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FINDINGS OF FACT AND DECISION
Case Number: Student‟s Name: Date of Birth: District: 3 Hearing Requested By: Parent Date of Hearing: July 11, 2011
July 19, 2011 Hearing Officer: Jean Marie Brescia, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 11, 2011
Advocate — Student
Mother — Student
Spanish Interpreter — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 19, 2011
Advocate for — Parents
Parents
Spanish Translator — Student
Attorney — DOE
— DOE
On June 7, 2011, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of . The parent requested the hearing on June 3 (1) to challenge ‟s placement; and (2) to seek an “IEP review” and a “Nickerson” or P-1 letter with a list of “appropriate placement options” for (IHO Ex. I [hearing request]).
The hearing was scheduled to commence on July 11 and was continued, and completed, on July 19. The original compliance date of July 31 was not extended. The record closed on July 27 upon receipt by the hearing officer of the transcript. Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.
The following facts are not in dispute. The Department of Education provided the parent, and the parent accepted, a P-1 letter and a list of approved non-public schools (trans. 12, 33-34). In addition, the Department had contracted with the School for the Deaf to conduct an evaluation of by a bilingual school psychologist certified in and would be scheduling an CSE review meeting (trans. 35-36).
Findings of Fact and Decision
The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A) & (B); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). A free appropriate public education includes education and related services designed to meet the student‟s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) its CSE develops an IEP reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 458 U.S. 176, 206-207 (1982).
In order for a hearing officer to consider, and determine, an impartial hearing request, the dispute between the parties must be “‟real and live‟” not „”academic, or conjectural.‟" Lillbask v. Connecticut Department of Education, 397 F.3d 77, 85 (2nd Cir. 2005)(internal citations omitted). When the issues between the parties are no longer “live,'" the proceeding becomes moot, and "‟the court - whether trial, appellate, or Supreme - loses jurisdiction over the suit, which therefore must be dismissed.‟" Id. When the relief requested in an impartial hearing request is no longer in issue, the hearing request must be dismissed as moot. See Application of a Student with a Disability, Appeal No. 09-032.
The parent is requesting two forms of relief in her hearing request—a P-1 letter with a list of approved schools and an “IEP review.” The Department of Education provided to the parent by mail and on the record a P-1 letter and a list of approved schools. Therefore, there is no longer a dispute between the parent and the School District concerning the provision of the P-1 letter and the list of approved schools. As a result, this claim is moot. With respect to the “IEP review,” the Department had contracted with an outside agency to conduct ‟s evaluation and would be scheduling a CSE meeting upon the completion of the evaluation. Since the “IEP review” issue set forth in the hearing request had not been concluded, it is not moot.
Therefore, for all the above reasons, it is hereby ordered that:
1. The parent‟s request for a P-1 letter with a list of approved schools is moot.
2. The CSE shall cause the evaluation of and the CSE review to be conducted in a timely manner. Dated: July 28, 2011
______________________________
JEAN MARIE BRESCIA, ESQ.
Impartial Hearing Officer JMB:jj
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.