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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: August 20, 2012
November 8, 2012
January 2, 2013
February 19, 2013
March 4, 2013
Record Close Date: March 11, 2013
Hearing Officer: James McKeever, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 20, 2012
Parents
Grandparent — Student
Grandparen — Student
CSE-7 Chairperson's Designee — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 8, 2012
Advocate — Student
Parents
Grandparent — Student
CSE 7 Chairperson's Designee — DOE
IEP Coordinator (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 2, 2013
Advocate — Student
Parents
Grandparent — Student
Program Specialist, Woods Services (via telephone) — Student
CSE Chairperson's Designee — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 19, 2013
Advocate — Student
Parents
Grandparent — Student
No Appearances — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 4, 2013
Advocate — Student
Parents
Grandparent — Student
Psychologist (via telephone) — Student
Teacher (via telephone) — Student
Program Specialist (via telephone) — Student
CSE Chairperson's Designee — DOE
PROCDURAL BACKGROUND
The parent filed an initial Due Process Complaint (“DPC”) on July 16, 2012. After a series of recusals, I was appointed to this matter on August 7, 2012. On August 20, 2012 a pendency hearing was held and a pendency Order was issued on consent with respect to the Student’s continued placement at the . The resolution period expired on August 15, 2012.
On August 20, 2012, the Department of Education (“DOE”) requested a 30-day extension of the compliance 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 fulltime educational facility and receiving 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 10, 2012.
On October 9, 2012, the parent and the DOE requested a 30-day extension of the compliance date based on the availability of their witnesses. I determined that although there had been a prior request for an extension, another extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving 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 9, 2012.
On November 9, 2012, the parent and the DOE requested a 30-day extension of the compliance date based on the availability of their witnesses due to Hurricane Sandy. The parent lives in . I determined that although there had been a prior requests for an extension, another extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving 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 December 9, 2012
On December 17, 2012, the parent and the DOE requested a 30-day extension of the compliance date based on the availability of their witnesses. I determined that although there had been a prior requests for an extension, another extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving 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 January 9, 2012
On January 8, 2013 the parent and the DOE requested a 30-day extension of the compliance date based on the availability of their witnesses. I determined that although there had been a prior requests for an extension, another extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving 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 February 8, 2013.
On February 5, 2013 the parent requested a 30-day extension of the compliance date in order for the parent to submit a post hearing progress report. I determined that although there had been a prior requests for an extension, another extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving 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 March 10, 2013.
On March 1, 2013 the parent requested a 30-day extension of the compliance date in order for the parent to submit a post hearing progress report. I determined that although there had been a prior requests for an extension, another extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving 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 April 3, 2013.
FINDINGS OF FACT
Based upon the evidence adduced at the Due Process Hearing, I make the following findings of fact:
The Student is a (See, Individualized Education Plan (“IEP”), dated June 13, 2012 at Exhibit C). The Student (Exhibit C). The Student presently functions at the pre-kindergarten level in math and reading (Exhibit C).
On May 25, 2012 the DOE’s Central Based Support Team (“CBST”) secured a placement for the Student at is approximately 4 hours away from the parent’s home in Staten Island (Tr.27, 116 ).
On June 13, 2012, the DOE’s Committee of Special Education (“CSE”) generated an IEP that recommended placement in a special class in a residential school with related services of therapy for the 2012-2013 school year(Exhibit C).
The Student has attended the , which is a residential school located in the State of , for the last five years as a residential student. The Student was initially placed at by the DOE (Tr.105, 113). The is approximately hours from the parent’s home (Tr. 122). The parent and the Student , either at School or at the parent’s home in (Tr.123).
The Student has made progress at the (Tr.81). The Student does not transition well and cannot tolerate traveling for a long distance in a car (Tr.78, 121-122 ).
The witness who testified on behalf of the DOE at the impartial hearing was a the IEP Coordinator from (Tr.8). accepts students with a number of disabilities, including autism, cerebral palsy, multiply disabled students, and students disturbance (Tr.9). provides , , (Tr. 10). The school has two programs with staffing ratios of a 6-1-3 or 8-1-
2. Student’s reside in a residential style home in groups of 8 to 10 students (Tr.10). utilizes Applied Behavior Analysis (“ABA”) by board certified instructors (Tr.12). conducted a classroom observation of the Student for approximately 20 minutes, which included 5 minutes in the hallway when the Student was transistioning back into the classroom and for 15 minutes from outside the classroom (Tr.32). The observation took place after the IEP meeting of June 16, 2012 (Tr.34). The IEP Coordinator from would be appropriate for the Student (Tr.13). If the Student attended , the Student would be placed in a class with seven other students and receive ABA therapy throughout the school day (Tr.13-14). Student’s walk to and from school in clear weather. Otherwise students are bussed to and from school (Tr.15). The campus in not fenced in (Tr. 22). The Student is identified as a “runner” because he frequently attempts to elope from the classroom (Tr.22).
