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FINDINGS OF FACT AND DECISION
Case Number: 155591
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: July 27, 2015
September 29, 2015
November 3, 2015
Actual Record Closed Date: January 13, 2016
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 27, 2015
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 29 2015
Attorney — Student
Parents
Impartial Hearing Representative — DOE
Impartial Hearing Representative (Observer) — DOE
(Via telephone) — DOE
(Via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 3, 2015
Attorney — Student
Parents
(Via Telephone) — Student
District Representative — DOE
By Due Process Complaint dated May 26, 2015, the matter of came — DOE
before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities — DOE
Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.
The Complaint alleges that the Student did not receive a free appropriate public education (FAPE) through the District’s Individualized Education Program (IEP) of April 30, 2015. In particular, the Complaint alleges that the District provided a substantively inappropriate program recommendation when it recommended a classroom for the Student. The parent also contend that the Department failed to meaningfully consider the requests of the parent at the IEP meeting, and that the proposed recommendation violates the mandate to place the Student in his Least Restrictive Environment. Finally, the Complaint alleges that the IEP does not place the Student in an appropriate . As relief, the parent seeks a continuation of the Student’s program at , as well as hours per week of
.
Upon the joint application of the parties, multiple timelines extensions were granted in this case. For each such extension, I reviewed the factors in 8 NYCRR Sect.
200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District.
(IHO Exh 1)
Briefs were received by both sides in this matter. (IHO Exhs. 2, 3)
FINDINGS OF FACT
The Student is a -year-old who is eligible for services as .
Several medical professionals have recommended (“ ”)
for this Student. A , , has recommended
that the Student receive “
.” (Exh. 6) A , , has also recommended
that the Student receive . (Exh. 10) Finally, the Student’s providers, and , affirmed that the Student has been receiving benefit from . (Exh. 5)
According to the Student’s special education teacher for the 2014-2015 school year, when he is not receiving services, he has and has . allows him to . (Exh. 4) The student
has particular trouble in . (Tr. @ 72) He needs a lot of “ ” to be able to , and then . (Tr.
@ 73) services assist him in being able to .
The Student received services through the program. (Tr. @ 105) He started in September, 2013. (Tr. @
106) He attended a , without services. During this time, the Student’s “ ” (Tr. @ 106-107) He started to ”
, “ ” , and
. (Tr. @ 108) Then, he was moved to a , , still without any . (Tr. @ 109) His did not improve, and he . (Tr. @ 109)
For the 2014-2015 school year, he received services during . (Tr.
@ 105) This resulted in improvement for the Student. At least in part, helped his and , in addition to helping his . (Tr. @ 106) Additionally, has helped him to be able to ,
, and . (Tr. @ 75-81) When he did not receive the , he “ ” and did not . (Tr. @ 69-71)
At this time, he also received hours per week of services.
(Tr. @ 71, 110) This also helped him make progress in regard to his , and in his . (Tr. @ 112-113)
A evaluation conducted in January, 2015 found that the Student was , needed , and had . were in the range. His was , he had difficulty with , and . The Student’s were . (Tr. @ 23-24)
An IEP meeting in April, 2015 included his teacher as well as a , a teacher, a teacher, a , and an . The team determined that the Student should be classified as , and recommended a program for him. All the related services that were on his IEP were placed on his IEP, including , , and . (Tr. @ 26-27) A was recommended for the Student as well since his . (Tr. @ 28-29)
At the meeting, his provider stated that it was important for him to receive services. The parent and the , Ms. , also urged that the Student receive services, and .
However, the team would not consider services for the Student at the meeting. (Tr. @ 87) They also did not discuss the option of placing the student at school. (Tr. @ 88) According to the Prior Written Notice, there was no consideration of the program that he had previously received at the school, which had provided him with services. (Exhs. 14, 15) The team felt it could not recommend services for the student, as requested. (Tr. @ 34-36) The team was inclined to place him in a program because he was eligible for services as . (Tr. @ 116-117)
The Student’s IEP dated April 30, 2015 recommends a placement. The IEP credits a report indicated that the Student has experienced a decrease in as a result of provided by the and benefits from to aid his . (Exh. 3)
The Department then recommended a school, which is in . This school provides instruction with a , which incorporates “ ” of . (Tr. @ 55) When the parent viewed the school with other parents, one of the parents were told that the school does not provide services to students. (Tr. @ 89) The parent also noticed that the students in the classroom were . She felt that the student needed to be in a classroom with . in the proposed classroom
. (Tr. @ 118)
This year, the Student is again at school. (Tr. @ 81) He receives , which he needs because it helps with his . (Tr. @ 84) He receives hours of .
(Tr. @ 93)
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 IEP creates considerable reliance interests for the parents. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012)
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).
A free appropriate public education “must include ‘special education and related services' tailored to meet the unique needs of a particular child, and be ‘reasonably calculated to enable the child to receive educational benefits.’ ” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted). 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).
Courts have held that certain students with , and in particular younger students with , can be denied a FAPE if they have demonstrated good progress with , and the District eliminates that from the IEP. In
M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 251-252 (2d Cir. 2010), a kindergartner was getting hours of in . There was a significant amount of evidence in the record that this program was providing the Student with educational benefit, including reports from the and a report from a . The Student was recommended for the same program recommended here. The parents observed the placement, where it appeared that the teacher was “ ” the children and the school offered only minimal . After the administrative review, the District Court found for the parents, finding that the program and placement did not provide sufficient services. The Circuit affirmed, in a lengthy and meticulously detailed decision, indicating that courts should carefully consider issues relating to methodology. 685 F.3d at 252-253; accord R.E., 694 F.3d at 194 (there was a clear consensus that Student required continued in reports); cf. E.S. v. Katonah-Lewisboro Cent. Sch. Dist., 742 F. Supp.2d 417 (S.D.N.Y.
