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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: September 13, 2012
October 22, 2012
Record Close Date: October 23, 2012
Hearing Officer: James McKeever, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 13, 2012
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 22, 2012
Attorney — Student
District Representative — DOE
PROCDURAL BACKGROUND
On September 13, 2012, the parent and the Department of Education (“DOE”) requested a 30-day extension of the compliance date based on the availability of their witnesses.. I determined that there had been no prior requests for an extension and that the extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving special education services under pendency. I was also advised that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted and the compliance date was extended to October 17, 2012.
On October 22, 2012, the parent a 30-day extension of the compliance date in order to receive the hearing transcripts and provide a post hearing submission of authority. The DOE consented. I determined that there had been no prior requests for an extension and that the extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving special education services under pendency. I was also advised that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted and the compliance date was extended to November 16, 2012.
FINDINGS OF FACT
Based upon the evidence adduced at the Due Process Hearing, I make the following findings of fact:
The Student is a . The Student’s current attends a 12 month residential program at ”) which was funded by the Department of Education (DOE) during the 2010-2011 school year (Exhibit C) and found appropriate by an IHO Findings of Fact and Decision dated January 25, 2012, for the 2011-2012 school year (Exhibit C). On September 13, 2012, DOE agreed that the Student’s placement at was the Student’s pendency placement for the 2012-2013 school year until a final Decision and Order was issued in this matter (Tr. ).
On October 22, 2012, the DOE conceded that the Student was not offered a free and appropriate education (“FAPE”) for the 2012-2013 school and the DOE did not offer any witnesses and/or documentary evidence. Additionally, there is no Individualized Education Plan (“IEP”) and/or Final Notice of Recommendation (“FNR”) in evidence.
CONCULSION OF LAW
Two purposes of the Individuals with Disabilities Education Act (“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 v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [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; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
The DOE bears the burden of proof in due process hearings brought under the IDEA in New York State (See, N.Y. Educ. Law Section 4404). I find that based on the following, the DOE failed to meet its burden of proof with respect to demonstrating that the Student was offered a FAPE for the 2012-2013 school year.
As indicated above, the DOE conceded that the Student was not offered a FAPE for the 2012-2013 school year and did not offer any witnesses and/or documentary evidence at the impartial hearing. Additionally, there is no IEP and/or FNR for the 20122013 school year in evidence. Nevertheless, the parties agreed that the Student’s pendency placement was and that the Student has attended for the last two school years.
Here, although the DOE contends that the Student should not attend , but another residential school in the State of New York, no evidence was offered to support DOE’s position that the change in the Student’s placement was appropriate. is a New York State approved non-public school. As such, the parents contend that they do not have the burden of proving the appropriateness . As indicated above, the student was initially placed during the 2010-2011 school year as per a Nickerson Letter and remained for the 2011-2012 school year as per the final and unappealed IHO Decision and Order directing the DOE to fund the student’s placement at for that school year (Exhibit C). In Application of a Child with a Disability, Appeal No. 92-43 the parent did not need to establish the Nickerson-funded state approved school was appropriate for the child under the Burlington criteria, after she won her argument that the proposed change to the student’s program was not appropriate for the student. In Application of a Child with a Disability, Appeal No.12-062, the SRO found that the parent did not have the prong II burden of showing the appropriateness of the student’s current placement at a New York State approved private day school after they demonstrated that the DOE’s recommended change in placement was inappropriate. Base on these cases, the parents’ assert that they do not bear the burden of establishing the appropriateness of the Student’s placement at . I agree. As indicated above, although the DOE recommended a change in placement to a residential school in the state of New York, the DOE did not defend that school and conceded FAPE for the subject school year. Accordingly, since it is undeipstedtthat is a New York state approved non-public school and because the DOE funded the Student’s placement at during the 2010-2011 school year and remained for the 2011-2012 school year as per the final and unappealed (Exhibit C). I find that the parents’ do not bear the burden of demonstrating the appropriateness of . Accordingly, the parents’ request for an Order directing the DOE to fund the Student’s placement at for the 2012-2013 school year in granted.
The Department of Education shall fund the Student’s placement at the for the 2012-2013 school year. Dated: October 31, 2012
_____________________________
JAMES MCKEEVER, ESQ.
Impartial Hearing Officer JM:dl
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 SEPTEMBER 13, 2012
PARENT
A Impartial Hearing Request, 7/1/12, 4 pages B Due Process Response, 7/11/12, 3 pages C Findings of Fact and Decision, 1/25/12, 5 pages
DEPARTMENT OF EDUCATION
None
DOCUMENTATION ENTERED INTO THE RECORD ON
PARENT
D 10 Day Notice to CSE, 6/19/12, 2 pages E FBA-BIP, 10/3/12, 8 pages F Quarterly Progress Report, 6/11/-9/11, 16 pages G Quarterly Progress Report, 9/11/-12/11, 16 pages H Quarterly Progress Report, 12/11/-3/12, 15 pages I Quarterly Progress Report, 3/12/-6/12, 17 pages J Sudent Report Card, 2011-2012, 1 page K Treatment Summary, 10/15/12, 6 pages L Class Schedule, Undated, 1 page
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I Time Extension Request, 9/13/12, 1 page II Time Extension Request, 10/22/12, 1 page