The IEP, dated June 13, 2012, indicates that the IEP Coordinator from attended the Student’s IEP meeting. However, the IEP Coordinator had no recollection doing so and did not speak to the development and/or appropriateness of the Student’s IEP (Tr. 18). Additionally, the IEP Coordinator from testified that the Student would be placed in the “GEMS” program. However, the participants at the IEP meeting were not from the GEMS program (Tr.32). No other witness testified as to the appropriateness of the Student’s IEP and/or his placement at for the 2012-2013 school year (See record generally). Credibility Findings
I find that all of the witnesses’ who testified at the impartial hearing, testified in a credible manner.
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 Free Appropriate Public Education (“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 20607; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
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 parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra, 427 F.3d at 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148).
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.
Here, the witness presented by the DOE was the IEP Coordinator at the proposed private school. The witness testified that although the IEP indicated that he attended the Student’s IEP meeting in June of 2012, the witness had no recollection of the IEP meeting and did not testify as to the appropriateness of the Student’s IEP (Tr.18). Additionally, although the witness testified that the he believed was an appropriate placement for the Student, the evidence shows that his assessment was only based on a 15-20 minute observation of the Student in the hallway of the Student’s current placement. Significantly, no evidence was presented by the DOE to demonstrate that the Student could transition to and/or whether , was appropriate for the Student. Further, the evidence shows that the proposed placement would double the amount of traveling time for the Student, which is a significant impediment to the parent and Student visits because the evidence shows that the Student can barely tolerate the current two hour commute to the (Tr. 122-123). Finally, the DOE did not offer any testimony with respect to the appropriateness of the Student’s IEP. Accordingly, based on these facts, I find that 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. Placement at the :
As indicated above, the Student has attended for the last 5 school years. The Student was initially placed at by the DOE. The is a New York State approved nonpublic school. The parent requests that the Student remain at for the 2012-2013 school year (Exhibit A). Significantly, no evidence was offered to support DOE’s position that the change in the Student’s placement from was appropriate other than the testimony of the IEP Coordinator from who did not offer any testimony about the appropriateness of the Student’s IEP. Since is a state approved school, the parent does not have the burden of proving the appropriateness of . As indicated above, the Student was initially placed at by the DOE. In Application of a Child with a Disability, Appeal No. 92-43 the State Review Office (“SRO”) found that the parent did not need to establish that a 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 school after they demonstrated that the DOE’s recommended change in placement was inappropriate. Here, the evidence shows that although the DOE recommended a change in the Student’s placement from the , the DOE did not present a witness defend the IEP and/or the change in placement. As such, since it is undisputed that the is a New York state approved NPS, and because the DOE previously funded the Student’s placement at the , I find that the parents does not bear the burden of demonstrating the appropriateness of the (Application of a Child with a Disability, Appeal No. 92-43 ). Accordingly, the parents’ request for an Order directing the DOE to fund the Student’s placement at the for the 2012-2013 school year is granted.
ORDERED
The Department of Education shall fund the Student’s placement at for the 2012-2013 school year. Dated: March 19, 2013
___________________________________
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 JANUARY 2, 2013
PARENT
A Hearing Request, dated 6/27/12, 2 pgs. B Letter, dated 6/22/12, 1 pg. C IEP, dated 6/13/12, 11 pgs. D IEP, dated 3/13/12, 10 pgs. E IEP, dated 4/12/11, 19 pgs. F IEP, dated 1/27/12, 18 pgs. G IEP Meeting Notice, dated 5/29/12, 1 pg. H Memo from the CBST, dated 5/25/12, 1 pg. I Letter ,dated 4/11/12, 1 pg. J Map of School's, January2012, 1 pg. K Map of Grounds, Undated, 1 pg. L Direction Map - Parents' Home, dated 10/17/12, 2 pgs. M Direction Map from Parents' - , dated 10/10/12, 3 pgs. N Brochure from , Summer 2012, 16 pgs. O Music Therapy Article from , undated, 2 pgs. P Brochure from , 5undated, 1 pg. Q Brochure from , Undated, 4 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
1- Ext. Info 8/14/12, 1 page 2- Ext. Info 9/19/12, 1 page 3- Ext. Info 11/8/12, 1 page 4- Ext. Info 11/28/12, 1 page 5- Ext. Info 1/3/13, 1 page 6- Ext. Info 2/6/13, 1 page 7- Ext. Info 3/1/13, 1 page