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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 8, 2015
Actual Record Closed Date: January 16, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 8, 2014
Parent/Mother — Student
Special Education Coordinator, — Student
Special Education Teacher, — Student
Director of Special Education, — Student
DR. Committee on Special Education Region Representative — DOE
IEP Teacher, (Via Telephone) — DOE
Special Education Teacher (DID NOT TESTIFY) — DOE
INTRODUCTION
On January 8, 2015 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-aged child, (“ ”). The hearing commenced at and was held at the Impartial Hearing Office, . A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.
BACKGROUND
is years months old and is classified as having a .
She attended a class at in the for and and currently attends the (“ ”) where she is for the . In her pro-se impartial hearing request ’s mother, maintained that is “ ” in that she is years-old and in the . She asked that the Department of Education be ordered to “re-consider placement in the correct setting”
(IHO Ex. II).
Ph.D., represented the Department of Education at the hearing. The parent appeared at the hearing pro-se.
I was assigned as impartial hearing officer in the case on November 4, 2014 and the original compliance date was January 19, 2015. Following a hearing on January 8, 2015 the compliance date was extended to February 18, 2015 for the receipt of the transcript and the issuance of Decision and Order.
The extension was granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations. Specifically, (a) the child was attending school and receiving her related services and thus there was no negative impact on the child’s educational interest or well-being as a result of the delay; (b) in accordance with due process the parties were entitled have this hearing officer review the transcript and consider the evidence prior to the issuance of a Decision and Order; (c) there were no financial or detrimental consequences likely to be suffered by either party by the delay; and (d) there were no prior delays in this case.
ISSUE TO BE RESOLVED
Whether must attend the recommended placement, a class at , her zoned school, or whether she may attend another appropriate program in her
District.
FINDINGS OF FACT
“ ” is ’s mother. is the Director of Special Education at ( : 6). is the Individualized Education Program (“ ”) teacher at ( : 26-27).
attended a class at for and . was accepted at and was able to transfer there as well (AT: 20-21).
When she arrived at in the summer of 2013 tested at level in and , and she the for the 2013-2014 school year. provided with instruction, “ ” services and (“ ”) ( : 15). In November 2013 the Department of Education conducted a psychoeducational evaluation of and “ ” ’s placement with the Committee on Special Education (CSE), which recommended a setting at ( : 15-16; DOE Exs. 2, 3).
agreed with the program but disagreed with the placement recommendation. In a letter to of the CSE dated December 20, 2013 explained her reasons for rejecting , noting that she had asked for a transfer while was at that school pursuant to “ ” but that her request was rejected . The CSE did not offer another placement and remained at ( : 16; AT: 13; Parent’s
Ex. I).
At the end of the 2013-2014 school year had moved up only levels while typically a moves up levels during the course of the school year. was in the for the 2014-2015 school year ( :
16).
’s November 21, 2014 IEP classified as having a and recommended a program with and services a week. At the IEP meeting stated that she believed ’s zoned school is “inappropriate educationally and cannot meet [ ’s] needs” (DOE Exs. 1, 6). In December 2014 a placement recommendation was again issued for , ’s zoned school. In a letter to dated December 19, 2014 indicated that she was rejecting the placement at and she requested a placement recommendation for which is walking distance from their or for another school in (Parent’s Ex. H).
No other placement was offered.
’s mother and Ms. both agree that is not able to provide with sufficient modifications and services to increase her rate of progress and thus cannot meet ’s special education needs at this time ( : : 16; AT: 12, 16). agrees with ’s IEP recommended program. However, she does not want to return to , her zoned school. believes that the school did not provide with an appropriate education when she attended there for and , noting that she did not receive all of her mandated services during that time and that did not improve at all ( : 12-14, 18-20). also alleged that is a failing school in need of improvement and that the Department of Education rated the school as “ ” as of October 2014, with of the students proficient in and of the students proficient in ( : 22; Parents’ Ex. E). Instead, is asking that the Department of Education recommend “ ” ’s District, that has an appropriate program for ( : 13-14). testified that in November 2014 she spoke to the principal of who told her that there was a seat for in the class at that school, which, although is not her zoned school, is walking distance from her ( : 23-24; see Parent’s Ex. H) .
Ms. , the IEP teacher at , testified that there is a seat for in a class at that school. The class currently has students, including , the majority of whom are classified as having a , as does There are no students with problems in the class ( : 28-29, 33; DOE Ex. 1 at 1). is on a and level of “ ” “ ” of the students in the class are students who are on a level than ( : 29-31). The class has a that is assigned to but she also sometimes works with other students in the class
( : 32).
