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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth: District: 24 Hearing Requested By: Date of Hearing: May 23, 2011 Hearing Officer: Barbara J. Ebenstein, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED MAY 23, 2011
Student
Student
Student
Student
Student
Student
, DOE
This is New York City case #132710. On May 23, 2011, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA 2004), 20 U.S.C. Section 1415(f)(3), regarding the special education of at the New York City Department of Education Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. The New York City Department of Education was represented by , DOE designee, and the were represented by , and , of , ,& . The Student, , attended this impartial hearing. The used an . A list of witnesses who testified and documents received into evidence is attached to this decision.
ISSUE
The sole issue in this impartial hearing is . (Tr. 12) Although the impartial hearing complaint refers to both and , the settled at a resolution . (Tr. 8; Ex. E)
THE POSITION
The contend that the Department of Education Committee on Special Education (CSE) convened for and placed him in a education class of to with for the 2010 – 2011 school year. The Department of Education never placed the Student or implemented the IEP, so that has been without any or for the entire school year.
THE DEPARTMENT OF EDUCATION POSITION
The Department of Education concedes that had no and no or for the 2010 – 2011 school year. The Department concedes that it did not offer free appropriate public education (FAPE) for the 2010 – 2011 school year. (Tr. 6-7)
FINDINGS OF FACT
is a - and - year old who has been with and . (Ex. A at 1, Ex. B at 5) The CSE classified his as “ .” The CSE convened on March 24, 2010 and November 24, 2010 and developed IEP’s that placed in a class in an school with . (Ex. B, C)
The parties stipulated to the following facts on the record. The CSE met for on November 29, 2010, but the Department of Education never placed him. (Tr. 14) had no or this school year, and he still has none as of the date of this impartial hearing. (Tr. 15) The Department of Education has offered school placement that the will visit soon, and it has issued a Nickerson Letter, a P-1R, permitting the to place the Student in an approved school, should they not find a placement . (Ex. D.)
CONCLUSIONS OF LAW
The basic principle of the IDEA is the development and implementation of an Individualized Education Program (IEP) for each eligible student. Subsequent to its development, an must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087, Application of a Child with a Disability, Appeal No. 09-
111) In this case, the CSE developed an appropriate IEP, but the Department of Education never implemented it.
I find that this lack of implementation for almost a full school year constitutes a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990)
Under the federal and state regulations governing resolution sessions, a written settlement agreement is enforceable in state or federal court. 34 C.F.R. §300.510[d][2]; 8 NYCRR 200.5[j][2][iv]. Impartial hearing officers and the New York State Review Office do not review matters resolved in a resolution agreement. Application of a Student with a Disability, SRO Appeal No. 09-112 Therefore, I will not review the resolution agreement that settled the related services issue for sufficiency. (Ex. E)
CONCLUSION
The Department of Education has not only denied a “free and appropriate public education” for the 2010 – 2011 school year, but it has committed a gross violation of the IDEA that resulted in the denial of and exclusion from all educational services for a substantial period of time.
The Department of Education issued a Letter. (Ex. D) The letter does not state the dates that the approved will begin or end. This leaves both the and the receiving school in a vague situation in which they are uncertain of the length of the placement.
ORDER
I order the Department of Education to place the initial date of application and the length of validity on its Nickerson Letter for V. May 31, 2011
____________________________
BARBARA J. EBENSTEIN, ESQ.
Impartial Hearing Officer
BJE:jj
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the 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 23, 2011
A Hearing Request, 4/4/11, 3 pp.
B IEP, 11/29/10, 15 pp.
C IEP, 3/24/10, 13 pp.
D , 5/16/11, 1 p.
E Resolution Agreement, 5/23/11, 2 pp.