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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: July 8, 2013
Actual Record Closed Date: July 31, 2013
Hearing Officer: Dora Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 8, 2013
JUBY SHAPIRO, Advocate — Student
The parents of filed a request for an impartial hearing on April 23, 2013 seeking funding for their son’s unilateral placement for the 2010-2011 school year, during a time period when an order of pendency, made during earlier proceedings, provided that this was his pendency placement. (Par. Ex. A).[1] I was designated to hear this matter on April 25, 2013. The compliance date was extended on two occasions due to the complexity of the issues, with a final compliance date of September 6, 2013. (IHO Ex. II, III).
EVIDENCE AT HEARING
The parents introduced into evidence a transcript of the proceedings on October 18, 2010, before Impartial Hearing Officer (IHO) James Walsh. On that date, both parties agreed that the student’s pendency placement was derived from a January 13, 2010 Individualized Education Program (IEP). (Par. Ex. G at 6 [page 11 of the transcript]). IHO Walsh ruled that pendency would be effective from September 21, 2010, the date the complaint was filed. (Id. at 7 [page 14 of transcript]). Thereafter, on October 20, 2013, IHO Walsh issued a written Interim Decision Regarding Pendency ruling that during the pendency of the proceedings, the student’s program is in a with the services of a week with related services of ,
, the parents’ advocate, testified that she appeared before IHO Walsh for the pendency hearing, and that pendency was not contested. (Tr. p. 6).
She testified that her next communication was from , stating that the Department of Education (“DOE”) would not honor the bill, because the Order of Pendency was not entered in “the system”. Ms. also submitted email correspondence between the school and , a DOE employee. Ms. wrote on March 17, 2011, that the hearing officer had not yet issued an interim/pendency order. (Par. Ex. C).
Ms. testified that during the Spring of 2011, she was also in communication with IHO Walsh, who stated that he had submitted the pendency order. (Tr. p. 8). She called the Impartial Hearing Office to ask for the pendency order and the transcript of the hearing. She testified that she did not receive the transcript of the October 18, 2010 hearing until May 10, 2012. (Tr. p. 9; Par. Ex. E). In the fall of 2012, she contacted IHO Walsh. He told her that he had submitted the pendency order, and that he would send it again. Nevertheless, it did not get “into the system”. Ms. spoke with the decision manager, who informed her that she did not find a record of a decision being received. (Tr. p. 10). By email dated March 7, 2013, the decision manager informed Ms. that since the case had been withdrawn, there were no further steps that she could take. (Par. Ex. F).
Ms. testified that sometime between March 2013 and April 23, 2013 (the date she filed the instant complaint), Mr. handed her a signed copy of his decision, which she then supplied to the case manager who said “sure, we’re going to put it in”. (Tr. pp. 11-12). She testified that the decision was scanned and she believed it had been taken care of. She was later informed, by the Impartial Hearing Office, that as the decision was old and outdated, nothing could be done about it now. (Tr. p. 13).Ms. testified that up until that point, she was under the impression that the matter was being resolved. (Tr. p. 17)
, the DOE representative, stated that she consulted with legal counsel and was informed that a pendency order is only in effect while the case is pending. (Tr. p. 18). This was the only explanation offered by the DOE for its failure to honor IHO pendency order.
Ms. clarified that the student had left the school before she withdraw the original hearing request. (Tr. pp. 19-20).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
The transcript of the prior proceedings reflects that on October 18, 2010 the parties agreed to the student’s pendency placement, and that IHO made a ruling as to the pendency placement, on the record of the proceedings, and his written order. The DOE has failed to honor IHO order because it was not entered in the system of the Impartial Hearing Office in a timely fashion.[2] The efforts of the advocate and IHO to enter the order in the system, so that the order would be honored, have been unavailing.
Nevertheless, I have no power to enforce an order of another hearing officer. See A.R. ex rel. R.V. v. New York City Dept. Of Educ., 407 F. 3d 65, 78 n. 13 (2d Cir. 2005). The enforcement of an impartial hearing officer’s order can properly be sought in federal court. Application of a Child with a ,. Appeal No. 06-130; Application of a Child with a , Appeal No. 04-077.
ORDER
For all of the foregoing reasons, it is hereby ordered that the parents’ due process complaint is dismissed. Dated: August 20, 2013
______________________
DORA LASSINGER, ESQ.
Impartial Hearing Officer DL:mv
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
PARENT
A Impartial hearing request, dated 4/23/13, 3 pages B Interim decision regarding pendency, dated 10/20/10, 7 pages C E-mail, dated 3/17/11, 1 page D Dated 5/10/12, re: 3/24/11 transcript, 1 page E Dated 5/10/12, re: 10/18/20, 1 page F E-mail to advocate, dated 3/7/13, 1 page G Transcript, 10/18/20, 8 pp. HEARING OFFICER. I Pre-hearing conference summary, dated 5/29/13, 1 page II Case follow-up sheet w/attachment granting extension, dated 6/5/13 III Case follow-up sheet, dated 7/8/13
Footnotes
[1] The complaint alleges that the parents initially filed their earlier due process request on September 20, 2010, and withdrew the complaint without prejudice on May 3, 2011. It further alleges that the last date the student attended school was April 15, 2011. The complaint alleges that due to an error, the prior IHO’s pendency order was never uploaded in the IH system and the school he attended pursuant to that order was never compensated for the time it serviced the student during the 2010-2011 school year.
[2] The DOE’s argument that the student was not entitled to funding because the earlier hearing was withdrawn is without merit. The student was entitled to funding, in the agreed upon program, during the pendency of the due process proceedings. See Board of Education of the Pawling Central School District v. Schutz, 290 F. 3d 476 (2d Cir. 2002). The complaint alleges that the student withdrew from the program on April 15, 2011; and that the proceedings were not withdrawn until May 3, 2011.