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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: July 30, 2012
Record Close Date: August 2, 2012
Hearing Officer: Gary D. Peters, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 30, 2012
Parents
Department Designee — DOE
INTRODUCTION
On July 30, 2012 I conducted hearings pursuant to the Individual with Disability Education Act (“IDEA”) 20 U.S.C. 1415 (f)(3) regarding impartial hearing case number , The hearing was commenced at the impartial hearing office, 131 Livingston Street, Brooklyn New York. The parents submitted a request for impartial hearing June 19, 2012.
The Department of Education, (hereinafter referred to as “the Department”) was represented by its chairperson designee, Ms. and the parent was pro se. A list of witnesses who testified and documents received into evidence are attached hereto.
BACKGROUND
The student is currently a ”. On March 24, 2012, the Committee on Special Education, hereinafter referred to as the Committee on Special Education (“CSE”) conducted an individualized education program (“IEP”) meeting for the 2012/2013 school year. The child, hereinafter referred to as (“ ”) was recommended to attend a class in a community school the in an integrated co teaching classroom with related services as follows: ; recommendations to participate in state and local assessments with accommodations.
THE PARENT’S POSTION
The Parent maintained that she attended the IEP meeting and received a final notice of recommendation for placement in a community school, , Additionally, she visited the recommended placement and accepted same. Thereafter, the placement was rescinded for “unknown reasons”, wherein recommendation was made for another school, which she rejected. She is seeking placement at the .
THE DEPARTMENT’ OF EDUCATION’S POSITION
The Department agreed that the child was appropriately classified and that a proper recommendation was made for the
THE PARENT’S CASE
The Parent after being duly sworn that she is the Parent of a child, herein after referred to “ ”. That he completed and she attended an IEP meeting on March 24, 2012, wherein she had an opportunity to be heard and participated at the meeting and agreed with all recommendations. The other attendees included Ms. Watson a teacher/district representative, Ms. , a social worker and Ms. , a school psychologist. Recommendations were made for an integrated co teaching class with related services for and therapy.
The parent received an offer of placement via a final notice of recommendation dated June 19, 2012 for . The Parent stated that she visited the recommended placement on June 27, 2012, signed and returned a “consent” for the placement on the same date. She was provided with information and agreed that the would be an ideal fit for her child.
She thereafter stated that the offer was “inexplicably rescinded” and that was told to visit another placement and promptly complied. She rejected same and was told that there was no integrated co teaching class at the school. Despite numerous attempts to secure an explanation, the Parent stated that she never received additional offers for placement and or explanations for the “rescission” up until the present time.
THE DEPARTMENT’S CASE
Ms. Felix on behalf of the Department agreed unequivocally that the recommended placement at the was appropriate for . Additionally, she provided a copy of a NYC Department of Education “Detail Placement Inquiry Screen”, printed on July 25, 2012 ( Exhibit #3). The document clearly indicated that the placement is to be at in District # .
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A central purpose of the IDEA is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. 1400 [d] [I] [A]: Bd. Of Educ. V. Rowley, 458 U.S.
176. 179-181,200-0l. FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 US.C. 1401 [9] [0]; 34 RCNY 300.17. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate; the services selected by the parent were appropriate and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dept of Education, 471 US. 359 [1985]; Florence County Sch. District Four v. Carter, 510 us. 7 [1985]). The first step is to determine whether the district offered to provide a FAPE to the student. FAPE is offered to a student when (a) the board of education complies with the procedural requirements in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures are reasonably calculated to enable the student to receive educational benefits (Rowley at 206-07). Under the IDEA, if a procedural violation is 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 FAPE, (b) significantly impede 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 {20U.S.c. 1415 [f][3][E] [ii] 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 educational (Application of a Child with a Disability. Appeal No. 07-008, Application of the Bd. Of Educ., Appeal No. 06-076). The IDEA "expresses a strong preference for children with disabilities to be...educated 'to the maximum extent," appropriate with their non-disabled peers." See Walczakv. Fla. Union Free Sch. Dist.; 142 F, 3d 119,122 (2nd Cir. 1998). A FAPE must be provided to a child with disabilities in the "least restrictive setting consistent with the child's needs (see Perricelli v. Carmel Cent Sch. Dist., 2007 WL 465211, at lO*S.D.N.Y. Feb. 9, 2007], citing Walczak. 14'2 F.3d 2tl22).
As stated above the Parent has requested an expedited impartial hearing for as she accepted the recommended placement offered by the Department at , was cooperative, has been unable to secure a final placement offer from the Department and that school will begin shortly.
I find that the CSE properly recommended placing the student in an ICT class, with the appropriate identified supports. The Parent was cooperative and participated fully at the IEP meeting, visited, accepted the recommended placement at
Once a Parent consents to the district’s provision of special education services, such services must be provided by the district in conformity with the student’s IEP (20 U.S.C. 1401[9][D]; 34CFR 300.17[d]. With regard to the implementation of the student’s IEP, a denial of FAPE occurs if the district deviates from significant provisions of the student’ s IEP in a material way. Significantly, the Department failed to communicate with the Parent and explain the reason for rescinding its offer of placement and subsequently recommending a placement without a ICT class. This is prejudicial, as the Parent accepted the initial recommended placement.
Accordingly, I order that the Department reinstate its placement offer to the child at . Dated: August 7, 2012
______________________________
GARY D. PETERS, ESQ.
Impartial Hearing Officer
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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 ON JULY 30, 2012
PARENT
None
DEPARTMENT OF EDUCATION
1 IEP, 3/26/12, 13 pp. 2 Final Notice of Recommendation, 6/19/12, 1 p. 3 CAPS/Screen, 7/12/12, 1 p. 4 IHO Demand Letter, 6/19/12, 2 pp.