Impartial Hearing Decision

DECISION ORDER

Case Number: 166659

Student's Name:

District:

Hearing Requested By: Parent

Hearing Officer: Martin J. Kehoe III, Esq.

· Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student.

The Parent filed a complaint notice on June 28, 2017 (Ex. A). There was a pendency hearing on July 24, 2017 and the pendency order was issued on August 8, 2017. A hearing was held on September 13, 2017; November 3, 2017; December 19, 2017; January 16, 2018; February 27, 2018; March 7, 2018; March 14, 2018; and June 5, 2019. On March 6, 2018 the Parent submitted a motion for Summary Judgement (IHO #1). There was no response from the District. The case had been referred for settlement (T. 35, T. 42) but by the February 27, 2018 hearing date it had not been resolved and the Parent proceeded with the case and entered exhibits.

Parent's Position

The Parents alleged that the District failed to provide the Student a Free Appropriate Public Education (F APE) for the 2017-2018 school year (Ex A.).

District's Position

The District did not defend its program, call any witnesses or submit any exhibits. The District intended on defending its position by submitting evidence (T. 59-63), but never followed through with that action.

Student History

At the time the complaint notice was filed, the Student was a year old and " ... diagnosed with

Cerebral Palsy, defused hypotonia, delayed language, social, and motor skills, echolalia, and a host of self-stimulatory behaviors reflective of sensory integration disorder suggestive of an autistic spectrum disorder ... " (Ex. J. p. 2). The Student's IEP- recommends a special education program of Adaptive Physical Education 5 times per week; a special class consisting of a 6: 1:2 ratio 35 times per week with Visual Impairment and English services as additional considerations; Occupational Therapy (OT) in English 3 times per week for 30 minutes;

Orientation and Mobility Services 3 times per week for 30 minutes; Physical Therapy (PT) in English 3 times a week for 30 minutes; and Speech and Language Therapy (SLT) in English 3 times per week for 30 minutes (Ex. D).

Legal Background

The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education ("FAPE"). 20 U.S.C. § 612(a)(I). "A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21." 20 U.S.C. § 612(a)(l)(A). The IDEA defines a PAPE 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) include an appropriate preschool, elementary, or secondary school education in the state involved, and

(D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9). ^[1]

A FAPE is crafted through the collaboration of the disabled student's parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(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 disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(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)(l) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)).

Any such complaint is resolved through an "impartial due process hearing" in which parents of disabled children have "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE]

to such child." 20 U.S.C. § 615(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 F APE.

Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

In New York State, "[t ]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing ... "

N. Y. Educ. Law § 4404 (1 )(c), modifying the rule enunciated in Schaffer where "[t ]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief." Schaffer, 546 U.S. at 537.

Analysis

The District did not submit any evidence or call any witnesses. In this case the District rested without introducing evidence and conceded it failed to offer the Student a FAPE for the school year at issue.

Factual allegations in the DPC for which the District bears the burden of proof are deemed admitted if the District fails to address them at the hearing. See SRO No.15-011 (where District conceded and failed to address any allegations, it was deemed to admit deficiencies in IEP); SRO No. 14-179 (same); SRO No. 01-044 (same).

The District bore the burden of both production and persuasion to establish that it provided the Student with a PAPE as well as all other issues alleged in the DPC. N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No. ("SRO No.") 16-028; 13-200; SRO No. 11 -

091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District). See also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 20 I 6). In compensatory education cases, the burden of proqf as to liability and remedy falls on the district; when, as here, there is a concession of PAPE. SRO No. 14-014. See also, SRO 16-033.

On the other hand, in the evidence developed by the Parent, there is support for the appropriateness of the Student's current SEIT program (Ex. J, K, L). Likewise, the Student's Speech and Language Annual Progress Report, supports the continuation of speech and language therapy (Ex. F).

Moreover, the Student's Occupational Therapy Annual Progress Report, commends that the Student " ... continues to benefit from direct Occupational Therapy services to work on strengthening, acquisition of fine motor skills, play skills, and ADL skills ... " (Ex. Gp. 3). Finally, the Student's Physical Therapy Annual Progress Report recommends continued PT services (Ex.

H).

Compensatory Education

Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a "form of damages" because the courts act in equity when remedying IDEA violations and must "do equity and ...

mould each decree to the necessities of the particular case") (quoting Hecht Co. v. Bowles, 321 U.S. 321,329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].

Accordingly, based upon the unopposed record herein I direct the District to place the Student at the Private School (or similar) on a 12 month basis, together with the provision of the following related services: speech/language therapy, physical therapy and occupational therapy, all to be provided three times per week for thirty minute sessions individually; Special Education Itinerant Teacher Services: five hours per week, after school; and specialized transportation, air-conditioned mini-bus.

SO ORDERED,

Dated: June 28, 2019

PLEASE TAKE NOTICE

The parent and New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.S(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.

Directions and forms can be found on the Office of State Review website: http://www.sro.nvsed.gov/RevisedRegulationsOverview.html

Impartial Hearing Officer: 2/2014

,, ,, C'~ , (l''-'lJ:::J::,'·

/71 (s 'i/4 Da~: PP!

Please return completed fonn and evidence to:

Impartial Hearing Office Telephone: (718) 935-3280

131 Livingston Street - Room 202 Fax: (718) 391-6181

Brooklyn, New York 11201

PARENT EVIDENCE

-

Student's Name: Case Number: IGJ. <ofc;

Date of Hearing: <<;~,..~@ I k ·2--;e

,t~/4 .... LW,::1'2 s,2un, pe;tlt""'~•i"Z l"I, "Joi) t J_4,.,1.,M..., If., 2~ 1~

(useseparites eet reac aa of1ieanng) 'f:ta_(J...,A.ll..-, 'l?, i~,J, .A,f)l,Zt.,.ij ·7 1 -z,.,e, J.J.1•J/;[ ~ 2_c,i.'i

Enter Exhibit No. No.of Date Date Date

Brief Description of Exhibit:

Marked for ID• Pages Offered Admitted Withdrawn

{;(E A77AC/.1€.,0

* Parent exhibits: marked with upper case letters (A-Z); Joint Parent & Department ofj6u5f!jft[n e~hibits: marked with lower case letters (a-z)

I certify that the evidence listed herein was~1;;.>JE;"4(

Impartial Hearing Officer: r , , ,"---

/(s/na/ure) c:;::;>

7 ;,v f;/ k7< Date: 7/; 'f /;1 2/2014

r1

DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK

IMPARTIAL HEARING OFFICE

In the Matter of Case No. 166659

(DOB )

PARENTS' EXHIBITS

A	Due Process Complaint 6/28/2017 10
B	Findings of Fact and Decision, Case No. I I 5/10/2017 13
C	Order on Pendency, Case No. 166659 8/8/2017 4

D IEP 6/8/2017 16

E Teacher Progress Report January 201 7 4

F Speech and Language Annual Progress Report 2/21/2017 3

G Occupational Therapy Annual Progress Report 2/23/2017 3

H Physical Theraov Annual Progress Report 2/29/2017 2

I Orientation & Mobility Annual Report 2/22/2017 1

J Annual Student Progress Report 3/30/2017 3

K Quarterly SEIT Progress Report 6/29/2017 2

L Quarterly SEIT Progress Report 8/23/2017 2

---

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 disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term "related services" is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S. C. § 601 (26).