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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: August 10, 2015
October 2, 2015
November 4, 2015
Actual Record Closed Date: December 10, 2015
Hearing Officer: Jeanne Keefe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON
8/10/15 hearing date:
Advocate — Student
District Representative — District
10/2/15 hearing date: — District
Advocate — Student
District Representative — District
11/4/15 hearing date: — District
Advocate — Student
Parents
District Representative — District
INTRODUCTION
On July 8, 2015 I was appointed as the Impartial Hearing Officer (“IHO”) by the New York City Department of Education (“the District” or “DOE”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, §1415 (f) (1) concerning a dispute involving a special education program for (“ ” or “the student”) for the 2015-2016 school year.
BACKGROUND
is a year old child who is in the and attends . (Ex. D) The Parent asserts that the District failed to provide with a free and appropriate public education (“FAPE”) for the 2015-2016 school year based on procedural and substantive grounds. The Parent asserts that there was no Individualized Education Program (IEP) meeting held for the 2015-2016 school year and therefore no IEP was produced. In addition no placement was offered for for the 2015-2016 school year. The Parent sought pendency services for the duration of the hearing. A pendency hearing was held on August 10, 2015 and on that date the Parents’ advocate made a motion requesting pendency during the proceedings as follows: that a pendency order be granted directing that the student shall continue to receive the following related services:
services, hours per week; times weekly for minutes on an basis; in times weekly for minutes on an basis; in times weekly for minutes on an basis.
The District had no objection to the pendency request. The motion for pendency services was granted on August 10, 2015 as requested by the Parent. On August 21, 2015 a written Order of Pendency was issued.
FINDINGS OF FACT
An impartial hearing was started on October 2, 2015 and the District had the opportunity to present their case. The District did not dispute the position of the Parent.
The District did not present any witnesses or evidence to rebut the position of the Parents and rested on that date. (t. 16-17, 24-25)
The Parent testified that is a bilingual student and attends a school. She further testified that no Committee on Special Education (CSE) meeting was held for the 2015-2016 school year despite making efforts to contact the District. She was contacted by the District and was asked to provide a progress report.
The Parent stated that she provided the requested progress report (Ex. D). The Parent followed up with the District after providing the progress report but got no response. (t.
34-35) The Parent testified that is receiving the requested services and is making progress. When is she experiences regression. When and receives services she is . The Parent states that when is receiving her services she is and . (t. 36-43)
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 Officer (“SRO”) 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. (N.Y. Education Law § 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 continuation of services that had received in the prior school year. Those services consisted of the following:
Bilingual services, hours per week;
Bilingual times weekly for minutes
on an basis; in times weekly for minutes on an basis; in times weekly for minutes on an basis.
I find that the District failed to provide with FAPE for the 2015-2016 school year. In essence the District conceded that they failed to provide with FAPE when the decision was made to forgo presenting any witnesses or evidence to rebut the position of the Parent and resting the case on the first day of hearing. In addition, at no time did the District dispute the position of the Parent. As this is a case involving services only the burden does not shift to the Parent. However, I do credit the Parent when she testified that is receiving the requested services (through pendency), that she benefits from those services and is prone to regression when
.
ORDER
Therefore, it is hereby ordered that the continue to receive the following services for the 2015-2016 school year as follows:
Bilingual services, hours per week;
Bilingual times weekly for minutes
on an basis; in times weekly for minutes on an basis; in times weekly for minutes on an basis.
Dated: December 15, 2015
JEANNE KEEFE, 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 ON AUGUST 10, 2015
A. Parent’s Impartial Hearing Request, 6 pages, dated 7/1/15 Parent
B. IHO’s Findings of Fact and Decision, 35 pages, dated 5/23/14 Parent
C. IHO’s Order on Pendency, 6 pages, dated 10/3/14 Parent
DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 4, 2015
D. Updated Educational Progress Report, 4 pages, dated 8/20/15 Parent
POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER
I. Statement of Adjournments and Extensions, undated, 1 page IHO