New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: February 9, 2011

May 2, 2011 Hearing Officer: Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 9, 2011

(via telephone) — Student

(via telephone) — Student

Parent (via telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 2, 2011

Parent did not attend — Student

District Representative — DOE

On January 3, 2011, I was appointed, as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Improvement Act (“IDEIA”) of 2004, 20 U.S.C. Section 1415(f)(1), concerning a dispute involving the special education program of , an year old student classified with a . (DOE- 4)^[1] The hearing was requested to challenge the recommendations made at a Committee on Special Education meeting on June 9, 2010. The student had been placed in a program which the parent believed was too large for him to make progress. The parent requested an expedited CSE meeting where she could present to the DOE private testing which she believed would support her need for a class . A Pre-hearing conference was held on the record on February 9 and a Hearing was held on May 2, 2011 at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York.^[2] A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

At the hearing held on May 2, 2011, the parent did not appear. The parent was notified of the hearing by mail and by the Impartial Hearing Office. The telephone numbers that the parent provided were called prior to the hearing and both were out of service. The parties waited for a period of one hour to see if the parent would appear. The DOE representative made a motion to dismiss. I gave the parent until May 12, 2011 to respond to the DOE motion to dismiss. On May 12, 2011, I had a conference call with DOE representative, , having not heard from Ms. , I dismissed this hearing on May 13, 2011.

The basis for the DOE motion to dismiss was twofold, first Ms. had abandoned her challenges having failed to attend the hearing. Second, the relief requested by the parent in the impartial hearing request (DOE-3) had been granted pursuant to a resolution meeting held on January 31, 2011 (DOE-1) and a CSE meeting held on March 11, 2011 (DOE-10). The parent had requested the following: “an expedited I.E.P. meeting so that I may participate in the planning for entry into grade. . . . I would like this team to consider carefully what is appropriate for my child. At this time, continues to require a small, full time program, and his individual Education plan must reflect that in order to be appropriate.” (DOE-3) Having obtained the relief she sought, there was simply no basis for the hearing officer to rule.

The DOE submitted and I accepted into evidence documents to support the DOE motion to dismiss. The evidence showed that after the pre-hearing conference, the DOE did convene a CSE meeting on March 11, 2011. (DOE-10). Ms. participated in the CSE meeting along with her , . (DOE-10). The CSE reviewed testing that had been conducted. At the parent’s request, was placed in a class . The location of the class was to be , again, at the parent’s request for a location different from current school program. (DOE-11; R- 44). The DOE representative stated that the parent had rejected the placement. At the hearing, I indicated that I had not been appointed to hear a challenge to the recommendations and IEP developed at the CSE meeting on March 11, 2011. I noted at the hearing that all the relief requested in the parent’s request for due process had been granted.

The Individual with Disabilities Education Act (“IDEA”) was enacted “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 and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d). The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 546 U.S. 49, 52 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007]; 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 comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). The "core of the statute" is the collaborative process between parents and schools, primarily through the IEP process (see Schaffer, 546 U.S. at 53). The federal and state statutes and regulations concerning the education of children with disabilities provide for a collaborative process between parents and school districts in planning and providing appropriate special education services (see Schaffer, 546 U.S. at 53; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192-93 [2d Cir. 2005]).

Parents who object to their child’s “identification, evaluation, or educational placement” are entitled to an impartial due process hearing, 20 U.S.C. §§ 1415(b)(6), (f) (1). Under federal and state law a parent may present a complaint with respect to any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student. One of the main policies behind the IDEA is to encourage the prompt resolution of disagreements about the education of children so that such children will not be harmed by long delays before being placed in appropriate educational settings (see 121 Cong. Rec. 37416 [1975] [remarks of ]), and to prevent the child from falling hopelessly behind in his education (Janzen v. Knox Co. Bd. of Educ., 790 F.2d 484, 488 [6th Cir. 1986]; Dep't of Educ. of the State of Hawaii v. Carl D., 695 F.2d 1154, 1157 [9th Cir. 1983]; see also Evans v. Bd. of Educ., 930 F. Supp. 2d 83, 94 [S.D.N.Y. 1996] ["The Act ...was intended to ensure prompt resolution of disputes regarding appropriate education for disabled children"]). "[T]he IDEA's carefully structured procedure for administrative remedies, [is] a mechanism that encourages parents to seek relief at the time that a deficiency occurs and that allows the educational system to bring its expertise to bear in correcting its own mistakes" (Polera v. Bd. of Educ., 288 F.3d 478, 486 [2d Cir. 2001]).

