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FINDINGS OF FACT AND DECISION
Case Number: 155711
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: September 22, 2015
October 14, 2015
October 26, 2015
Actual Record Closed Date: January 10, 2016
Hearing Officer: Roslyn Roth, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 22, 2015
Attorney — Student
Mother — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 14, 2015
Attorney — Student
Parents
(Via Telephone) — Student
Chairperson's designee — DOE
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 26, 2015
Attorney — Student
Parents
Chairperson's Designee — DOE
(Via Telephone) — DOE
PROCEDURAL BACKGROUND
This hearing was held pursuant to New York Education Law § 4404(1), 20 U.S.C.
§1415(f), the Individuals With Disabilities Act (“IDEA”). In accordance with the Parents’ Request for the Hearing dated June 10, 2015, I was appointed to hear this matter. Timely extensions were given. A pendency hearing took place on September 22, 2015 and the hearing was held October 14, 2015 and October 26, 2015.
The Parent was represented by counsel, the Department of Education, (“DOE”)
presented its case through a District Representative. The Department of Education, “DOE”, entered 1 exhibit and called 2 witnesses in support of its case: the student’s former teacher and the . The parent submitted 53 exhibits, “A-AAA” and called 2 witnesses in support of her position. The following witnesses testified on behalf of the parent: and the parent.
(List of Exhibits annexed hereto as “Attachment A”).
Department Of Education’s Position
The Committee on Special Education, (“CSE”) met on January 5, 2015 and classified the student with . The student attended the for the 2014- 2015 school year. The DOE asserts that the parent consented to the placement and that the placement met the student’s needs. Additionally, the DOE asserts that the basis of the parent’s due process complaint concerns the lack of implementation of a prior hearing officer’s decision which, it asserts, is outside the instant hearing officer’s jurisdiction to review.
PARENT’S POSITION
The parent is requesting services to meet the needs of the student, the parent is also seeking . However, the parent concedes that pursuant to the student’s most recent IEP, which is in evidence as Exhibit “WW”, has been recommended. Additionally, the parent is seeking compensatory services for at least hours per week and for related services not provided and required throughout the 2014/2015 school year. The parent is also seeking hours each of compensatory and services to the extent that the Department of Education did not mandate the services on his IEP during the 2014/2015 school year.
FINDINGS OF FACT
The due process complaint was filed prior to the CSE meeting of July 9, 2015. As a result the following requested relief has been mooted by the current IEP, which recommended placement of the student in the . The parent initially requested that the CSE reconvene to recommend an appropriate placement for the 2015/2016 school year in a setting based on such as the , and since it is undisputed that the child has been placed in the effective July 13, 2015 that requested relief is no longer in controversy.
The parent seeks compensatory services based on the failure of the CSE to develop an IEP for the student that included a recommendation of services and additional services. The parent further seeks an order directing that all services as mandated per part 200.13 be provided to the student.
The student is a child who is classified with . His classification is not in dispute. The accepted the student by letter dated June 26, 2015 and for the 2015-2016 school year, provided the following services to him: , , the related services of : sessions of each session, sessions and session; : sessions of each session, sessions and session; sessions of and a month of . (Ex VV) The parent asserts that the IEP is deficient because it fails to recommend services of hours per week and also, that it does not recommend sufficient services. During the pendency of these proceedings, the student has been receiving these services which were based upon a prior hearing officer’s decision. (Ex X)
The student’s testified that she provided services to the student beginning November 2012 and that the student’s services were discontinued in 2013, but that she returned to provide to the student in 2014. The witness testified that the student’s . She testified that when she first started with the student he was receiving hours of services a week, and that . However, that when
. (TR 44, 45)
The testified that the student would benefit from continued services to provide him with as well as .
(TR46) The testified that the student’s goals as written on his IEP were not appropriate as they were not written in the . (TR 51)
CONCLUSION
The student received services pursuant to a prior hearing officer’s decision, although the parent asserts that the prior hearing officer mandated that the student’s IEP be amended to recommend these services, I am without authority to enforce a prior hearing officer’s decision. The parent's contention that she was not seeking enforcement of the Hearing Officer’s decision, but rather that she was in fact asserting a new claim that the district failed to provide the student with a FAPE for the 2014-2015 school year is partially supported.
While I lack jurisdiction over the parent's claim that the district denied the student a FAPE because it did not implement the prior hearing officer’s decision, the enforcement of an impartial hearing officer's order can properly be sought by filing an administrative complaint with the Office of Special Education pursuant to applicable federal and State regulations, or in federal court under 42 U.S.C. § 1983 (see 34 C.F.R. §§ 300.151-
300.153; 8 NYCRR 200.5[l]; A.T. v. New York State Educ. Dep't, 1998 WL 765371, at *7 [E.D.N.Y. 1998]; Blazejewski v. Bd. of Educ., 560 F. Supp. 701 [W.D.N.Y. 1983];
Application of a Child with a Disability, Appeal No. 06-130; Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 99-004); see generally A.R. v. New York City Dep't of Educ., 407 F.3d 65, 78 n.13 [2d Cir. 2005]
[noting that impartial hearing officers have no enforcement mechanism of their own];
Application of a Child with a Disability, Appeal No. 04-100; Application of a Child with a Disability, Appeal No. 04-007 [recognizing that enforcement of prior orders of an impartial hearing officer and/or a State Review Officer are not properly determined by a State Review Officer]; Application of a Child Suspected of Having a Disability, Appeal No. 03-071 [holding that petitioner's enforcement remedies include judicial enforcement pursuant to CPLR Article 78, an action in federal court, or an Office of Special Education administrative complaint procedure] However, the parent’s claim that the 2014-2015 IEP failed to provide the student with FAPE was not decided by the prior hearing officer and as such, is properly before me.
