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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: August 6, 2013
September 16, 2013
Actual Record Closed Date: September 30, 2013
Hearing Officer: Judith Schneider, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 6, 2013
Esq. Attorney — Parents
Mother — Parents
DOE Representative — DOE
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 16, 2013
Esq. Attorney — Parents
Mother — Parents
DOE Representative — DOE
Parent Coordinator — DOE
(via telephone)
On August 6, 2013 and September 16, 2013, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).
The parent alleged that the DOE failed to provide a FAPE for the 2013-2014 school year and sought an order enabling the student to attend a - school approved by the State Education Department as a facility with which a district may contract for the provision of special education services (“ ”). (Ex. B) [1]
Cases Presented
The DOE submitted no documentary evidence and presented only the testimony of , a parent coordinator for .
The parent submitted various documents (list appended) and presented only the testimony of the student’s mother (“the parent”.)
Findings of Fact
The proceeding was initiated at the request of the parent by correspondence dated June 28, 2013. (Ex. B) I was appointed Impartial Hearing Officer on July 3, 2013, after prior recusal/s. (T. 4) I was available to conduct a hearing within 14 days. (T.4, Ex. I) A pendency order was issued on August 21, 2013. (Ex. III) On August 6, 2013, the initial hearing was scheduled for September 16, 2013 to enable the parent to visit the placement when school commenced in September. (T. 11)
The student is years months and her disability classification is . That classification is not in dispute. She has , with significant , , and skills, and is substantially principally responding by and and . (Ex. I)
On May 28, 2013, the CSE convened to develop a “ ” IEP and recommended a Class ( ) in District (12 month program) with a full time ( , ) and related services of: (“ ”) ( x ( ) in a therapy room and x ( ) in classroom: (“ ”) x ( ) separate location ( room, stairs, playground, gym) and x ( ) in classroom; - (“ ”) x ( ) separate location ( area) and x ( ) separate location( area). (Ex. I)
By letter dated June 17, 2013, the CSE recommended a placement at t . (Ex. C)
The parent visited the proposed placement later in June, briefly toured the school and was informed that the proposed class did not then exist at the school and that there was no assurance that there would be one in September. (T. 64, 88)
The parent thereafter filed a request for an impartial hearing. (Ex. B) [2]
At the commencement of the school year, the parent sought an appointment for a visit, made an appointment for September 10th and ultimately visited the proposed site on September 11th. (T. 67) [3]
At the time of her visit a placement an class was available and there were three students then attending. (T. 69) On September 16th, there continued to be students attending. (T. 39)
The parent observed the proposed classroom and other areas, including facilities and concluded that they were not appropriate. (T. 68-76) There was no testimony contesting or rebutting her testimony and I find credible the parent’s testimony about what she observed.
In August 2013, the parent visited (“ ”), an , which she believes is appropriate and which can accept the student. (T. 78-85, Ex. H)
Conclusions of Law
The parent’s sole claims in this matter at this time are that: a) program developed by the CSE is substantively defective because insufficient was provided; b) the proposed placement is not appropriate in view of this student’s significant needs and the fact that the program is new at this school, the facilities are insufficient and the placement appears to be “a work in progress.” (T. 26, 97)
With regard to the claim that the IEP was substantively defective, I note that although it has the burden of establishing that it provided a FAPE, the DOE presented no testimony or evidence in support of the services provided. N.Y. Education Law §4404[1][c]. However, the sole claim here concerns an alleged inadequate degree of service. The IEP is comprehensive and includes in addition to the 12 month program, a full time and an array of related services as well as goals in all areas and a specification of management needs and there is no claim that it is otherwise not appropriate. I conclude that a lack of sufficient does not alone establish that this overall program was not appropriate and that the IEP provided a FAPE. See, R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 188 (2d Cir. 2012) citing T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 417-19 (2d Cir 2009)
However, “[w]hen an IEP adequately provides a FAPE, it is within the discretion of the IHO … to amend it to include omitted services.” R.E., 694 F.3d at 188. In the instant matter, although the IEP states that the student has made progress in meeting her goals, no evidence to support that has been submitted. (Exs. H, A, D, G) The evidence shows that the student continues to be , relying upon and . (Ex. H) The student received four sessions of previously and the CSE has reduced the total number of sessions to three with one provided . (Ex. H) I conclude that there has been a decrease in services without a demonstration by testimony or evidence as to why it is necessary. In these circumstances and in view of the student’s needs and her increasing language requirement due to age, issuance of an RSA for additional services will be ordered.
With regard to the parent’s claims concerning the proposed placement, I note that the DOE has established that a placement was available and that there has been no claim, and indeed no evidence, that the related services mandated cannot be provided in the placement. Although the parent raised, for the first time at the hearing, the issue of appropriate toilet facilities, I note that her information came from an unidentified person who was not staff designated to show the facilities. (T. 92-93) The parent describes what she believes is a barebones facility for both class and related services but it is the beginning of the school year and is new for that site. Further, even given continuation in the manner described by the parent, there is nothing to suggest that the student’s services could not be appropriately delivered. I also note that with regard to the implementation of a student’s IEP, a denial of a FAPE occurs only if the district deviates from a substantial or significant provision of the student’s IEP in a material way and thereby precludes the student from an opportunity to receive educational benefits. See R.C. v. Byram Hills Sch. Dist., 2012 U.S. District LEXIS 165878 at *37 (U.S.D.C. N.Y.); See also Appeal No. 12-098 and the cases cited therein.
Although the parent understandably, prefers Squire, based upon her observations and communications there, it is well settled, that a district is not required to provide what a loving parent would.
Therefore, I find that the DOE has established that it provided a program and placement reasonably calculated to enable the student to make meaningful educational gains. Accordingly, the parent’s request for a Nickerson letter is denied.
Order
The student is entitled to receive an additional ( ) minute sessions per week of / during her attendance in the program. The DOE shall immediately issue RSAs for that service.
Dated: October 15, 2013
______________________________
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
DOCUMENTS ENTERED INTO THE RECORD
A IEP, 8/2/12, Parent
B Impartial Hearing Request, 8/28/13, Parent
C FNR, 6/7/13, 1 pg. Parent
D , 3/15/13, 4 pgs. Parent
E , 5/6/13, 5 pgs. Parent
F , 5/20/13, 5 pgs. Parent
G ., 5/28/13, 5 pgs. Parent
H , 8/21/13, 1 pg. Parent
I IEP, 5/28/13, 14 pgs. Parent
I 7/17/13 Impartial Hearing Officer
II Compliance date extension documents Impartial Hearing Officer
III Interim Order on Pendency Impartial Hearing Officer
IV DOE Motion to Dismiss Impartial Hearing Officer
V Parent Response to Motion to Dismiss Impartial Hearing Officer
Footnotes
[1] The initial compliance date in this matter was September 10, 2013. The parties moved to extend the compliance date to enable parental consideration of the proposed placement when the program commenced in September, 2013, a subsequent hearing and the issuance of a decision after consideration of the transcript. In considering and granting the request, I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. (T. 12, Ex. II) The current compliance date is November 9, 2013.The record closed on September 30, 2013, upon my receipt of the final transcript.
[2] The DOE filed a motion to dismiss the complaint in its entirety on ripeness grounds which was submitted to me subsequent to the August 6 hearing regarding pendency. The parent thereafter responded. (T. 12-13, Exs. IV, V) Although unnecessary in view of the findings herein, I note that the motion lacked merit in view of the parent’s challenge to the IEP.
[3] To the extent that the testimony concerning the arranging of the visit was inconsistent with the testimony of the DOE’s witness, the parent coordinator, I find credible the testimony of the parent.