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: November 15, 2013
Actual Record Closed Date: January 6, 2014
Hearing Officer: Brad H. Rosken, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 15, 2013
ESQ., Attorney, — Student
Parent/Mother — Student
(Via Telephone) — Student
Department of Education Representative — DOE
INTRODUCTION
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer in an Impartial Hearing brought pursuant to the Individuals with Education Act (IDEA) and the New York State Education laws. The New York City Department of Education will be referred to as District and the parents as Parents and the child will be referred to as Student.
PROCEDURAL POSTURE
The instant proceeding was commenced by the Parent’s due process complaint notice dated August 19, 2013. The Parents were represented by and the District was represented by its District representative . A Pre-Hearing telephone conference was held on September 20, 2013. A Hearing was held on November 15, 2013. Multiple compliance date extensions were granted due to the witnesses’ availability (T. pgs. 10-11; 101-102). This decision follows.
PARENTS’ POSITION
The Parent’s position is that the District failed to provide a Free and Appropriate Public Education for the student for the school years: 2012-2013, and 2013-2014 and therefore the student is entitled to compensatory education services of academic remediation and that the Committee on Special Education (CSE) refer this matter to Community Based Support Team (CBST) for a placement in a state approved out of district placement.
DISTRICT’S POSITION
The District concedes that it denied the student a Free and Appropriate Public Education and presented no evidence whatsoever (T. pgs. 16-18). The District waived an opening statement (T. pg. 17). The District stated that it would be submitting a closing brief (T. pg. 102) but failed to do so.
LEGAL FRAMEWORK
The "IDEA" is a comprehensive statutory framework established by Congress to aid the states in providing children with a free appropriate public education (FAPE). 20 U.S.C. § 1412(a) (I). "A [FAPE] is available to all children with residing in the state between the ." 20 U.S.C. § 1412(a) (1) (A). The Individuals with Education Act (IDEA) defines a free appropriate public education (FAPE) as special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge,
(B) meet the standards of the state educational agency,
(C)
in the state involved, and
(D) are provided in conformity with the individualized education program required under §1414(d) of this title. 20 U.S.C. §1401(9)[1]
A FAPE is crafted through the collaboration of the student's parents, teachers, and school district administrators and is recorded in an Individualized Education Plan (IEP) (20 U.S.C. §1414(d)). The "core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. §1401(14). In New York State, the IEP is produced by a committee on special education (CSE), whose members are appointed by the board of education or trustees of the school district (N. Y. Educ. Law §4402(1)(b)(1)(McKinney Supp. 2005)). The IDEA provides numerous procedural safeguards to protect the due process rights of children and their parents (See generally 20 U.S.C. §1415). These procedures include the opportunity for parents to obtain an independent educational of the child (20 U.S.C. §1415(b) (I)), and file a complaint with the state or local educational agency (20 U.S.C. §1415(b) (6)). Any such complaint is resolved through an "impartial due process hearing" in which parents of children have "an opportunity to present complaints with respect to any matter relating to the identification, , or educational placement of the child, or the provision of a [FAPE] to such child." See, 20 U.S.C. §1415(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. See, Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2d Cir., 2002).
FINAL DECISION
This is a very easy matter to determine as the District conceded that it failed to provide the student with a FAPE and produced no witnesses or evidence whatsoever. The District did not present an opening or closing argument and failed to submit a closing brief. At the conclusion of the Hearing an Interim Order was issued by myself ordering that the District conduct an (IHO Exhibit II) and an (IHO Exhibit III) and such s were done and ultimately provided to this Hearing Officer on January 9, 2014. Such s have been introduced into evidence as IHO Exhibits II and III respectively. The parent obtained a The parents presented an effective case to establish their entitlement for the relief sought (T. pgs. 28-97). They presented detailed and effective testimony to show the deficiencies in the District’s program and that the student was denied a FAPE for this current school year and the last school year (2012-2013, and 2013-2014) and that the only way to rectify such denial is
Therefore, it is hereby ORDERED that:
1) The Department of Education shall issue a Nickerson Letter and/or a referral to CBST so that a Non-Public Private School (NPS)
placement can be secured for the placement of this student as soon as possible and that CBST may not refuse to place the student in a non-public private school placement (NPS) and it is suggested that a be secured for the student;
2) The Department of Education shall provide for the student
Compensatory Education Services in the form Dated: January 17, 2014
BRAD H. ROSKEN, ESQ.
Impartial Hearing Officer BHR: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 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
Exhibit Letter Brief Description of Exhibit
A Demand for Due Process dated 8/19/13 consisting of 9 pages B IEP dated 5/22/13 consisting of 21 pages C IEP dated 6/5/12 consisting of 18 pages D LRE Statement dated 2013-2014 consisting of 2 pages E undated consisting of 1 page F Letter to District & CSE dated 7/18/13 consisting of 2 pages G dated 7/16/13 consisting of 2 pages H Letter to District from Parent dated 5/10/13 consisting of 1 page I CSE Recommendations dated 1/24/13 consisting of 2 pages J dated 7/30/13 consisting of 4 pages K dated 7/30/13 consisting of 3 pages L 7/30/13 consisting of 9 pages M dated 6/11/13 consisting of 3 pages O Short dated 6/10/13 consisting of 7 pages Q notes dated 5/10/13 consisting of 2 pages R dated 5/10/13 consisting of 3 pages S dated 5/10/13 consisting of 6 pages T dated 1/29/13 consisting of 1 page U Annual Review dated 1/7/13 consisting of 14 pages V 12/1/12 consisting of 5 pages W dated 11/22/12 consisting of 7 pages X dated 11/17/12 consisting of 2 pages Y for IEP dated 4/25/13 consisting of 7 pages Z Invoice for dated 11/5/13 consisting of 1 page AA dated 11/1/13 consisting of
16 pages
DISTRICT
Exhibit Letter Brief Description of Exhibit
None
IMPARTIAL HEARING OFFICER
Exhibit Letter Brief Description of Exhibit I Parent’s Closing Brief dated 12/27/13 consisting of 22 pages II dated/received 1/9/14 consisting of
6 pages III dated/received 1/9/14 consisting of 6 pages
Footnotes
[1] "Special education" is defined by the IDEA as specially designed instruction, at no cost to parents or -- guardians, to meet the unique needs of a child with a , including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education.