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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 27, 2012
November 8, 2012
November 15, 2012
December 21, 2012
January 22, 2013
Actual Record Closed Date: January 27, 2013
Hearing Officer: James McKeever, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 27, 2012
Advocate, — Student
L.C.S.W., Social Worker, Committee on Special Education — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 11, 2012
Advocate — Student
DR., District Representative — DOE
NAMES AND TITLES OFPERSONS WHO APPEARED ON NOVEMBER 8, 2012
Advocate (Via Telephone) — Student
None — DOE
NAMES AND TITLES OFPERSONS WHO APPEARED ON DECEMER 21, 2012
Attorney — Student
DR, District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 22, 2013
Attorney — Student
DR, District Representative — DOE
PROCDURAL BACKGROUND
On August 27, 2012, the parent filed the within Due Process Complaint (DPC) alleging that the Student was denied a free and appropriate public education (FAPE) by the Department of Education (DOE) because the recommended placement at the for the 2012-2013 school year was inappropriate for the Student.
A pendency hearing was held on September 27, 2012. On October 7, 2012, a pendency Order was issued on consent for the Student’s continued placement at A Prehearing Conference was held on November 8, 2012.
On November 13, 2012, the parent 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 the student was currently placed in a full-time educational facility and receiving special education services under pendency. I was also advised that there were 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 December13, 2012.
On December 12, 2012, the parent requested a 30-day extension of the compliance date based on the availability of their witnesses. I determined that although there been a prior request for an extension, a second extension would have no impact on the student’s educational interest because student was currently placed in a full-time educational facility and receiving special education services under pendency. I was also advised that there were 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 12, 2013.
On January 14, 2013, the parent with the consent of the school district requested a 30-day extension of the compliance date based on the availability of their witnesses. I determined that although there had been prior requests for an extension, another extension would have no impact on the student’s educational interest because student was currently placed in a full-time educational facility and receiving special education services under pendency. I was also advised that there were 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 13, 2012.
FINDINGS OF FACT
Based upon the evidence adduced at the Due Process Hearing, I make the following findings of fact:
The Student is ” under the IDEA (Exhibits A). The Student’s classification is not at issue
During the 2011-2013 school year the Department of Education’s (DOE) Committee on Special Education (CSE) recommended placement in a , a state approved, a Non-Public School (NPS) day program.
On June 21, 2012, the DOE’s Committee on Special Education (CSE) held an IEP meeting and recommended that the Student remain in the day program in class at a NPS and referred the matter to the Central Based Support Team (CBST). Thereafter, the CBST recommended that the Student be placed at for the 2012-2013 school year (Exhibit B).
During her time at , the Student made progress across all domains (Exhibit C).
At the impartial hearing, the DOE conceded that the Student was not offered a FAPE for the 2012-2013 school-year and did not present a direct case on this issue (Tr. 20).
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).
As indicated above, the DOE conceded that the Student was not offered a FAPE for the 2012-2013 school year and the DOE did not present a direct case on this issue (Tr. 20). As such, I find that the Student was not offer a FAPE for the 2012-2013 school year.
Although the parents in a Burlington/Carter case would typically bear of the burden of demonstrating the appropriateness of the unilateral placement (See, Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985] and Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]), in this case the evidence shows the Student was initially placed at by the DOE during the 2011-2012 school year, which is a state approved school. In Application of a Child with a Disability, Appeal No. 92-43 the SRO found that the parent did not need to establish 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. Here, the DOE conceded FAPE, thereby conceding that the CSE’s recommended change in placement to was inappropriate for this Student during the 2011-2012 school year. Therefore, I find that the parents’ do not bear the burden of demonstrating the appropriateness of . (Application of a Child with a Disability, Appeal No. 92-43). Nevertheless, the evidence presented at the impartial hearing confirmed that the Student made progress across all domains at during her (Exhibit C). The Equities:
Assuming arguendo, that the equities are relevant to this matter, nothing in the record suggests that the parents failed to cooperate with the CSE and the evidence demonstrates that the DOE was aware of the Student’s placement at the NPS as of the 2011-2012 school year. As such, the DOE had requisite notice of the child’s removal from public school (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]).
ORDERED that the Department of Education shall fund the Student’s placement at for the 2012-2013 school year. Dated: January 30, 2013
JAMES MCKEEVER, ESQ.
Impartial Hearing Officer
JM: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’s Exhibits:
A. IEP 6-21-12, 7/1/12, 20 pages
B. FNR 5/14/12, 1 page
C. Progress Report 2011-2012 school year, 9 pages
IHO Exhibits:
I Ext. Info
II Ext. Info
III Ext. Info