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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: September 7, 2012
Actual Record Closed Date: September 7, 2012
Hearing Officer: Esther Mora, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMER 7, 2012
CSE Representative Department of Education
This hearing was requested by the parent on July 25, 2012. On July 26, 2012, I scheduled a prehearing conference for August 27, 2012 and the hearing for September 7 and 14, 2012. On August 13, 2012, I received a formal written motion to dismiss from the school district. A prehearing conference was held on August 27, 2012. Subsequently I issued an Interim Order. Part of my order was that the hearing would proceed as scheduled on September 7, 2012.
On September 6, 2012, the parent requested an adjournment, which I denied. On September 7, 2012 the hearing was held. The parent did not appear. The district appeared and presented their case. The testimony and documentary evidence presented by the school district indicate that on August 25, 2012 the parent consented to meet with the school district on September 13, 2012 for a review of the student’s current special education needs. (Exh. 1)
FINDINGS
As was recently set forth in Appeal No. 12-082, when a student in New York is eligible for special education services, the Individuals with Disabilities Education Act (IDEA) calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a school district representative (Educ. Law. § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; 34 CFR 300.151-300.152, 300.506, 300.511; Educ. Law § 4404[1]; 8 NYCRR 200.5[h]-[l])
I find that under the circumstances herein, this matter must be remanded to give the school district an opportunity to meet with the parent on September 13, 2012 to review the student’s current special education needs and to offer a Free and Appropriate Public Education (FAPE).
ORDER
1. This matter is remanded to the school district.
2. The school district and the parent are to meet on September 13, 2012 as set forth in Exhibit 1.
3. If after meeting with the school district the parent remains dissatisfied with the school district’s actions or recommendations, she may request a new hearing.
Dated: September 10, 2012
ESTHER MORA, ESQ.
Impartial Hearing Officer
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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
1. Resolution Documents, 8/25/12 4 pages DOE
2. Impartial Hearing Request, 7/25/12, 5 pages DOE