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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: September 2, 2014
Actual Record Closed Date: September 4, 2015
Hearing Officer: Judith T. Kramer, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 2, 2015
Parents
District Representative — DOE
INTRODUCTION
On September 2, 2014 an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the alleged failure of the Department of Education (DOE) to provide a free appropriate public education (FAPE) to (“the student“) for the 2015 -2016 school years. The hearing was held at the Impartial Hearing Office of the Board of Education of the City of New York located at . The hearing
commenced at
A list of exhibits that were admitted into evidence is attached to this decision.
BACKGROUND
On June 24, 2015 the parent filed a request for an impartial hearing alleging that the DOE failed to provide the student a FAPE for the 2015-2016 school year. The student is classified as with that . The parent want a more restrictive program for the student.
THE PARENT’S POSITION
The parent contends that the DOE denied the child a FAPE for the 2015-2015 school year because it failed: 1) to provide a in a timely fashion; 2)
failed to timely develop an appropriate Individualized Education Program (IEP), 3) to provide him with a placement to meet his needs.
The parent requests that the student be placed in a class in a school with his related services.
THE DOE’S POSITION
The DOE’s exhibits were entered into evidence but the DOE didn’t present any witnesses.
FINDINGS OF FACT
The student is student is currently classified as .
In November 2014 an IEP was created recommending a program in a with and a (“ ”) .
(Ex. 11) In June 2015, the IEP team reconvened and again recommended in with a , in a and with a social worker. (Ex. 15) An and were created. (Exs.13, 14)
The parent has requested that the CSE recommend a program with a placement in a school. Although the student’s academic skills are relatively strong he does not produce work. (Ex. 8.1) The student’s have escalated. He has been involved in a number of incidents in which he has acted out violently and which have caused injury to both teachers and other adult staff members. (Ex. 8.2) The parent does not think that the teachers in his class have been trained to deal with is
.
The student
.Id.
The parent filed a request for an impartial hearing in June. At the resolution meeting in June, the parent was issued an for a new for the student. (Exs. 3,17)[1] The notice states that the student’s assessment cannot be completed without the evaluation results. (Ex. 7) The parent was provided with a list or doctors to do the evaluation. She contacted the doctors but was unable to procure a doctor to do the evaluation. The CSE has not been able to assess the student without it in time for the opening of the school year.
CONCLUSIONS OF LAW
Under the IDEA, a child with a disability is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). A FAPE includes special education and related services specially designed to fulfill the unique needs of the student with a disability, and it is provided in conformity with a written IEP. 20 U.S.C. §1401(8). The
DOE has the burden of proof in the first instance regarding whether FAPE was provided.
To meet its burden of showing that it offered to provide a student with FAPE, the DOE must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that substantively, the IEP that was developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefit. Rowley, 458 U.S. at 206-07; R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167, 189-
90 (2d. Cir. 2012);Cerra, 427 F.3d at 192. Here, the DOE did not present witnesses to explain or defend the CSE’s recommendations on the IEP. In light of that, the DOE has failed to meet its burden that it provided the student with a FAPE. The sole remaining question is the remedy.
The DOE has agreed that the student is entitled to a new and issued an in June. As of the date of the impartial hearing, the parent has been unable to get the evaluation done despite her efforts to do so. Without the new evaluation, the CSE cannot assess the student’s needs for this school year and has not defended its decision to place the student in a . The record, produce by the DOE, demonstrates that the student has been involved in including one where he injured his teacher who was . In order to . Accordingly, he should be placed in a school pending the results of the . After the receipt of the evaluation, the CSE shall reconvene and determine whether the placement is appropriate or whether the student requires a different placement including a referral to CBST if needed.
CONCLUSION
Ordered that:
1) The student shall be placed in a program within of the DOE’s receipt of this decision and the IEP shall be modified to reflect this program;
2) The DOE shall assist the parent in procuring a which shall be completed within from the DOE’s receipt of this decision;
3) Within of its receipt of the , the CSE shall reconvene to consider the results of that evaluation and shall modify the IEP to reflect the appropriate services and program for this student including whether the case should be deferred to the CBST.
Dated: September 8, 2015
JUDITH T. KRAMER, 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
PARENT’S EXHIBITS
1 Due Process Complaint 6/24/15 2
2 Due Process Response 6/29/15 3
3 Resolution Agreement 7/20/15 2
4 Request for Reevaluation 9/10/14 1
5 9/11/14 4
6 Consent for Evaluation 9/24/14 1
7 Psychoeducational Evaluation 10/9/14 3
8 Social History 10/14/14 3
9 Progress Report 11/16/14 2
10 Notice of IEP Meeting 11/3/14 3
11 Individualized Education Program (IEP) 11/20/14 11
12 Prior Written Notice of Recommendation 11/24/14 4
13 ( ) 6/17/15 6
14 16/15/15
6/////// 7
15 Individualized Education Program (IEP) 6/17/15 12
16 Prior Written Notice of Recommendation 6/24/15 4
17 Assessment Authorization 7/27/15 6
Footnotes
[1] There was a done in the summer of 2014 but it did not address his at school.