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: May 7, 2012

Record Close Date: May 7, 2012

Hearing Officer: Barbara J. Ebenstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 7, 2012

Advocate — Student

Parents

Director of Student Services — DOE

Director of Student Services — DOE

This is New York City case # . On May 7, 2012, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act, (“IDEA”) 20 U.S.C. Section 1415(f)(3), regarding the special education of ”) at the New York City Department of Education . The New York City Department of Education (“DOE”) was represented by , Director of Special Services, and the Mother was accompanied by , advocate. A list of witnesses who testified and documents received into evidence is attached to this decision.

ISSUE

The parents requested an impartial hearing by written complaint dated March 6, 2012. (Ex. A) They requested changes to the Individualized Education program, (“IEP”) including measurable goals, and modified promotional criteria. (Ex. A at 3) They also sought an independent educational evaluations in , , and “an evaluation to assess s response to Orton Gillingham.” (Id.) Furthermore, the parents wanted occupational therapy, two hours of special education teacher support services (“SETSS”) per day for five days per week, and reimbursement for tutorial services at an enhanced payment rate. (Id.)

The Department of Education and ’s parents reached a partial resolution agreement that was executed on March 26, 2012. (Ex. I; Tr. 12)

“MS. : Most of these things are part of the resolution agreement.

HEARING OFFICER EBENSTEIN: Okay, and something about receiving a report. That's part of the resolution?

MS. : Yes. Well, the evaluation was part of the resolution.

HEARING OFFICER EBENSTEIN: Fine. And what else is part of the resolution agreement?

MS. : The SETSS extended school year, the makeup for SETSS, and the 12-month

OT services are part of the agreement. The vision therapy is part of the agreement eval, and an IEP, another IEP meeting to develop measurable goals.

HEARING OFFICER EBENSTEIN: So then the only thing that's left before me that's not in the resolution session agreement is the tutoring, is that correct?

MS. : No, ma'am, it's also the enhanced rate and--I'm sorry, I don't mean to slow things down--the resolution agreement, through my ignorance and naivety, was signed without dates for completion on these items.

HEARING OFFICER EBENSTEIN: There's nothing I can do about--in other words, if you've already signed the resolution agreement, and you're both living by it, and it hasn't been withdrawn, then the resolution agreement stands.”

(Tr. 16-18)

The parents request that I enforce the resolution agreement. The only other issues before me is whether the parents are entitled to reimbursement for private tutoring and an enhanced payment rate for it.

THE PARENT’S POSITION

The parents believe that the Department of Education failed to offer a “free and appropriate public education” (“FAPE”) to . from November 2008 to March 2009. (Tr. 7, 10-11)

“HEARING OFFICER EBENSTEIN: Thank you. I have questions based on the two opening statements. Number one, parent's advocate talked about 11-2008 to March 26, 2009, what was--that there was a denial of FAPE.

MS. : Right.

HEARING OFFICER EBENSTEIN: It started at what date?

MS. : It started on November of 2008 when the parent--

HEARING OFFICER EBENSTEIN: (Interposing) I'm not asking when, any details.

I'm simply getting straight facts and dates.

MS. : Okay, sorry.

HEARING OFFICER EBENSTEIN: Okay. The date is November 2008, which is past the statute of limitations. Are you going to present something that will permit me to go past the statute of limitations?

MS. : I don't understand the question.

HEARING OFFICER EBENSTEIN: Thank you.

(Tr. 10-11) The parents contend they are entitled to reimbursement of the cost of private tutoring, and that they need an enhanced payment rate for it.

DEPARTMENT OF EDUCATION’S POSITION

The Department of Education contends that it is providing FAPE to G., and that tutoring is not needed. (Tr. 6) The Department of Education did not enter any evidence or call any witnesses in this impartial hearing.

FINDINGS OF FACT

”). (Tr. 7) Classification is not at issue in this impartial hearing. attends an ICT class in a public school. (Tr. 6)

The parents obtained a private evaluation conducted by Dr. dated March 16, 2011. (Ex. G, Tr. 19) I note that this evaluation does not report standardized scores on any subtests of the instruments administered. It merely reports some overall scores and percentile rankings. The document in evidence in this impartial hearing is the full evaluation report as written so no pages are missing. (Tr. 23) The omissions make it impossible to determine ’s strengths and weaknesses based on this evaluation. Furthermore, this evaluator makes recommendations that are not supported by scores on standardized instruments. I find this document to be insufficient and unreliable as a matter of fact. I gave it little weight.

