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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: January 21, 2014
Actual Record Closed Date: February 2, 2014
Hearing Officer: Edgar De Leon, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date Legal Fellow PARENT 01/21/14 Attorney PARENT 01/21/14 Attorney PARENT 01/21/14
Mother PARENT 01/21/14 Attorney DOE 01/21/14 Attorney DOE 01/21/14
DOE 01/21/14
On December 3, 2013 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1) and the Regulations of the Commissioner of Education, Part 201 - Procedural Safeguard for Students with Subject to Discipline, concerning a dispute involving the suspension and subsequent “manifestation determination” of a ( ) year old attending a public school within the New York City Department of Education (“DOE”) . I was appointed after the recusal of at least one other IHO.
A notice to proceed to an expedited impartial hearing was received from the New York City Department of Education Impartial Hearing Office on or about December 3, 2013. The hearing of this matter was held on January 21st and January 22nd, 2014. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.
BACKGROUND
The “amended” Due Process Complaint (“”) alleges that the student was () A
(d) an order granting such other and further relief as may be just and proper.
THE DOE’S CASE
The DOE argues that the issue in this case is whether or not the student’s
The DOE called (1) witness to testify on its behalf and submitted (12) documents in evidence. In sum, substance and relevant part, the testimony for and against the DOE is incorporated in the decision below.
THE PARENT’S CASE
The Parent argues that the old and in an a public school. (T-6) The
The Parent called herself as a witness and submitted (3) documents in evidence. In sum, substance and relevant part, the testimony for and against the Parent is incorporated in the decision below.
FINDINGS OF FACTS & DECISION
The purpose behind the Individuals with Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that students with have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).10 All children with residing in the State between the ages inclusive, have the right to FAPE, including children with who have been suspended or expelled from school (20 U.S.C. § 1412 [a][1][A]; see also 34 CFR § 300.121 and 8 NYCRR 201.10). A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 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]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; [D. Vt. 1996]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]).
The IDEA, New York Education Law and their implementing regulations provide specific procedural protections for children with who are subject to discipline (20 U.S.C. § 1415[k]; N.Y. Educ. Law § 4404[4][b]; 34 C.F.R. §§ 300.519-300.529; 8 NYCRR Part 201). New York requires that the CSE shall conduct an review of the relationship between the student's and the behavior subject to disciplinary action immediately, if possible, but in no case later than ten school days after a decision is made to impose a suspension that constitutes a disciplinary change in placement (8 NYCRR 201.4[a][3]; Application of a Child with a Disability, Appeal No. 05-055; Application of the Bd. of Educ., Appeal No. 04-053; Application of the Bd. of Educ., Appeal No. 04-006; Application of the Bd. of Educ., Appeal No. 03-075). In addition, either before or not later than school days, the CSE must convene to develop an address the behavior that resulted in the suspension, if no had previously been done (20 U.S.C. §1415[k][l][B][I]; 34 C.F.R. §300.520[b][l][i]; 8 NYCRR 201.3[a][1]; Application of a Child with a Appeal No. 02-064). As soon as practicable after developing the plan, and completing the required by the plan, the CSE must meet to develop interventions to address the behavior that resulted in the removal (34 C.F.R. §300.520[b][2]; 8 NYCRR 201.3[a][1]).
Additional services may be provided to make up for educational services not received during a student's suspension. State Review Officers have awarded equitable relief in the form of additional educational services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (SRO No. 03075, 02-042 & 02-030).
State regulations provide that a superintendent's hearing shall be conducted prior to a manifestation determination made by the manifestation team (see 8 NYCRR 201.9[c]). Where the manifestation meeting is held prior to the superintendent's hearing it does not comport with the law. 8 NYCRR 201.9(c)(1). Nevertheless, this may only result in error if the hearing record does not persuasively identify harm to the petitioner resulting from this procedural error. (See 20 U.S.C. § 1415[f][3][E][i]; 8 NYCRR 200.5[j][4]).
The manifestation team is charged with reviewing all relevant information in the student's file, including the student's IEP, any teacher observations, and any relevant information provided by the parents to determine if: (1) the conduct in question was caused by or had a direct and substantial relationship to the ; or (2) the conduct in question was the direct result of the school district's failure to implement the IEP. (See 8 NYCRR 201.4[c])
Here, the student’s full-time was present for the entire incident. (T-23)
NOW therefore, it is hereby
ORDERED that the DOE’s finding that the student’s behavior on September 17, 2013 was not a manifestation of and that the DOE proceed as if said has resulted in a finding that the student’s behavior is a ; and it is further
ORDERED that the DOE shall conduct a new FBA and create and appropriate for the student; and; and it is further
ORDERED that the student shall receive compensatory services at the DOE’s costs for the educational services , in an amount commensurate with those services required as required under her IEP dated December 13, 2013; and it is further
ORDERED that the Parent’s requests for an order reinstating the student to her home school or to another placement acceptable to the Parent is unsupported by the record and as such denied. Dated: February 19, 2014
_____________________________
EDGAR DE LEON, ESQ.
Impartial Hearing Officer EDL: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 RECORD
Number/Letter Title Dated For # of Pages
01 Due Process Complaint 12/02/13 DOE 01
02 09/25/12 DOE 06
03 IEP 10/10/12 DOE 11
04 IEP 12/13/13 DOE 09
05 10/10/12 DOE 02
06 10/10/12 DOE 01
07 09/25/13 DOE 06
08 Not Received N/A DOE N/A
09 10/16/13 DOE 06
10 Not Received N/A DOE N/A
11 09/20/13 DOE 01
12 Superintendent Suspension 10/23/13 DOE 10
13 Not Received N/A DOE N/A
14 09/17-8/13 DOE 03
15 12/13/13 DOE 01
16 Not Received N/A DOE N/A
17 Not Received N/A DOE N/A
18 Not Received N/A DOE N/A
A Undated PARENT 03
B Treatment Plan 10/02/13 PARENT 01
C 09/17/13 PARENT 01