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FINDINGS OF FACT AND DECISION
Case Number: 161395
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 17, 2016
October 28, 2016
Actual Record Closed Date: November 30, 2016
Hearing Officer: Jeffrey Guerra, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 17, 2016
ESQ., Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 28, 2016
Attorney — Student
District Representative (Via Telephone) — DOE
INTRODUCTION AND PROCEDURAL BACKGROUND
On July 13, 2016, 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 1, 2016.
A hearing commenced on October 28, 2016 wherein the District did not present any witnesses or evidence and conceded FAPE (Tr. at 18) . The Parent sought leave to file a motion for summary judgment in this matter. Leave was granted and a motion schedule was issued by this IHO. The motion for summary judgment and the District’s
“opposition papers1” are entered into evidence as IHO Exhibits I and II, respectively.
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 declined to 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 A pplication 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 1, 2016. (See
Exhibit “A ”).
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 handicap 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 preschool, elementary 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” (W alczak 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 home (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 general education 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 Colum bia, 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 Y ork Education L aw §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 C alif ornia, Inc. v. Construction L aborers 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 W ork er’s Compensation Program s v. Greenw ich 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.
Paw let Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000) and A pplication of a Child with a Disability , Appeal No. 04-018). See also A pplication of the Bd. of Educ., Appeal No. 10-
014; A pplication of the Bd. of Educ., Appeal No. 05-007; A pplication of the Bd. of Educ., Appeal No. 11-10).
In the instant case the District decline to offer any witness or evidence. In their opposition papers, the District delineates what can be 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 District is objecting, without specificity to the service plan proposed by the Parent’s this proposal is not a new or novel approach to the deficits of the Student but are merely a continuation of services previously directed by the preceding IHO in this matter. When the District failed to appeal the IHO decision in that matter, it became the last agreed upon placement for this Student.
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 a denial of FAPE has occurred in this matter.
ORDER
BASED ON THE FOREGOING, IT IS,
ORDERED the district must fund the Student’s placement in a school with , 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 “ ” related services referenced in above, and it further;
ORDERED that the District must find an additional , and an additional , and it is further;
ORDERED that the District must fund
or “ ”, and it is further,
ORDERED that the Student is entitled to services on a ; and it is further;
ORDERED that the Student shall receive
.
Dated: December 2, 2016
JEFFREY GUERRA, ESQ.
Impartial Hearing Officer
JG:
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
A Due Process Complaint, 5 7/1/16, 11 pages
B Finding of Facts and Decision, Case 156327, 5/25/16, 16 pages
C Order on Pendency, , 10 8/17/16, 5pages
D Finding of Fact and Decision, Case 152554, 3/25/16, 24 pages
E IEP, 3/16/15, 22 pages
F Report, 4/25/15, 6 pages
G Report, 4/1/16, 4 pages
H Annual Review and Progress Report, 4/25/16, 3 pages
I Goals 2015/2016 School Year Assessment, 4/25/16,
6 pages
J Goals 2016/2017 School Year, 4/25/16, 4 pages
K Revisit, 1/7/16, 4 pages
IMPARTIAL HEARING OFFICER
I Motion for Summary Judgment, 7 pages
II Opposition Papers, 7 pages
Footnotes
[1] The District offered opposition papers in the entitled “affirmation in opposition”. The District Representative is a non-attorney representative and the form of her papers are neither an affidavit nor an affirmation. These papers will be considered generally opposition papers.