Adam Dayan, Esq.
SRO Annuls IHO's Determination Regarding Pendency And "Comparable Service Plan"
In Appeal No 11-158, the SRO considers an appeal by the district from an IHO's pendency order, making this more of an interlocutory appeal than one based on a final order. The facts of the case are interesting. A child with autism had been attending a public school outside of New York City for the last few years. That program, which appears to have been a robust one, provided a 6:1:3 class, related services, an after-school program focused on socialization, and ample opportunities for mainstreaming (or what is described by the school as "reverse mainstreaming"). At some point around the end of the 2010-2011 school year the parent moved to New York City. A meeting was convened with the local CSE toward the end of the summer to figure out how to implement the out-of-district IEP or come up with a new IEP with comparable services which could be implemented in NYC. NYC's IEP recommended only a 6:1:1, did not recommend an after-school program, and did not address mainstreaming.
The IHO in this case determined that the NYC IEP was not comparable to the out-of-district committee's IEP and, therefore, ordered NYC to continue to fund the out-of-district placement, including related services and transportation, until such time as the merits of the case are finally decided.
On appeal, the SRO agreed that the IEP created by NYC was not comparable to the one from the out-of-district committee. The SRO held, however, that the appropriate remedy was not to fund the child's out-of-district placement, but rather to order NYC to add the missing component's to the child's NYC program - i.e., additional paraprofessional support, the opportunity for mainstreaming to the maximum extent possible, and, if available to others in the district, after-school services. In light of this decision, NYC will have to provide the additional support, but the IHO will still have to consider the merits of the due process complaint and determine what is an appropriate program for the 2011-2012 school year.