial Hearing Officer
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 Letter from , dated 9/24/15, 1 page
B Letter, dated 10/6/15, 1 page
C Letter from , dated 1/2/15, 1 page
D Rationale for , 3 pages
E progress report
DEPARTMENT OF EDUCATION
1 IEP, dated 9/30/15, 22 pages
2 FNR, dated 9/30/15, 1 page
3 Authorization of IEP change, 1 page, dated 9/30/15