NY IHO #167548: New York City... | Special Education Law

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FINDINGS OF FACT AND DECISION

Case Number: 167548

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 2, 2017

September 20, 2017

Actual Record Closed Date: October 10, 2017

Hearing Officer: Jeffrey Guerra, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 2, 2017

Attorney (Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 20, 2017

Attorney — Student

District Representative — DOE

Attorney (Via Telephone) — DOE

INTRODUCTION AND PROCEDURAL BACKGROUND

On July 19, 2017, the New York City Department of Education (hereinafter, “DOE” or “District”) appointed the undersigned to act as the impartial hearing officer (hereinafter, “IHO”) in a case brought under the Federal Individuals with Disabilities Education Act [20 USC § 1415(f)(3)] (“IDEA”) and the applicable provisions of the Regulations of the Commissioner of Education [8 NYCRR 200.5] by the parent of

(hereinafter, “the Student”. The Parent requested the hearing by filing a due process complaint that was filed with DOE on July 12, 2017

After preliminary and ancillary determinations were made this matter went to hearing on September 20, 2017, wherein evidence was entered into the record and delineated elsewhere in the decision. Despite this case being scheduled for fact finding the District did not call any witnesses nor present any evidence in this matter. The petitioner moves by summary judgment as there is no genuine issue of fact for this IHO

to consider.

For reasons more particularly described below, the motion for summary judgment is GRANTED.

FINDINGS OF FACT

NEW YORK CITY DEPARTMENT OF EDUCATION CASE

As noted above the DOE did not present any witness or evidence in this matter.

PARENT’S CASE

The Parent through their motion for summary judgment seeks a determination from this IHO to deem that allegations in the due process complaint constitute the facts in this matter. The DOE bears the burden in all matters before this IHO. As a general matter of jurisprudence, the party with the burden of proof has the duty and obligation to prove or disprove a disputed fact. The DOE by failing to present any witness or evidence has failed to meet their burden in establishing that a FAPE was offered to the Student and thus has, in effect, conceding every point alleged by the parent against them.

This position is neither new nor novel within the framework of the Regulations of the Commissioner of Education. The SRO has also found that allegations that are left unchallenged are deemed as true. (See Application of a Student with a Disability, 01-

044). While not controlling in these matters, the SRO decision merely illustrates the basic legal tenet that the party who bears the burden also bears the obligation to prove or disprove a disputed fact.

Therefore as a practical matter this IHO adopts as proven the allegations more particularly described and made in the due process complaint dated July 12, 2017.

CONCLUSIONS OF LAW

The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.” (Bd. Of Educ. V. Rowley, 458 U.S. 176, 179-91 (1982)) Implicit in the congressional purpose of providing access to a free and appropriate public education (hereinafter “FAPE”) is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child. (Id.)

Pursuant to 20 U.S.C. §1401(9) and 34 C.F.R. §300.17 FAPE is defined as follows:

Special Education and related services that are provided at public expense under public supervision and direction and without charge; meet the standards of the SEA… include an appropriate , school, or secondary school education in the State involved; and are provided in conformity with the individualized education program (IEP).

In deciding whether the Respondent provided a student with a FAPE, the inquiry is typically: (1) whether the Respondent complied with the procedures set forth in IDEA; and (2) whether the student’s IEP is reasonably calculated to enable the student to receive educational benefit (Rowley, supra.). Under the second prong, a school district need not maximize the potential of child but must open the door of public education in a meaningful way, and the IEP must provide the opportunity for more than only a “trivial advancement” (P. v. Newington Bd. Of Educ., 546 F.3d. 111 (2nd Cir. 2008)).

The IEP is “the centerpiece of the statute’s education delivery system for disabled children” (Honig v. Doe, 484 U.S. 305, 311 (1988)). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides appropriate specialized instruction and related services (see 34 C.F.R. §300.320 (a)) For an IEP to be “reasonably calculated to enable the child to receive educational benefits,” it must be “likely to produce progress, not regression” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998)).