In amending the IDEA in 2004, Congress made a finding that "[p]arents and schools should be given expanded opportunities to resolve their disagreements in positive and constructive ways" (20 U.S.C. § 1400 [c][8]). The IDEA was amended by the Individuals with Disabilities Education Improvement Act of 2004 (“IDEIA”) which authorized a resolution period requiring the District to convene a resolution meeting within fifteen days of receiving notice of the due process complaint. 34 C.F.R. § 300.510(a) (2006). In a resolution meeting, the parent and members of the CSE who have specific knowledge of the facts identified in the due process complaint meet to discuss the due process complaint and the facts that form the basis of the complaint. The meeting is supposed to provide the parties with an opportunity to resolve the dispute. If the District has not resolved the dispute to the satisfaction of the parents within 30 days of the receipt of the complaint, the due process hearing may occur and all of the applicable timelines for a due process hearing shall commence. 20 U.S.C. § 1415(f)(1)(B)(ii).

In New York State, before any dispute comes to a full impartial hearing, the parties are given the opportunity to come to a resolution. Under the Commissioner of Education’s Regulations, when parents initiate a due process complaint against the school district, the school district must convene a resolution session within 15 days of the receipt of that notice unless both parties waive their right to this session. 8 NYCRR § 200.5(j)(2). The Regulations state the purpose of the resolution session is as a meeting “where the parents of the student discuss their complaint and the facts that form the basis of the complaint, and the school district has the opportunity to resolve the complaint.” (Id.)

An IHO may commence a meeting at any time during the impartial hearing process to clarify the issues at stake if a party has represented that an issue has been solved. 8 NYCRR § 200.5(j)(3), Application of a Child with a Disability, State Review Office Appeal No. 06-109; Application of a Child with a Disability, State Review Office Appeal No. 04-103. Once the IHO exercises his or her authority to identify the issues in light of the parties’ actions or offers, s/he may make the determination that the parties do not have a dispute with regard to the identification, evaluation, or educational placement of the student, or the provision of FAPE. Application of a Child with a Disability, State Review Office Appeal No. 07-122; Application of a Child with a Disability, State Review Office Appeal No. 08-088. If that determination is made, the IHO may exercise her authority to dismiss the due process complaint notice as moot. Id.

In the instant case, I am exercising my authority to dismiss this matter as moot. I agree with the DOE that the DOE has undertaken all of the parent’s requested actions over which I would have jurisdiction. The parent was given an opportunity to object to the District’s motion but has failed to respond in a timely matter.

The DOE’s motion to dismiss is granted with prejudice to its renewal. Should the parent seek to object to the recommendations and program developed at the CSE meeting on March 11, 2011, she is free to file a challenge.

Order

The parent’s request for due process is hereby dismissed with prejudice to its renewal. Dated: May 16, 2011

, 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 MAY 2, 2011

DEPARTMENT OF EDUCATION

1 Resolution Agreement, 1/31/11, 2 pp. 2 Report, 6/8/10, 1 p. 3 Due Process Complaint, 12/29/10, 2 pp. 4 IEP, 6/9/10, 15 pp. 5 Report, 6/2/10, 5 pp. 6 Teacher Report, 5/24/10, 2 pp. 7 Related Service Progress Report, 5/10/10, 2 pp. 8 Social History Update, 4/30/10, 2 pp. 9 IEP, 6/10/09, 18 pp. 10 IEP, 3/11/11, 14 pp. 11 C-10 Final Notice of Recommendation, 3/22/11, 2 pp.

Footnotes

[1] Exhibits will be referred to as follows: Joint Exhibits as “J-__”; Parent Exhibits as “P-__” and Department of Education Exhibits as “DOE-__”. Citations to the transcript of the record in this proceeding will be referred to as “R-__” followed by the page number.

[2] Extensions of time for a decision were requested by the parties and granted pursuant State regulations (8 N.Y.C.R.R. §200.5 [i][3]). The record was closed on March 28, 2011, and the decision was due on April 11, 2011.