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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parents
Date of Hearing: October 17, 2013
Actual Record Closed Date: October 26, 2013
Hearing Officer: Judith Schneider, Esq.
CORRECTED: November 1, 2013
NAMES AND TITLES OF PERSONS WHO APPEARED
Attorney — Parents
DOE
On October 17, 2013, I conducted an Impartial Hearing at the York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of York, regarding the program of XXX (“the student”).
Procedural History
The proceeding was initiated at the request of the parent by correspondence dated June 20, 2013. (Ex. A) I was appointed Impartial Hearing Officer (“IHO”) on August 8, 2013, after the recusal of one or more hearing officers. I scheduled a telephone conference for August 15, 2013. The telephone conference, however, was held on September 11, 2013.[1] At that conference, the hearing was scheduled for October 17, 2013, the first mutually available date for the parties, their witnesses and the hearing officer. (T. 5-6
The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and written decisions were provided to the parties. (T. 5, 17-18, Ex. I)
The current compliance date is December 3, 2013. The record closed on October 26, 2013, upon my receipt of the transcript.
Positions of the Parties
This matter concerns the student’s program and placement during the 2012-2013 and 2013-2014 school years.
Parents: In their June 20, 2013 complaint the parents asserted two separate claims (T. 8-12):
Claim 1: The CSE had convened on December 13, 2012 to develop an IEP for the remainder of the 2012-2013 school year and for part of the 2013-2014 school year. At that time the student was enrolled in a day program at a non-public school approved by the York State Education Department as a school with which a district could contract for the delivery of special education services (“NPS”) and that recommendation was continued by the CSE. The parents claimed that the December 13, 2013 IEP was procedurally and substantively defective and that the proposed placement was not appropriate. The parents claimed student entitlement to DOE funding for a residential placement at the an NPS located .
Claim 2: The parents sought evaluations and a reconvene of the CSE by letter received by the CSE on February 4, 2013, which reported that the student had made no progress in the recommended placement and that he was
DOE: At the hearing, the DOE conceded that it failed to reconvene although an appropriate request was made as stated in Claim 2 above. The DOE conceded that it had not provided a free appropriate public education (FAPE) as a consequence of the failure to reconvene. It stated, however, that it was not conceding any claims concerning the December 13, 2012 review. (T. 13-14)
The parents thereupon elected for the purposes of this proceeding to withdraw without prejudice all claims in this proceeding concerning the December 13, 2012 CSE review and IEP and the DOE consented to the withdrawal without prejudice of Claim 1. (T. 1213)
Accordingly, the sole issue before me in this matter is the appropriate relief for the failure to reconvene.
Findings of Fact and Conclusions of Law
The DOE has agreed that a reconvene of the CSE was required and had not been timely conducted. I note with regard to this issue that more than 4 ½ months elapsed prior to the filing of the instant complaint on June 20, 2013. I also note that this claim was again brought to the attention of the DOE by the filing of the instant complaint, that a resolution period was provided and resulted in neither a resolution agreement nor a review and that was thereafter conducted following the conclusion of the resolution period. (T. 14-15)
Pursuant to Jose P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y.] January 5, 1982 and subsequent Order(dated July 2, 1982), and Stipulation (dated August 3, 1988), in the foregoing circumstances the student is entitled to authorization to attend any NPS selected by the parents. (Exs. M, N,O)
ORDER
The DOE shall immediately issue a P-1 authorization (also known as a Nickerson letter) enabling the student to attend for the 2013-2014 school year at DOE expense any NPS, including residential, selected by the parent.
Dated: October 28, 2013 Corrected: November 1, 2013 (to include residential NPS In ORDER)
______________________________
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
DOCUMENTS ENTERED INTO THE RECORD
J. pgs. (7 pages; Parents)
K. pgs. L Parents M Jose P. v. Ambach Dec., 12/14/81 & 1/5/82, 21 pgs. Parents N Jose P. v. Ambach, Additional Order, 7/2/82, 7 pgs. Parents O Jose P. v. Ambach Stipulation, 7/28/88, 5 pgs. Parents P Parent’s Income Tax 1040, 2/27/13, 2 pgs. Parents I Compliance Date Decisions Impartial Hearing Officer (11 pages; Parents)
Footnotes
[1] Subsequent to appointment, my circumstances with regard to availability had changed and on August 15th I informed the Impartial Hearing Office by e-mail that I was recusing from this matter. On September 9, 2013, I learned that the hearing office had never processed the recusal and therefore I was still IHO of record. By that time my circumstances had again changed and there were also ongoing difficulties with regard to the availability of IHOs which could have resulted in substantial additional delay. Discussion with the parties and the hearing office on September 11, 2013 resulted in the agreement by all involved that I remain IHO. (T. 5-6)