NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 5, 2013
August 16, 2013
October 21, 2013
December 20, 2013
Actual Record Closed Date: January 10, 2014
Hearing Officer: Jeanne Keefe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 5, 2013
Esq. — Student
(via phone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 16, 2013
(via phone) — Student
No appearance — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 21, 2013
Esq. — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 20,
2013
Esq. — Student
Parents
District Representative — DOE
INTRODUCTION
On July 15, 2013 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, section 1415 (f) (1), concerning a dispute involving the special education program of (“ ”).
BACKGROUND
is years old and has a classification . (t. 45-46)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. 1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. 1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. 1414 (d); 34 C.F.R. 300.320). As noted by the State Review Office in Application of a Student With A Disability, Appeal No. 11-068 the burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition for a unilateral placement has the burden of proof regarding the appropriateness of such placement. (Educ. Law Section 4404 (1) (c); see MPG v. New York City Dep’t of Educ., 2010WL3398256 at *7 (SDNY Aug 27, 2010). In the case at hand the Parent is seeking services. The IEP is not at issue in this proceeding but rather the provision of services contained within the IEP.
I find that was not provided with FAPE for the 2013-14 school year. The DOE’s position that FAPE had been provided is based solely on an unidentified New York State mandate that related services must be provided by a New York State approved school and that attends such a school and therefore related services must be provided by that school. Based on that State mandate the DOE has no mechanism to provide such services. The DOE has failed to provide this State mandate or directive nor provided any evidentiary or legal support for this position. Further, the DOE has failed to rebut the evidence submitted by the Parent showing that the requested have been issued in the preceding school year. (Ex. C, D, E, Q, S) In addition, testimony of the Parent that had been receiving the services through has not been rebutted nor the Parent’s testimony that the reason he was receiving home services was to generalize what he was learning at school to the home. The Parent also testified that is not provided at and this also has not been rebutted by the DOE. (t. 54-59)
ORDER
Therefore, it is hereby ordered that the Department of Education shall provide the student with a P Dated: January 24, 2014
_______________________
JEANNE KEEFE, ESQ.
Impartial Hearing Officer JK;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 5, 2013
A. Demand for Due Process, dated 7/12/13, 5 pages Parent
B. NYC DOE IEP, dated 2/20/13, 10 pages Parent
C. Documents, dated 8/15/12, 7 pages Parent
D. , dated 2/16/12, 3 pages Parent
E. , dated various, 1 page Parent
DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 21, 2013
F. NYCDOE Due Process Response, dated 7/19/13, 3 pages Parent
G. NYCDOE FNR, dated 2/20/13, 1 page Parent
H. Subpoena, dated 9/13/13, 2 pages Parent
I. Letter from District to Parents, dated 6/6/13, 1 page Parent
J. , dated 1/6/10, 1/14/10, 9 pages Parent
K. , dated 11/2011, 1 page Parent
L. , dated 3/6/12, 2 pages Parent
M. dated 4/2012, 2 pages Parent
N. dated 8/2012, 2 pages Parent
O. dated 12/2012, 1 page Parent
P. , dated 2/20/13, 2 pages Parent
Q. dated 2/20/13, 2 pages Parent
R. dated 2/2013, 3 pages Parent
S. , dated 6/28/13, 2 pages Parent
T. , dated 7/2013, 2 pages Parent
U. dated 8/2013, 2 pages Parent
V. dated 8/19/13, 5 pages Parent
POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER
I. Statement of Adjournments and Extensions, undated, 1 page
II. Petitioners’ Post-Hearing Brief, dated 1/7/13, 11 pages