Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: October 6, 2014

Actual Record Closed Date: October 15, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 6, 2014

, Esq. Attorney Parents

Impartial Hearing Representative Department of Education

Mother

Father

Principal (via telephone) Parents

INTRODUCTION

On October 6, 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- The hearing commenced at 10:30 a.m. and was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order

BACKGROUND

. He has attended, and is currently school operated by the Department of Education.

In a letter dated August 7, 2014 the parents, by Esq., filed a due process complaint (“Complaint”) for an impartial hearing. In that request the parents alleged that the Department of Education failed with a free appropriate public education (FAPE) for the 2014-2015 school year. In particular, the parents alleged that at an impartial hearing held on April 10, 2014 the Department of Education conceded that it failed to provide with a FAPE for the 2013-2014 school year and that the hearing officer ordered the Committee on Special Education (“CSE”) to reconvene and defer the case to the Community Based Support Team (“CBST”) for a non-public school placement. However, no such placement was time the impartial hearing request was filed (DOE Ex. 2; Parents’ Exs. A, G, H, I). The CSE met on September 16, 2014 and developed an Individualized Education Program (“IEP”) recommending ”), a non-approved private school on Long Island for students on (Parents’ Ex. N). However, the Department of Education has not yet implemented that class , a program that the Department of Education agreed was inappropriate.

I was assigned as the impartial hearing officer in this case on August 8, 2014 and the compliance date is October 22, 2014. A hearing was held on October 6, 2014.

THE DEPARTMENT OF EDUCATION’S POSITION

The Department of Education was represented at . conceded that the Department of Education has not with a FAPE for the 2014-2015 school year. However, she argued that the IEP dated September 16, 2014 is not valid because the CSE that developed that IEP was not authorized on the IEP because it is a non-approved private school, (Transcript: 23).

THE PARENTS’ POSITION

The parents, represented at the hearing by their ., assert that the Department of Education failed to with a FAPE for the 2014-2015 school year and that IEP was developed and signed by the Department of Education representatives, as was the Prior Written Notice of Recommendation (“Prior Written Notice”), both recommending a and that the IEP must be implemented.

ISSUE TO BE RESOLVED AT THE IMPARTIAL HEARING

Whether the Department of Education must implement the September 16, 2014 IEP and thus pay and to and from the school each day.

FINDINGS OF FACT

mother (Transcript: 26). is the (Transcript: 42-43).

Prior to, or early in, the 2013-2014 school determined that the program . They filed a request for an impartial hearing. Following a hearing on December 3, 2013 and April 4, 2014 the impartial hearing officer assigned to the case issued a Decision and Order finding that the Pelham program was not and directing the Department of Education to, within a specified period of time, to reconvene to develop an appropriate IEP to defer the case for placement in a non-public state approved private school capable of meeting needs (Transcript: 13-14; DOE Ex. 2 at 3-4).

The CSE met and on or about May 8, 2014 the case was referred to the CBST (DOE Ex. 4; Parents’ Ex. G). The sent out at to state-approved non-public schools. The parents cooperated with the intake process including making site visits to some of those schools. However, none of those . Several of the schools needs to and determined that they could not meet those needs (Transcript: 14; Parents’ Exs. H, I).

The parents began exploring private non-approved schools, one of which was . The parents and participated in the school’s intake process. The school determined that it was able advised the parents that it but with the condition that IEP include the related service of to address his serious behavioral and emotional issues (Parents’ Ex. R). Ms. would be able to provide all of the related services on ’s IEP including . Both parents believe that will be able to needs (Transcript: 27-41, 43-53; Parents’ Ex. R).

RC’s parents asked the CSE to reconvene to consider adding a management paraprofessional On August 7, 2014 the parents filed a request for an impartial hearing alleging that the Department of Education did not provide the child with a FAPE for the 2014-2015 school year (Transcript: 14-15; Parents’ Ex. A).

An IEP meeting was held on September 16th, 2014. Both parents attended the meeting as did the and the school's IEP team coordinator (Transcript: 15; Parents’ Ex. N at 14). The members of the IEP team unanimously the services of a crisis management paraprofessional. They also unanimously was no public or approved private school had been proposed for him (Transcript: 16).

At the conclusion of the meeting the parents were given a draft of the IEP that had been discussed, developed and agreed to at the meeting. The document indicated that the implementation date would be September 2, 2014, notwithstanding the fact that the meeting was held on September 16th, 2014. When the parents reviewed that IEP they pointed out that while the IEP , it included the phrase “NYSED” approved school. The members of the IEP team unanimously agreed to amend the IEP and crossed out by hand the words “NYSED-approved” and left the unaltered on the IEP (Transcript: 16-17; Parents’ Ex. N at 9, 11, 13). signed this document in three places indicating her agreement with the CSE’s recommendation. The and the district representative at the meeting signed the document as well (Transcript: 17; Parents’ Ex. N at 9, 11, 13).

