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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 24, 2013
Actual Record Closed Date: September 25, 2013
Hearing Officer: James Walsh, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 24, 2013
Attorney for Parent — Parents
Representative of District and New York — DOE
City — DOE
IHO
The Matter of . (hereinafter referred to as “Student”), came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act, 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York, on September 24, 2013. The undersigned was appointed as the Impartial Hearing Officer authorized to preside over this matter by notice dated June 20, 2013. The Record Close Date is September 25, 2013
The proceeding was initiated by correspondence filed on behalf of Parent by the dated June 18 2013 and received by the Department of Education’s Impartial Hearing Office on that date. Parent’s Due Process Complaint alleges that District failed to offer Student a free, appropriate public education (FAPE) for the 2013-2014 school year and, as a result thereof, demands placement of Student at at District and Department expense or, in the alternative, the issuance of a permitting Parent to place Student in any New York State-approved non-public school at District and Department of Education Expense (Exhibit A).
Student is presently , having been born . Student has been classified as having an . There is no dispute as to the correctness of such classification. During the 2012-2013 school year, Student was placed .
District’s Committee on convened on June 3, 2013 to prepare Student’s program for the 2013-2014 school year. The Committee issued an Individualized Education Program (I.E.P.) for Student that recommended placement in a a Community School with a with the
At the hearing conducted on September 24, 2013, no testimony was received. District advised that District’s Committee had not issued a Final Notice of Recommendation Rather, District’s Committee on had issued a Memo (Exhibit 1), undirected and unsigned, that stated that, in order to be registered, parent and chi8ld had to go to some office in to sign consent and secure placement. Whatever the purpose of such Memo was and to what extent, if any, such memo was authorized or proper, it is my finding that no recommended placement was provided to Student for the 2013-2014 school year. Thus, I find and determine that Parent’s request that I order the issuance of a Letter to be appropriate. As noted by the State Review Officer in Application of Blank, Appeal No 12-039:
The letter remedy authorizes a parent to immediately place the student in an appropriate program in a State-approved non-public school at no cost to the parent (see Jose P. v Ambach, 553 IDELR 298, No. 79 Civ.270 [E.D.N.Y..Jan 5, 1982]). The remedy provided by the Jose P. decision is intended to address those situations in which a student has not been evaluated within 30 days or placed within 60 days of referral to the CSE (id: M.S. v. New York City Dep’t of Educ., 734
F. Supp. 2d 271, 279 [E.D.N.Y. 2010]; see Application of the Bd. of Educ., Appeal No.03-110; Application of a Child with a Appeal No.
02-075; Application of a Child with a Appeal No. 00-092). Therefore, as District has failed to provide Student with a placement within the time constraints established by Commissioner’s Regulation, Parent’s request that District be required to issue Parent shall be granted. I further shall direct that such Letter not be limited in any manner and shall be appropriate for use in a full time . In accordance with the requested relief as contained in Parent’s Due Process Complaint Notice) Exhibit C), such shall be limited to the 2013-2014 school year.
In light of such disposition, I find it unnecessary to address the remaining Parent’s challenges to the actions of District’s C.S.E. or the remaining requests for relief.
ORDER
Based upon the above review, it is HEREBY ORDERED that District issue a to Parent authorizing Parent to immediately place Student in an appropriate program in a State-approved non-public school at no cost to Parent, for the balance of the 2013-2014 school year: and it is
FURTHER ORDERED that such not be limited in any manner and shall be appropriate for use in a full time residential facility. Dated: October 11, 2013
________________________
JAMES P. WALSH, ESQ.
Impartial Hearing Officer JW: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 RECORD SEPTEMBER 24, 2013
A. Parent’s Due Process Complaint Notice, Parent dated 6-18-13 (4 pages; Parents)
B. Student’s I.E.P., dated 6-3-13 Parent (14 pages; Parents)
C. Student’s Report Card from Parent School (1 page; Parents)
1. Memo from Committee on dated 7-5-13 (1 page; DOE)