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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 9, 2013
August 15, 2013
October 8, 2013
November 15, 2013
February 4, 2014
Actual Record Closed Date: February 28, 2014
Hearing Officer: Linda Agoston, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 9, 2013
None — Parents
None — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 15, 2013
Advocate — Parents
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 8, 2007
Attorney Mother — Parents
Interpreter — Parents
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 15,
2013
Attorney — Parents
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 4, 2014
Attorney — Parents
Interpreter — Parents
Judge Rotenberg Center Clinician Mother — Parents
DOE
The matter of . (hereinafter the student) came on for hearing before me on August 9, 2013 and both parties requested I issue an Order on Pendency. On July 5, 2013, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, (IDEA) 20 U.S.C. §1415. The parent, by her attorney, , filed the request for an impartial hearing on July 2, 2013. On August 9, 2013, made a motion requesting clarification of the child’s pendency placement from July 5, 2013 until the date of my decision on the merits. Mr. assistant requested that the student’s program at approved throughout the pendency of the hearing pursuant to the unappealed final Order of Findings of Fact and Decision (Exh. B) dated January 22, 2013 (trans. 12). On August 28, 2013, I ordered that the student continue to attend and that his program include court . Hearings were held on August 15, 2013, October 10, 2013, November 14, 2013 and February 4, 2014. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly the requests for extensions of the compliance dates were granted (Exhs. I-III, V-VII). The current record close date is February 28, 2014 and the compliance date for issuing a decision is March 14, 2014. Appended to the record are lists of persons in attendance and of documents submitted into evidence The hearing was requested by the parent to challenge the April 17, 2013 IEP and the actions of the Committee on Special Education (CSE) for Region 3 to the extent that the was removed from the program (Exh. A at 3).
BACKGROUND
The student is aged
THE DEPARTMENT OF EDUCATION’S CASE
was present on behalf of the Department of Education (DOE). He conceded that the DOE could not meet its burden to prove it provide a free appropriate public education (FAPE) for the 2013-2014 school year (Exh. VIII at 1; trans. 65). He questioned that parent and the parent’s witnesses. Furthermore, he offered no explanation as to why the of was removed from the April 17, 2013 IEP, nor did he respond to the allegations that the CSE team did not consider the input from the parent or the student’s teachers at He stated in his post-hearing statement that the little progress the student made was did not support the continued use application (Exh. VIII at 1).
THE PARENT’S CASE
The parent and
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The District must establish that it appropriately ascertained the child’s educational needs and prepared an IEP in accordance with the procedural and substantive requirements of federal and New York State Regulations. The parent asserted that the school district failed to offer a FAPE in that the CSE failed to offer an appropriate program for the 20132014 school year and the DOE conceded not FAPE was provided for the 2013-2014 school year; however, the parent requested my order include a finding that the decision to remove the from the student's program was predetermined and denied the parent a meaningful opportunity to participate in the development of the IEP (Exh. A at 4). The State Review Officer (SRO) has ruled on the issue of the type of procedural violation that would render an IEP invalid. In Application of a Child with a , Appeal No. 06-080, the SRO ruled that “while school districts must comply with all IDEA procedures, not all procedural errors render the IEP inadequate under IDEA” citing (Grim v. Rhinebeck Cent. School Distr., 346 F3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). “Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 200.5[i]).”
The parent alleged that the procedural violation was that CSE failed to consider her request that the of as part of the student’s program at . The Supreme Court has held that parental participation was a central principle of the IEP process. The Court held that “the importance Congress attached to these procedural safeguards cannot be gainsaid. It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation in every stage of the administrative process" Board of Education v. Rowley, 458 U.S. 176 at 205-206 (1982). The Court held that the “core of the statute, however, is the cooperative process that it established between the parents and the schools” Schaffer v. Weast, 126 S. Ct. 528 at 532 (2005). I find the parent established that she was denied meaningful participation in the April 17, 2013 IEP review. The decision to remove the was made prior to April 17, 2013 CSE meeting and seemingly in response to the regulations with no consideration of the student’s actual needs. Based on the foregoing I find the parent was not allowed an opportunity to participate in the decision-making process and I find there was no FAPE for the 2013-2014 school year.
The parent asserted that she did not have the burden of proof to establish the appropriateness of the GED (Exh. IX at 3) as the burden Burlington/Carter analysis did not apply in a case where the district seeks to change the student's services without the parent's consent (Exh. IX at 4). The parent noted that SRO has ruled on the issue of the burden of proof and found there was no basis for the impartial hearing officer to require the parent to prove the services she sought were appropriate for the student unless the parent unilaterally places the student in a private school ore seeks reimbursement for her expenses relating to services she unilaterally obtained without the consent of the district in Application of a Child with a , Appeal No. 11-053 (Exh. IX at 5).
ORDER
The parent's request that the be placed on hte student's IEP while attending the in the 2013-2014 school year is granted. I order that this case be remanded to CSE to develop a procedurally and substantively valid IEP and develop . I further order that CSE allows the parent to participate in the decision making process and consider the input of the staff at and conduct all relevant . Dated: March 10, 2014
_______________________
LINDA AGOSTON, ESQ.
Impartial Hearing Officer LA;mv
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 AUGUST 15, 2013
A Impartial hearing Request, 7/1/13,[6] pp. Parent
B IHO Findings of Fact and Decision, 1/22/13 12 pp. Parent
DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 8, 2013
II Decision on Extension, 10/8/13, 1 p. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 15, 2013
1 Withdrawn DOE
2 Withdrawn DOE
3 Withdrawn DOE
4 Withdrawn DOE
5 Withdrawn DOE
7 Withdrawn DOE
8 Withdrawn DOE
9 Withdrawn DOE
10 Withdrawn DOE
11 Withdrawn DOE
12 Withdrawn DOE
I Decision on Extension, 9/16/13, 1 p. IHO
III Decision on Extension, 11/15/13, 1 p. IHO
IV Order, 5/29/13, 3 p. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 4, 2014
C , 4/12/13, 2 pp. Parent
D , 6/12 - 9/12, 8 pp, Parent
E , 9/12 - 12/12, 9 pp. Parent
F , 12/12 - 3/13, 12 pp. Parent
G , 3/13 - 6/13, 13 pp. Parent
H Student Report Card, 2012-2013, 1 p. Parent
I Class Schedule, undated, 1 p. Parent
J
, 3/25/13, 34 pp. Parent
K 5/20/13, 2 pp. Parent
L Program Description, 2/3/14, 5 pp. Parent
M Report Card, 2013-2014, 1 p. Parent
N , 6/13 - 9/13, 12 pp. Parent
O
Intervention Plan, 4/17/13, 8 pp. Parent
P , 3/3/14, 7 pp. Parent
I Decision on Extension, 9/16/13, 1 p. IHO
II Decision on Extension, 10/8/13, 1 p. IHO
III Decision on the Extension, 11/15/13, 1 p. IHO
IV Order from New York State District Court,
, May 29, 2013 IHO
V Decision on Extension, 12/13/13, 1 p. IHO
VI Decision on Extension, 1/13/14, 1 p. IHO
VII Decision on Extension, 2/4/14, 1 p. IHO
POST HEARING SUBMISSIONS
VIII DOE’s Post Hearing Closing Statement, 2/28/13, Parent 2 pp. IX Parent's Post Hearing Closing Statement, Parent
2/28/13, 8 pp.
Footnotes
[6] Withdrawn DOE