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FINDINGS OF FACT AND DECISION
Case Number: 156439
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 21, 2015
October 16, 2015
January 28, 2016
February 29, 2016
March 16, 2016
Actual Record Closed Date: April 20, 2016
Hearing Officer: Jeffrey Guerra, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 21, 2015
Attorney for Parent — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER16, 2015
Attorney (Via Telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 28, 2016
(Via Telephone) — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 29, 2016
ESQ., Attorney — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 16, 2016
ESQ., Attorney — Student
District Representative — DOE
INTRODUCTION AND PROCEDURAL BACKGROUND
On September 8, 2015, 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 The Parent requested the hearing by filing a due process complaint that was filed with DOE on July 7, 2015 and ultimately amended on August 20, 2015.
Prior to the appointment of this IHO. IHO James McKeever issued an Order of Pendency dated August 21, 2015. The Order of Pendency1 directed the following:
1. A program that follows the on a basis, with , and that the program be
to ;
2. The DOE will pay the tuition at the (" ") for purposes of implementing the program above in paragraph 1;
3. for to attend ;
4. per week of with providers selected by Parents
5. for at least
per week with providers selected by Parents;
6. per week for each with providers selected by the Parents;
7. per month between the with providers selected by the Parents;
8. ;
9. ( ) on a basis; and
10. ( ) on a basis.
The Pendency Order of IHO McKeever is entered as IHO Exhibit I.
Upon the appointment of this IHO and after preliminary and ancillary determinations were made, counsel for 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 partial- summary judgment is entered into evidence as IHO Exhibit II. The District while having the opportunity to respond has declined to do so.
Moreover it was indicated at the hearing that the District was resting on the record without the presentation of any witnesses or evidence in this matter (Tr. at 49).
For reasons more particularly described below, the motion for summary judgment is GRANTED2.
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 that bears the burden of proof bears the obligation to prove one's assertion or more simply put, the party with the burden of proof has the duty (or burden) placed upon them 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).
2
, in filing their motion for summary judgment the Parent seek to . The jurisdiction over needs not to be addressed in this matter and are therefore not considered by this IHO and will be marked as withdrawn without prejudice.
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.
As it happened here, the district did not use the term “concede” when notifying this IHO that they were not going to present a case. The district chose the term “rest” their case. Regardless of the term chosen the result is identical, the DOE chose not to introduce witnesses or evidence in this matter and has thus failed to meet their burden.
Therefore as a practical matter this IHO adopts as proven the allegations more particularly described and made in the due process complaint dated August 20, 2016. (See
Exhibit “C”).
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 be 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 not only did the District decline to offer any witness or evidence but also declined to submit response papers to the motion for summary judgment. The failure to present witnesses and evidence compounded with the failure to respond with the instant motion leads this IHO to only one conclusion that a FAPE was denied for the 2015-2016 academic school year and the relief being sought by the parent is necessary and appropriate for the child.
ORDER
BASED ON THE FOREGOING, IT IS,
ORDERED that the DOE failed to meet its burden to establish that a FAPE was provided to the Student in the 2015-2016 academic school year, and it is further;
ORDERED the DOE is directed to reconvene the CSE meeting to develop an IEP that meets the needs of the child that, at a minimum includes the following services:
a. A program that on a basis, with ," and 2) that the "
" implemented at (" ") ;
b. for the Student to attend throughout the pendency of this matter;
c. per week of with providers selected by Parents
d. for at least
per week with providers selected by Parents;
e. per week for with providers selected by the Parents;
f. per month with providers selected by the Parents;
g. ; and
h. on a basis; and
i. on a basis.
j. , and it is further;
ORDERED that within sixty days of this Order the DOE shall calculate the number of and hours, if any, that the Student did not receive from July 1, 2015 through the date of the order; and, to the extent that there are any hours that were not provided, those missing hours would form the basis of a bank of services that the Student can use until such time as the earlier date of: (a) the date on which the hours have been completed; (b) the Student graduates with a regular diploma; or (c) the Student ages out of his entitlement to public education, and it is further;
ORDERED that within sixty days following June 30, 2016 (i.e., the end of the 2016-2017 SY), the DOE shall calculate the number of and hours, if any, that the Student did not receive from July 1, 2015 through the date of the order; and, to the extent that there are any hours that were not provided, those missing hours would form the basis of a bank of services that the Student can use until such time as the earlier date of: (a) the date on which the hours have been completed; (b) the Student graduates with a regular diploma; or (c) the Student ages out of his entitlement to public education, and it is further,
ORDERED all other claims not specifically addressed in this decision are hereby marked withdrawn without prejudice.
Dated: April 28, 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 Findings of Facts and Decision, 6/29/15
B Due Process Complaint, 6/1/15
C Amended Due Process Complaint, 8/20/15
D Gmail Correspondence regarding Amended Due Process Complaint,
8/8/2015
E Gmail Correspondence regarding 2015/2016 Services
F Gmail Correspondence regarding Received Impartial Hearing Request, various dates