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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: October 17, 2013
Actual Record Closed Date: December 13, 2013
Hearing Officer: Brad H. Rosken, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 17, 2013
Parent Advocate — Student
Mother — Student
School (Via telephone) — Student
(Via telephone) — Student
DOE Representative — DOE
Teacher (Via telephone) — DOE
(Via telephone) — DOE
(Via telephone) — DOE
This document constitutes the Decision and Order of the undersigned, the duly — DOE
designated Impartial Hearing Officer in an Impartial Hearing brought pursuant to the — DOE
Individuals with Disabilities Education Act (IDEA) and the New York State Education laws. The New York City Department of Education will be referred to as District and the parents as Parents and the child will be referred to as Student.
PROCEDURAL POSTURE
The instant proceeding was commenced by the Parent’s due process complaint notice dated July 9, 2013. The Parents were represented by , Parent Advocate and the District was represented by its District representative . A Hearing was held on October 17, 2013. Multiple compliance date extensions were granted due to the witnesses’ availability and for the completion of an IHO (T. pgs. 194-200 and Interim Order dated October 23, 2013 annexed hereto as IHO Exhibit III). This decision follows.
PARENTS’ POSITION
The Parent’s position is that the District failed to provide a Free and Appropriate Public Education for the student for the 2013-2014 school year and that the Committee on Special Education (CSE) refer this matter to Based Support Team (CBST) for a placement in a state approved out of district placement to wit: The School. The Parent’s advocate submitted a closing brief (IHO Exhibit II).
DISTRICT’S POSITION
The District states that it provided the student with a Free and Appropriate Public Education in the Least Restrictive Environment based on its Individualized Education Program (IEP) for the school years at issue and declined to submit a closing brief and did not give a real closing statement other than to state the above (T. pgs. 196-197).
LEGAL FRAMEWORK
The "IDEA" is a comprehensive statutory framework established by Congress to aid the states in providing children with a free appropriate public education (FAPE). 20 U.S.C. § 1412(a) (I). "A [FAPE] is available to all children with disabilities residing in the state between the ages of ." 20 U.S.C. § 1412(a) (1) (A). The IDEA defines a FAPE as special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge,
(B) meet the standards of the state educational agency,
(C) include an appropriate school education
in the state involved, and
(D) are provided in conformity with the individualized education program required under §1414(d) of this title. 20 U.S.C. §1401(9)[1] A FAPE is crafted through the collaboration of the student's parents, teachers, and school district administrators and is recorded in an Individualized Education Plan (IEP) (20 U.S.C. §1414(d)). The "core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. §1401(14). In New York State, the IEP is produced by a committee on special education (CSE), whose members are appointed by the board of education or trustees of the school district (N. Y. Educ. Law §4402(1)(b)(1)(McKinney Supp. 2005)). The IDEA provides numerous procedural safeguards to protect the due process rights of children and their parents (See generally 20 U.S.C. §1415). These procedures include the opportunity for parents to obtain an of the child (20 U.S.C. §1415(b) (I)), and file a complaint with the state or local educational agency (20 U.S.C. §1415(b) (6)). Any such complaint is resolved through an "impartial due process hearing" in which parents of children have "an opportunity to present complaints with respect to any matter relating to the identification, , or educational placement of the child, or the provision of a [FAPE] to such child." See, 20 U.S.C. §1415(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. See, Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2d Cir., 2002).
FINAL DECISION
This is a difficult matter to resolve because neither side was represented by counsel and more troubling neither side seemed to grasp the basic concepts of meeting a burden of proof. Due to this fact an was ordered by myself in order to be able to properly evaluate the matter so to determine if a FAPE was provided by the District (T. pgs. 194-199). Such was the dispositive piece of evidence that swayed my opinion to rule in favor of the parent. Without such the matter could have gone either way, however, this provided a clear picture of the student’s current levels of functioning and what the appropriate educational placement for this student should look like. The deficit areas found lead to the conclusion that the District failed to provide the student a FAPE due to the fact that the student at issue was at and the specific program recommendations made look nothing like the actual placement offered by and testified to by the District’s witnesses (IHO Exhibit I). In New York State “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing. . . ” NY Educ. Law § 4404 (1)(c).
The student is currently in . The District’s first witness,
Therefore, it is hereby ORDERED that:
1) The Department of Education shall issue a Nickerson Letter and/or a referral to CBST so that a Non-Public Private School (NPS)
placement; to wit: The can be secured for this student as soon as possible and that CBST may not refuse to place the student in a non-public private school placement (NPS); to wit: The . Dated: December 19, 2013
BRAD H. ROSKEN, ESQ.
Impartial Hearing Officer
BHR:gc
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
PARENT
Exhibit Letter Brief Description of Exhibit
A Parent Request Letter dated 7/9/13 consisting of 2 pages B 2008-2009 Report Card dated April 2009 consisting of 4 pages C IEP dated 11/17/11 consisting of 12 pages D IEP dated 11/9/12 consisting of 17 pages E dated 2/12/13 consisting of 3 pages F dated 2/12/13 consisting of 3 pages G IEP dated 2/27/13 consisting of 16 pages H FNR dated 2/27/13 consisting of 2 pages I dated 5/7/13 and 5/20/13 consisting of 6 pages J dated 5/10/13 and 11/3/11 consisting of 5 pages K Printout dated 3/6/13 consisting of 1 page L The School Application dated 6/27/13 consisting of 2 pages M School Acceptance dated 7/11/13 consisting of 1 page N Letter dated 8/31/13 consisting of 1 page O dated 9/9/13 consisting of 4 pages P Certification of dated 10/10/13 consisting of 1 page
DISTRICT
Exhibit Letter Brief Description of Exhibit
1 IEP dated 2/27/13 consisting of 7 pages 2 dated 2012-2013 consisting of 1 page 3 Statement dated 10/2/13 consisting of 1 page 4 Memo for to Staff dated 10/1/13 consisting of 1 page 5 FNR dated 2/27/13 consisting of 1 page 6 Report dated 3/13/13 consisting of 1 page 7 Report dated 3/21/13 consisting of 1 page 8 Report dated 4/10/13 consisting of 1 page
IMPARTIAL HEARING OFFICERHEARING
Exhibit Letter Brief Description of Exhibit
I dated November 2013 consisting
of 22 pages II Parent’s Closing Brief dated 12/13/13 consisting of 10 pages III Interim Order dated 10/23/13 consisting of 5 pages
Footnotes
[1] "Special education" is defined by the IDEA as specially designed instruction, at no cost to parents or -- guardians, to meet the needs of a child with a , including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education.