Additionally, each public agency must ensure that, as soon as possible following the development of an IEP, special education and related services are made available to the child in accordance with the child’s IEP. In order to implement the IEP, a team that includes the child's parents determines where the child should be placed based on the child's IEP. Thus, the placement should not dictate the IEP but rather the IEP determines whether a placement is appropriate. (Rourke v. District of Columbia, 460 F.Supp.2d 32,

44 (D.D.C. 2006)).

In determining the appropriate placement for a child, preference is given to the least restrictive environment and the appropriate schools nearest the child's (Id.).

The IDEA requires that unless the IEP of a child with a disability requires some other arrangement, the child is to educated in the school that he or she would attend if the student was otherwise not disabled. In selecting the least restrictive environment, consideration is given to any potential harmful effect on the child or on the quality of the services that he or she needs. A child with a disability is not removed from education in age appropriate regular classrooms solely because of needed modifications in the curriculum (See 34 C.F.R. § 300.116).

Where a school system fails to provide special education or related services to a student with a disability, the student is entitled to compensatory education, “i.e., replacement of educational services the child should have received in the first place” (Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005). An award of compensatory education “should aim to place the disabled children in the same position they would have occupied but for the school district’s violations of IDEA” (Id.). Compensatory education is a remedy for “past deficiencies” therefore a finding as to whether a student was “denied a FAPE in the relevant time period is a necessary prerequisite to a compensatory education award.” (Peak v. District of Columbia, 526 F. Supp. 2d 32 (D.C.

Cir. 2007).

Pursuant to New York Education Law §4401(c)(1) the DOE shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasions and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires that the trier of fact to find that the existence of a fact is more probable than its nonexistence (Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508

U.S. 602, 622 (1993)).

Unlike other standards of proof, the preponderance-of-evidence standard allows both parties to share the risk of error in a roughly equal fashion, except that when the evidence is evenly balanced, the party with the burden of persuasion must lose (Director, Office of Worker’s Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 281

(1994)).

DISCUSSION

Generally, a motion for summary judgment is a legal tool utilized when no triable issue of fact exists in a particular case. Within the New York Civil Practice Laws and Rules it is embodied in Section 3212. Within the context of the IDEA the SRO has recognized the use of this tool where (1) The parties have had a meaningful opportunity to present evidence; and (2)the nonmoving party is unable to identify any genuine issue of material fact. (See Appeal of a Student with a Disability, No. 04-059 (citing J.D. v.

Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000) and Application of a Child with a Disability, Appeal No. 04-018). See also Application of the Bd. of Educ., Appeal No. 10

014; Application of the Bd. of Educ., Appeal No. 05-007; Application of the Bd. of Educ., Appeal No. 11-10).

In the instant case the District decline to offer any witness or evidence. In opposition to the motion, the District delineates what can be best characterized as a general objection to the relief being sought in this matter, however, in their objection fails explain how or with what evidence they would create an issue a fact where this IHO would have to make a determination.

The failure to present witnesses and evidence compounded with the failure to respond with the instant motion in a substantive and meaningful way leads this IHO to determine that the motion for summary judgement should be granted.

ORDER

BASED ON THE FOREGOING, IT IS,

ORDERED the district must fund the Student’s placement in a , and it is further;

ORDERED in the alternative, until such time as a school placement is found, the District shall fund a program consisting of , with related services of:

1) ,

2) , and

3) , and it is further;

ORDERED that District shall issue authorizations for the child to receive the “in school” related services referenced in above, and it further;

ORDERED that the District must fnd an additional , and an additional , and it is further;

ORDERED that the District must fund

, and it is further,

ORDERED that the Student is entitled to

; and it is further;

ORDERED that the Student shall receive

Dated: October 30, 2017

JEFFREY GUERRA, ESQ.

Impartial Hearing Officer JG:

PLEASE TAKE NOTICE

The parent and/or the 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 200.5(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.nysed.gov/RevisedRegulationsOverview.html

New York City Department of Education, Impartial Hearing Decision