2010), aff’d, 487 Fed App’x 619 (2d Cir. 2012); (SDNY Chief Judge Preska held FAPE denial because District did not adequately consider student’s progress in private placement; Circuit affirmed, deeming Judge Preska’s decision well-reasoned and thorough).
This is the main concern of the parent here, who found that her child made progress only when was being provided. Moreover, this was not only her view. This was also the view of a , a , a teacher, and . Written reports were filed by each of the above providers, all consistent with testimony that the Student’s provided necessary help to aid the Student , with respect to , and with respect to
.
Nevertheless, the Department did not seriously consider this point of view, particularly with respect to services. The testimony in the hearing clearly establishes that the Department did not consider providing the Student with services at all, contending that this was in effect beyond their jurisdiction. In T.P. v.
Mamaroneck Union Free School District, 554 F.3d 247 (2d Cir. 2009), Chief Judge
Dennis Jacobs indicated that a school district must have an “open mind” as to the content of a student’s IEP at a CSE review. An SRO has also found that it is improper to eliminate services without “adequate consideration or discussion at the meeting.”
Application of a Student with a Disability, Appeal No. 08-035. It is noted that services can be required for students, particularly for students with .
Application of a Child with a Disability, Appeal No. 07-040.
Under the circumstances, I need not address the parent’s other contentions. I find that the Department denied the Student a FAPE through its IEP dated April 30, 2015.
In regard to remedy, the parent contends that application of the test set forth in School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985) and Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993) is unnecessary. The parent contends, pointing to M.N. and H.N. v. New
York City Department of Education, 700 F. Supp.2d 356 (S.D.N.Y. 2012), and Application of a Student with a Disability, Appeal No. 11-053 (2011). In M.N., there is dicta in the decision which supports the parent, but the case ended up with a ruling in favor of the school district. However, Appeal No. 11-053 does provide direct support for the parent’s position. That case, and also Application for review of a determination by a hearing officer, Appeal No. 12-062, stand for the proposition that where a parent is merely seeking to continue a public placement – rather than “unilaterally” place a student – Burlington/Carter analysis is not needed. In Appeal No. 12-062, SRO Justyn Bates merely ordered that the CSE reconvene and establish another placement for the Student.
In particular, SRO Bates found that “the district must reconvene the CSE to develop an IEP in conformity with the IDEA that meets the student's needs prior to modifying the student's educational placement.”
I agree with this analysis, and that consideration of the Burlington/Carter factors is not necessary. Here, Petitioner is seeking a public placement insofar as the school was previously recommended by the CSE. Accordingly, I will void the District’s current IEP, order the District to continue the current program as provided through pendency rights, and remand this matter to the CSE to establish an IEP in conformity with the IDEA that meets the student’s needs. It is so ordered.
Dated: January 27, 2016
MICHAEL LAZAN, ESQ.
Impartial Hearing Officer
ML:
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 5/26/15, 5 pages
B Findings of Fact and Decision Case No. 150570 dated 9/2/14, 11 pages
C IEP dated 4/30/15, 14 pages
D IEP dated 7/5/15, 14 pages
E IEP dated 2/4/15, 6 pages
F Final Notice dated 2/4/15, 1 page
G DOE Authorization Dated 2/4/15, 1 page
H Prior Written Notice dated 6/12/15, 3 pages
I dated 4/30/15, 5 pages
J dated 4/2/15, 6 pages
K evaluation dated 2/2/15, 4 pages
L dated 1/7/15, 2 pages
M dated 1/22/15, 2 pages
N Evaluation dated 4/29/15, 18 pages
O Progress Report dated 4/27/15, 2 pages
P Letter from , 1 page
Q
R Progress Report dated 1/17/15, 4 pages
S Progress Report dated 6/12/15, 2 pages
T , multiple dates, 22 pages
DEPARTMENT OF EDUCATION
1 Due Process Complaint dated 5/26/15, 5 pages
2 Response dated 6/9/15, 3 pages
3 IEP dated 4/30/15, 20 pages
4 Teacher Progress Report dated 4/30/15, 2 pages
5 Progress Report dated 4/27/15, 2 pages
6 Evaluation dated 4/9/15, 18 pages
7 dated 4/2/15, 6 pages
8 dated 1/22/15, 1/22/15, 2 pages
9 dated 1/7/15, 2 pages
10 Report dated 11/11/13, 3 pages
11 Evaluation dated 1/15, 4 pages
12 dated 4/30/15, 5 pages
13 dated 12/4/13, 6 pages
14 Prior Notice dated 5/1/15, 4 pages
15 Prior Written Notice dated 6/12/15, 5 pages
16 Annual Progress Report dated 1/11/15, 4 pages
17 Annual Progress Report dated 1/2/15, 3 pages
18 Progress Report dated 1/15/15, 3 pages
19 CSE Minutes dated 4/30/15, 5 pages 14 14
IMPARTIAL HEARING OFFICER
Exh. 1 Timelines Notices, 6 pp
Exh. 2 Brief of Parent, 12/11/15, 14 pp
Exh. 3 Brief of District, 12/11/15, 9 pp