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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: March 23, 2012
Record Close Date: April 4, 2012
Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 23, 2012
Parents
Parents
No Appearances — DOE
PROCEDURAL BACKGROUND
The parents filed the due process complaint on January 27, 2012. The resolution period expired on February 28, 2012. A Prehearing Conference was held of March 12, 2012. The Hearing was held on March 23, 2012. Parent’s Position:
The parent requests an Order directing the Department Of Education (“DOE”) to add one session per week of (“ ”) to the Student’s Individualized Education Program (“IEP”) for 30 minutes, , for the remainder of this school year and during the summer of 2012. The parent also requests an evaluation and that the Committee on Special Education (“CSE”) add a ”) to the student’s IEP. DOE’s Position:
The DOE did not appear at the impartial hearing, nor the DOE file a Response to the parent’s due process request.
FINDINGS OF FACT
Based upon the evidence adduced at the Due Process Hearing, I make the following findings of fact:
The Student is classified as “ ” based on an ”) diagnosis (Tr.13) and currently attends ”) (Exhibit A).
The DOE conducted a evaluation in January 2012, which found that the Student did not require ”) services. The parent disagrees with the results of the DOE evaluation and requests a new evaluation (Tr.14).
The Student is . For these reasons, the parent is requesting that a be added to the Student’s IEP (Tr. 15).
An , dated December 12, 2011, recommended that the Student received services 1 time per week for 30 minutes, , for the remainder of this school year and during the summer of 2012 (Exhibit B). Credibility Findings:
I find that the parent testified at the impartial hearing testified in a credible manner. Statutory Framework:
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]).
CONCLUSIONS OF LAW:
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). As indicated above, the DOE failed to appear at the impartial hearing and failed to serve a Response to the parent’s DPC. Additionally, as of the date of this decision, the DOE has failed to explain and/or move to vacate their default. Accordingly, I find that the DOE has failed to meet its burden of demonstrating that FAPE was offered to the Student for the school year at issue. Independent Education Evaluation (“IEE”):
When a parent requests an IEE at public expense, the school district must, without unnecessary delay, either ensure an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. If the impartial hearing officer finds that a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. § 300.502; 8 NYCRR 200.5[g]; Application of the Bd. of Educ., Appeal No. 05-009; Application of a Child with a Disability, Appeal No. 04-082; Application of a Child with a Disability, Appeal No. 04-027). In this case, the parent requests an IEE for a evaluation. The DOE failed to respond to the parent’s DPC and failed to initiate a hearing to show that its evaluation is appropriate. As such, the parent has prevailed on this claim. Services:
An evaluation, dated December 12, 2011, recommended that the Student received services 1 time per week for the remainder of this school year and during the summer of 2012 (Exhibit B). The DOE failed to offer any evidence to the contrary. As such, the parent’s request for services is granted. BIP:
The Student is (Tr. 15). The parent is requesting that a be added to the Student’s IEP in order to address the (Tr. 15). Again, as the DOE failed to offer any evidence to the contrary, I find that the parent’s request that a be added to the Student’s IEP in order to address the Student’s is appropriate.
ORDERED
The Department of Education shall provide the Student with one session per week of , for the remainder of this school year and during the summer of 2012. These services shall begin within 14 days from the date of this decision.
The Department of Education shall fund an evaluation for the Student’ within 30 days from the date of the decision.
The Department of Education shall reconvene an IEP meeting within 14 days from the date of this Decision to develop a ”) for the Student and add the to the student’s IEP. Dated: April 9, 2012
________________________________
Impartial Hearing Officer
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 MARCH 23, 2012
PARENT
A Demand for Due Process Complaint, 1-11-12, 2 pp. B Evaluation, 12-13-11, 5 pp.
DEPARTMENT OF EDUCATION
None