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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli
v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; E.H. v. Bd. of Educ., 2008 WL 3930028 at *7 [N.D.N.Y. Aug. 21, 2008]; 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 central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE)(20 U.S.C. § 1400[d][1][A]; see Schaffer v.
Weast, 126 S.Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9] [D]; 34 C.F.R. § 300.17[d]; 4 see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 07-054; Application of the Bd. of Educ., Appeal No. 07-028; Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
The parent’s claim that the student required an and did not receive educational benefit in his placement in is persuasive, as it must be noted, that during the 2014-2015 school year, the student was receiving between hours per week of services at the time he was also attending the . The evidence established that the student requires services to benefit from education. The evidence established that the student made progress when given hours of services. (TR 141) The parent’s claim that the IEP failed to provide the student with FAPE because the student required additional services is not persuasive. The evidence supports the DOE’s position that the recommended related services were appropriate for the student and the of sessions per week were adequate to meet the student’s needs.
Furthermore, there was no evidence that the related services as recommended by the student’s 2014-2015 IEP were not provided to the student. Accordingly, the parent’s claim for compensatory related services for and is dismissed.
ORDER
The DOE’s position that the Parents’ due process complaint relative to the enforcement of a prior hearing officer’s decision dated May 28, 2014 should be dismissed
is SUSTAINED.
The January 5, 2015 IEP’s failure to provide denied the student a free and appropriate public education.
The student’s IEP for the 2015-2016 school year shall be amended to include hours per week of .
The Parents’ due process complaint is dismissed in all other respects, the Parents’ proper forum for the enforcement of the decision of the prior Hearing Officer is any State court of competent jurisdiction, a complaint to the State Department of Education or in a district court of the United States.
Dated: February 3, 2016
ROSLYN ROTH, ESQ.
Impartial Hearing Officer RR:
.
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 Report dated 4/16/12 5 pages
B CSE Report dated 1/16/13 2 pages
C Report dated 1/16/13 2 pages
D dated 1/16/13 3 pages
E Report dated 1/20/13 4 pages
F Report dated 2/1/13 4 pages
G dated 2/13, 2/20/13 6 pages
H IEP dated 4/6/13 18 pages
I Report dated 5/2/13 13 pages
J IEP dated 6/19/13 6 pages
K Letter dated 7/1/13 2 pages
L E-mail dated 7/25/13 2 pages
M dated 7/25/13 5 pages
N E-mail 1 page
O Letter dated 8/7/13 2 pages
P Letter of Referral dated 8/8/13 3 pages
Q Letter dated 8/9/13 1 page
R Intake Form dated 8/15/13 1 page
S Nickerson Letter dated 8/21/13 2 pages
T Request to Amend IEP dated 10/11/13 1 page
U Reevaluation Request dated 5/6/14 1 page
V Update dated 5/7/14 2 pages
W Consent Form dated 5/7/15 1 page
X Findings of fact and decision dated 5/28/14 11 pages
Y Related Service Progress dated June 2014 5 pages
Report
Z Report dated 6/3/14 4 pages
AA IEP dated 6/13/14 11 pages
BB Prior Written Notice dated 7/8/14 3 pages
CC Acceptance dated 10/28/14
DD Notice of Securement 1 page
EE Progress Report dated 11/14/14 5 pages
FF Progress Report dated 12/1/14 3 pages
GG dated 12/12/15 7 pages
HH IEP dated 1/5/15 20 pages
II Progress Report dated 2/12/15 3 pages
JJ Progress Report 2 pages
KK Progress Report dated 3/12/15 2 pages
LL Progress Report dated 3/30/15 1 page
MM Letter from Dr. dated 4/7/15
NN Progress Report dated 5/21/15 6 pages
OO dated 5/29/15
PP Parent Letter dated 6/4/15 1 page
QQ Meeting Notice dated 6/10/15 1 page
RR Hearing Request dated 6/10/15 9 pages
SS Summer Approval dated 6/10/15 1 page
TT Quarterly Report dated June/2015 4 pages
UU Parent Letter dated 1/23/15 1 page
VV Acceptance 2 pages
WW IEP dated 7/9/15 14 pages
XX Prior Written Notice dated 7/13 4 pages
YY Implementation of IHO
Decision dated 4/8/15 1 page
ZZ Letter dated 7/27/15 1 page
AAA Transmittal Letter dated 9/11/15 1 page
DEPARTMENT OF EDUCATION
1 Educational Report dated 6/17/15 3 pages