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FINDINGS OF FACT AND DECISION
Case Number: 9164172
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: November 16, 2016
November 21, 2016
Actual Record Closed Date: November 22, 2016
Hearing Officer: Esther Mora, Esq. Case No. 9164175
NAMES AND TITLES OF PERSONS WHO APPEARED NOVMBER 16, 2016
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED NOVMBER 21, 2016
Attorney — Student
Parents
Student
District Representative — DOE
INTRODUCTION
This expedited matter came before me pursuant to the Individuals with Disabilities Education Act. The hearing was concluded on November 22, 2016. I find that the parent is entitled to the expedited relief she seeks.
SCHOOL DISTRICT
The school district contends that it attempted to provide FAPE to the student by making four appropriate placement offers to enable the student to
.
PARENT
A who evaluated the student testified on behalf of the parent. She testified that
. He exhibits
and and requires placement in a setting in order to meet his current needs.
. He will require and related services
.
The parent testified regarding her efforts over the years to obtain appropriate services for the student. She opposed and wants the student to attend an appropriate school based setting. However, since no such setting is currently available, the parent wants the student to receive effective immediately.
APPLICABLE STANDARDS
As was recently restated in Appeal No. 16-016, two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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 (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch.
Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 Case No. 9164175
[1982]). 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 (Rowley, 458 U.S. at 206-07; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling 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'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 8 Because the district does not cross-appeal from the IHO's determinations which were adverse to the district, those determinations have become final and binding on the parties and will not be reviewed on appeal (8 NYCRR 200.5[j][5][v]; M.S. v. New York City Dep't of Educ., 2
F. Supp. 3d 311, 325 [S.D.N.Y. 2013]). 9 State regulations permit service of "a reply . . .
to any procedural defenses . . . or to any additional documentary evidence served with the answer" (8 NYCRR 279.6). While the reply was not served in a timely manner, I exercise my discretion to accept it for the limited purposes permitted by State regulations. 10 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck 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 indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (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. Carmel 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 (20 U.S.C. § 1415[f][3][E][ii]; Case No. 9164175
34 CFR 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., 394 Fed. App'x 718, 720, 2010 WL 3242234 [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, 361 Fed. App'x 156, 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, 293 Fed. App'x 20, 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 (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" (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" (Walczak, 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" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).
Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 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'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see 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" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE)
(20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent.
Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Case No. 9164175
Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 486 Fed.
App'x 954, 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]; Patskin v. Bd. of Educ., 583 F.
Supp. 2d 422, 428 [W.D.N.Y. 2008]). 11 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 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at 6 [S.D.N.Y. July 3, 2008]
[noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), 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 CFR 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 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also 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 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 (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).
FINDINGS
Having reviewed the entire record for this expedited hearing, I find that the parent is entitled to the relief she seeks on an interim basis. The student has been without any appropriate services since June 2016. Although the school district made four placement offers, I am persuaded based on the record before me in this expedited case that none were appropriate.
The school district contends that it offered FAPE and that its placement offers Case No. 9164175 were appropriate. The school district will have an opportunity to present its case during the due process hearing for Case #164172. However, in the meantime, the student is to receive the services listed below.
ORDER
The school district is to immediately fund an program consisting of:
1. ;
2.
;
3. .
4. Related services authorizations for ,
; and .
5. The services listed above are to be provided on a basis until the student begins attending an appropriate program.
6. The school district is to reimburse the parent for the full cost of the report she obtained (Exhibit S) Dated: November 29, 2016
ESTHER MORA, ESQ.
Impartial Hearing Officer EM:
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. Case No. 9164175
“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 Parent’s Due Process Complaint, 10/25/16, 8 pages
B Individualized Education Program (IEP), 5/19/16, 16 pages
C Individualized Education Program (IEP), 12/8/15, 10 pages
D ( ), 1/3/16, 8 pages
E ( ), 1/8/16, 6 pages
F by , 11/18/15, 2 pages
G Letter from , 10/23/15, 1 page
H Individualized Education Program (IEP), 6/6/15, 17 pages
I , 10/10/15, 2 pages
J , 1/4/16, 1 page
K , 11/25/15 6/2/16, 20 pages
L by ,
, undated, 1 page
M Parent’s 10-Day Notice, 7/15/16, 2 pages
N DOE Response to 10-Day Notice, 7/18/16, 1 page
O School Location Letter, 7/29/16, 2 pages
P , 3/15/16, 1 page
Q Parent Letter to , , 12/9/15, 2 pages
R Progress Report and , June, 2016,
19 pages
S Evaluation, 10/18/16, 9 pages
T Evaluation, 3/18/16, 4 pages
U Evaluation, 5/5/16, 6 pages
V , 4/4/15, 1 page
W School Location Letter, 3/17/16, 1 page
X NYC DOE Determination Letter, 8/4/16, 1 page