Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 25, 2014

October 21, 2014

Actual Record Closed Date: October 28, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 25, 2014

Mother

Father

District Representative Department of Education District Representative Department of Education Interpreter

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 21, 2014

Mother

Father

District Representative Department of Education Interpreter

INTRODUCTION

On August 25, 2014 and October 21, 2014 I held an impartial hearing pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1)

regarding the education program of a school-aged child, (“ ”). The hearing commenced at respectively and was held at the Impartial Hearing Office, . A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.

BACKGROUND

is years old and attends the

(“ ”) pursuant to an Order of Pendency issued on August 28, 2014.

is transitioning from to . In their pro-se due process request for an impartial hearing (“Complaint”) the parents asserted that the placement for the 2014-2015 school year specified in the first Final Notice of Recommendation (“FNR”) did not have the program that “ ” They also alleged that they were not able to observe the school specified in the second FNR because the school was in the process of . The parents asked that the child be permitted to remain in her

,“ ,” for another year, or to be placed at (DOE Exs. 1, 2, 3).

The parents appeared at the impartial hearing held on August 25, 2014 pro-se and participated with the assistance of a interpreter. It became apparent during the hearing that the parents were in fact contesting, among other things, the child ’s classification and the program recommendation and related services indicated on the Individualized Education Program (“IEP”) dated May 1, 2014, and that that they did not understand that they were required to allege these specific issues in their Complaint. The parents stated on the record the issues that they wished to raise at the impartial hearing and they were given permission to amend the request, which they did with the assistance of the interpreter who attended the hearing. The parents filed the Amended Complaint on August 25, 2014, after the hearing on that date was completed. In the Amended Complaint the parents alleged that they disagreed with the May 1, 2014 IEP and with ’s classification, stating that the psychologist on the IEP team did not evaluate

(IHO Ex. 1).

I issued an Order of Pendency dated August 28, 2014 directing that remain at until the issues raised in the Amended Complaint are resolved. On October 21, 2014 I held a hearing on the Amended Request.

I was appointed as the Impartial Hearing Officer on July 21, 2014. The original compliance date was September 22, 2014. A hearing was held on August 25, 2014.

After the parents filed an Amended Complaint following the hearing the new compliance date was November 10, 2014. A hearing was held on October 21, 2014.

FINDINGS OF FACT

appeared for the Department of Education at the October 21, 2014 hearing and did not present any witnesses. The parents appeared at the hearing pro-se and were assisted by a interpreter. The parents explained that they did not believe the child’s classification or recommended placement were appropriate for The parents stated that they were in the process of having evaluated and that the family has already met with a psychologist and a social worker at the for

Progress. The evaluation itself is scheduled for November 24, 2014 (Hearing: 50-52; HO

Ex. I).

Ms. provided the parents with the name, address and phone and fax numbers of the Committee on Special Education (CSE) Chairperson to whom they must send a copy of the independent evaluation after it is completed. That person is

, ,

(Hearing; 52).

CONCLUSIONS OF LAW AND DISCUSSION

The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to is to ensure that students with disabilities have available to them a free and appropriate education (“FAPE”) in the least restrictive environment (“LRE”). 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written individualized education program. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.13; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.347; Rowley at 181-182. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit a student to benefit educationally from that instruction.” Rowley, 458 U. S. at 203.

The Department of Education did not present any evidence or testimony to support the classification indicated, or educational program recommended, in the child’s most recent IEP dated May 1, 2014. Nor did it present any evidence or testimony to support the placement recommended in the most recent FNR dated July 1, 2014 (DOE Exs. 3, 4). Thus, I find that the Department of Education did not meet its burden of demonstrating that it provided with a FAPE for the 2014-2015 school year.

In order to provide with an appropriate classification, IEP and placement to address her unique special education needs, I am remanding the case to the Committee on Special Education (“CSE”) to hold a new IEP meeting for after the parents provide the CSE with a written copy of the independent evaluation. Within five days of the receipt of the written independent evaluation the CSE is to arrange for an IEP meeting to be held on the first date within 30 days of the receipt of the evaluation that the parents and ’s teacher and provider[s] and anyone else the parents wish to call are available to participate. All of the required members must be present. However, none of the Department of Education participants at the May 1, 2014 IEP meeting may participate in the new IEP meeting. The IEP team is to consider the results of the independent evaluation and all other information available about in order to determine the appropriate classification, program, IEP and placement for

ORDER

In light of the above findings of fact, it is hereby ordered that:

a) Within five days of the receipt of the written independent evaluation the parents are to provide a copy of that evaluation to the CSE Chairperson,

;

b) Within five days of the receipt of the written independent evaluation the CSE is to arrange for an IEP meeting to be held on the first date within 30 days of the receipt of the evaluation that the parents and ’s teacher and provider[s] and anyone else the parents wish to call are available to participate;

c) All of the required members of the IEP team must be present, none of whom participated in the May 1, 2014 IEP meeting;

d) The IEP team must determine the appropriate classification, program and placement for and it must develop an IEP that is appropriate to meet her unique educational needs, considering the independent evaluation and the input from the parents and all of the persons called by them to participate in the meeting; and

e) If the parents are not satisfied with the resulting classification, IEP, program or placement they may file an impartial hearing request to contest the foregoing.

Dated: November 13, 2014

, ESQ.

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

Department of Education:

Exhibit 1 Due Process Complaint

dated July 15, 2014, 1 page

Exhibit 2 Final Notice of Recommendation

dated July 1, 2014, 2 pages

Exhibit 3 Final Notice of Recommendation

dated June 13, 2014, 1 page

Exhibit 4 Individualized Education Program

dated May 1, 2014, 13 pages

Parent:

Exhibit A Omitted as Duplicative

Impartial Hearing Officer:

Exhibit I Amended Due Process Complaint

dated August 25, 2014, 2 pages

Exhibit II Email from ,

Department of Education

Representative, to Impartial Hearing

Officer dated August 26, 2014, 2

pages

Exhibit III Quarterly Progress Report

dated June 2014 with IEP

recommendation, 1 page