The class uses the approach to and uses the “ ” program ( : 32). Ms. knows from when she previously attended and she opined that had attended the class at the school she would have made academic progress ( : 27, 35).
CONCLUSIONS OF LAW AND DISCUSSION
I begin by noting that unless otherwise indicated below I credit the testimony of all of the witnesses who appeared at the hearing.
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 a child to benefit educationally from that instruction.” Rowley, 458 U. S. at 203.
There is no dispute about the propriety of the November 21, 2014 IEP or about the appropriateness of the placement recommendation. Rather, the only issue is whether the parent is entitled to have placed in a program at or another school in her district, , rather than , ’s zoned school.
Based on the testimony at the impartial hearing it is clear that does not believe that the education received at for and her first year of – the 2011-2012 and 2012-2013 school years -- was appropriate to meet her special education needs, and that she is basing her objection to the current placement recommendation at on her dissatisfaction during those years as well as the school’s October 2014 rating by the Department of Education. I find that the reasons for ’s objections to that placement recommendation are not sufficient, standing alone, to mandate that be offered a placement in another school at this time. However, I also find that the ’s request to place in a program at another school in her
District is not an unreasonable request under the circumstances.
In making that determination I note that advised the CSE numerous times that she did not want to attend but would accept any other placement in .
Specifically, she advised the CSE in a letter to in November 2013 that she was rejecting the placement for specific reasons and she her objections to the school at the November 2014 IEP meeting and in a subsequent letter to Mr. in December 2014 (DOE Ex. 6; Parent’s Exs. H, I). In addition, requested that be transferred to another school within but those requests were denied
( : 13). I find that there would be no detriment to the Department of Education if is permitted to attend a program in a school other than .
In light of this conclusion I am ordering that visit the recommended program at and assess whether she believes that this particular program is appropriate to meet ’s special education needs at this time. If determines that the placement is inappropriate she is to notify the CSE in writing of that fact and her reasons for the rejection. In that circumstance the CSE is to offer the child a placement at , the placement requested by and that is within walking distance from her . If there is no seat available for at or if the school determines that the class is not appropriate for , the District is to offer a placement at another school in
.
ORDER
In light of the above findings of fact, it is hereby ordered that immediately upon receipt of this Decision and Order:
1) The parent is to visit the recommended placement at ;
2) If she rejects that placement she is to notify the CSE of that fact in and explain her reasons for the rejection;
3) Immediately upon receipt of that letter the CSE is to recommend a placement in the class at in ;
4) If does not have a seat for in the program or if the school determines that the class is not appropriate for , the CSE is to offer the child a placement in another program in . The number of placements offered for the child shall not exceed two in addition to .
Dated: February 4, 2015
, 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
Department of Education:
Exhibit 1 Individualized Education Program
(IEP) dated November 21, 2014, 14
pages
Exhibit 2 School Location Letter dated
December 16, 2014, 2 pages
Exhibit 3 Psychoeducational Evaluation
Report dated November 25, 2013, 7
pages
Exhibit 4 Student Information dated December
3, 2014, 4 pages
Exhibit 5 Student Progress Report dated
November 14, 2014, 2 pages
Exhibit 6 Minutes of Committee on Special
Education (CSE) Meeting dated
November 21, 2014 1 page
Exhibit 7 Teacher Report dated November 12,
2014, 2 pages
Exhibit 8 - Annual
Progress Report dated November 12,
2014, 2 pages
Parent:
Exhibit A Request for Child’s Presence (fax)
dated January 6, 2015, 1 page
Exhibit B Receipt of Impartial Hearing Request dated November 4, 2015, 1 page
Exhibit C Cover Page for Documents Faxed to
Impartial Hearing Office (fax) dated
January 6, 2015, 1 page
Exhibit D Report Card,
dated 2014-2015, 5
pages
Exhibit E Schools Performance Reports for
2014, 1 page
Exhibit F Teacher Reports dated November
2014, 3 pages
Exhibit G Schools IEP
Progress Report Effective Date
December 2, 2013, 5 pages
Exhibit H Letter from Parent to
dated December 19, 2014, 1 page
Exhibit I Letter from Parent to
dated December 20, 2013, 1 page
Exhibit J Accountability Data For for
2010-2012, 1 page
Exhibit K Accountability Data For for
2010-2012, 1 page
Hearing Officer
Exhibit I Case Follow Up sheet indicating
extension of the timeline, 1 page
Exhibit II Parent’s Request for an Impartial
Hearing dated October 28, 2014, 1
page