At that time the CSE also provided the parents with a Prior Written Notice letter indicating that the CSE had met and made certain recommendations regarding educational program for the coming year. The letter describes the program as a 12-month program at the , .^[1] The district representative, the that annotation to the printed letter. The Prior Written Notice letter also indicates that the two month portion of the 12 month program that takes place over the summer , and that handwritten annotation to the prior written notice letter was also signed by the district representative, the : 17-18; Parents’ Ex. O at 1). IC signed the Prior Written Notice letter agreeing to the recommendation and returned the letter to the CSE (Transcript: 18; Parents’ Ex. O at 3).

As of October 6, 2014, the date of this impartial hearing, the Department of Education had not implemented the IEP and had not or for him to have a . Nor had it arranged to provide to and as also indicated on the September 16, 2014 IEP (Transcript: 18-19). to begin attendance at the school provided that the parents be responsible for the tuition and for the additional cost of related services and the , a cost the parents stated that they cannot afford. Thus, while the parents sent the CSE Chairperson a ten-day notice letter indicating that they were going to place is currently attending the which has been determined to be inappropriate to meet his needs (Transcript: 19-20; see Parents’ Exs. P, Q, R, S).

The Department of Education maintained that it has not implemented the September 16, 2014 IEP because its personnel are not authorized to make non-public school placements as they have no knowledge of those schools. Rather, they are only “authorized” to recommend placements within its system (Transcript: 22-23).

CONCLUSIONS OF LAW AND DECISION

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 FAPE, a free and appropriate education 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 child’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 to benefit educationally from that instruction.” Rowley, 458 U. S. at 203.

I find that the September 16, 2014 IEP was developed by a duly constituted and experienced IEP team consisting of a special education teacher, a general education teacher, the district representative, a social worker, a , The IEP explicitly recommends placement in an and both the IEP and the Prior Written Notice authorizing was given to the parents at the IEP meeting and were and members of the IEP team (Parents’ Exs. N at 9, 11, 13-14, Ex O at 1, 3). While the Department of Education , maintained at the impartial hearing that the IEP team was not “authorized” to , the Department of Education presented no evidence of any legal impediment to the implementation of the IEP. Rather, the only justification presented for its refusal to implement the IEP single statement that Department of Education personnel are not authorized to make non-public school placements because they have no knowledge of those schools (Transcript: 22-23).

In the absence of any evidence to the contrary, I find that the September 16, 2014 IEP, which was signed her attorney, the and the district representative present at the IEP meeting, is valid and must be implemented. Similarly, I find that the Prior Written Notice, signed by the same parties is also valid (Parents’ Ex. N at 9, 11, 13, Ex. O at 1, 3). Moreover, although not necessary to support this Decision and Order I find that the evidence and testimony at the impartial hearing was sufficient to is appropriate for the in that it will be able to meet his unique educational needs in the least restrictive environment.

ORDER

In light of the above findings of fact, it is hereby ordered that immediately upon receipt of this Decision and Order and under no circumstances later than five days after the receipt of this Order, the Department of Education is to September 16, 2014 IEP in that it is to:

a) Contact and complete all of the paperwork attend the school;

b) Provide with a ; and

c) Provide from his home to the each day.

Dated: October 15, 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

Parents:

Exhibit	Description	Pages
Exhibit A	Request for Impartial Hearing dated August 7, 2014	6 pages
Exhibit B	E-message from dated August 8, 2014	1 page
Exhibit C	Notice of Appearance by dated August 25, 2014	1 page
Exhibit D	Notice of End of Resolution Period dated September 8, 2014	2 pages
Exhibit E	Motion to Schedule dated September 8, 2014	1 page
Exhibit F	Omitted as Duplicative
Exhibit G	Central Based Support Team Application Packet dated May 8, 2014	16 pages
Exhibit H	E-message of dated June 23, 2014	1 page
Exhibit I	E-message from dated July 28, 2014	1 page
Exhibit J	Letter from Parents to CSE dated August 7, 2014	1 page
Exhibit K	Letter from Parents to Director of Special Services dated August 7, 2014	1 page
Exhibit L	U.S. Postal Service Certified Mail Receipt for Letters to dated August 8, 2014	1 page
Exhibit M	Committee on Special Education Meeting Notice dated September 8, 2014	2 pages
Exhibit N	Individualized Education Program, with attendance sign-in sheet dated September 16, 2012	14 pages
Exhibit O	Prior Written Notice dated September 16, 2014	3 pages
Exhibit P	Parental Guarantee dated September 22, 2014	2 pages
Exhibit Q	Parental Guarantee of Related Services and Supplementary Aids and Services dated September 22, 2014	2 pages
Exhibit R	dated August 6, 2014	1 page
Exhibit S	dated August 20, 2014	1 page
Exhibit T	Department of Education Letter dated August 26, 2014	1 page
Exhibit U	Printout of undated	12 pages

Department of Education:

Exhibit	Description	Pages
Exhibit 1	Due Process Complaint dated August 7, 2014	7 pages
Exhibit 2	Findings of Fact and Decision dated April 4, 2014	6 pages
Exhibit 3	Individualized Education Program dated September 16, 2014	16 pages
Exhibit 4	Defer to Central Package dated May 5, 2014	5 pages

Hearing Officer

The Impartial Hearing Officer did not submit any documents into evidence.

Footnotes

[1] The actual address of