The parents signed a contract with a private tutoring business, on December 7, 2011 before the CSE convened for . (Ex. J) There is no documentary evidence or testimony in this impartial hearing to establish that the parents provided proper notice that they intended to obtain private tutoring services and request reimbursement from the Department of Education. As the parents began the tutoring prior to the December 2011 and January 2012 CSE meetings, I find that the parents did not obtain private tutoring because they found the current IEP insufficient as a matter of fact.

Booksmart assists with homework, but it does not follow any curriculum. (Tr. 48-9) The Mother stated that uses certified teachers, but there is no evidence to establish who tutors , his or her qualifications, the frequency or length of the tutoring sessions, nor the training and certification of the tutor who works with . No one from testified, and there are no progress reports or other documents from in this impartial hearing other than the contract. (Tr. 45)

The Department of Education conducted an educational evaluation dated December 8, 2011. As the New York State IEP form does not include the date of the CSE meeting on the front page, there is some confusion as to the dates of the CSE meetings for . Testimony established that the CSE convened on December 5, 2011 and developed an IEP for although there is no date on the IEP and no attendance sheet. (Ex. F) There was testimony that the CSE reconvened on January 26, 2012 and January 16, 2012 to add SETSS, but the attendance sheet is dated January 19, 2012. (Ex. E at 12) Based upon the record before me, I cannot discern when the CSE convened for .

CONCLUSIONS OF LAW

The parents made no claim that there is a current denial of FAPE. The parents did claim a denial of FAPE from November 2008 to March 2009. As they filed an impartial hearing complaint on March 6, 2012, their claim is a year beyond the statute of limitations and they have offered no argument that the statute of limitations should be extended in this case. I find that their claim is beyond the statute of limitations, and therefore, I will not consider it.

The parents also requested that this impartial hearing officer enforce the resolution agreement. 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)(4) Impartial hearing officers and the New York State Review Office do not have authority to review matters resolved in a resolution agreement. See Application of a Student with a Disability, SRO Appeal No. 09-112 Case law further establishes that the New York State Commissioner of Education does not have jurisdiction to hear matters resolved in a resolution agreement either:

“An appeal to the Commissioner of Education is not the proper forum to challenge a written settlement agreement reached at a resolution session scheduled in response to a request for an impartial hearing pursuant to the federal Individuals with Disabilities Education Act (“IDEA”) 20 USC §1415(f)(1)(B) and Education Law §4404(1)(b). Such agreements are enforceable in any State court of competent jurisdiction or in a United States district court (20 USC

§1415[f][1][B][iii][II]; Education Law §4404[1][b]). Accordingly, the appeal must be dismissed for lack of jurisdiction.”Appeal of RUTH RADOW from action of the Board of Education of the Lawrence Union Free School District regarding expenditure of funds. Decision No. 15,824

(August 20, 2008)

In the instant case, I find that I have no authority to review the resolution agreement and enforce its terms.

CONCLUSION

Based upon the record in this matter, I find that the parents’ claims are entirely without merit. There is no order. Dated: May 14, 2012

________________________________

BARBARA J. EBENSTEIN, ESQ.

Impartial Hearing Officer

BE:dl

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 ON MAY 7, 2012

PARENT

A Impartial Hearing Request, dated 3/6/12, 3 pages B Overnight Mail Receipt, dated 3/6/12, 1 page C Tracking Receipt, dated 3/6/12, 1 page D Return Receipt Acceptance, dated 3/6/12, 1 page E IEP attendance sheet, Undated, 12 pages F IEP, Undated, 8 pages G Exam, dated 3/16/11, 6 pages H Education Evaluation, dated 12/8/11, 2 pages I Resolution Agreement, dated 3/26/12, 3 pages J Tutor Contract, dated 12/7/11, 1 page K Copies of Cancelled Checks, Various dates, 3 pages

DEPARTMENT OF EDUCATION

None