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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: August 21, 2013
Actual Record osed Date: September 4, 2013
Hearing Officer: Israel Wahrman, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 21, 2013
and Student: — Parents
Anton Papakhin, Esq., Attorney — Parents
On July 8, 2012, I was designated as impartial hearing officer for this matter, pursuant to the Individua Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of Christopher L. v. the New York City Department of Education (DOE). In a request dated July 1, 2012, and received by New York City DOE’s Impartial Hearing Office on July 2, 2012, Attorney Anton Papakhin, on behalf of the parents of , had requested an impartial hearing. His request asked that the DOE contract with the , for the 2013-2014 school year. The request ao maintained that is ’s pendency placement. Exhibit A. An Impartial Hearing was held on August 21, 2012.
FINDINGS OF FACT
The following facts are not in dispute. has been attending since an IHO decision in April, 2013, which ordered the DOE to issue a P-1 ). Exhibit C. has not been given any placement by the DOE since the DOE’s recommendation of to find a school. Tr. 58.
CONUSIONS OF LAW
The New York City Department of Education has, for many years, been required by court order to provide a letter authorizing parents to enroll their child in state approved program for the if a program has not been offered within sixty days. Jose P. v. Ambach, 79 Civ, 270 (USDC EDNY), Master’s Report No. 8 (12/14/81) with Appendix, Exhibits 1 and 2, executed by Eugene H. , USDJ (1/5/82). Such letters have come to be known, in common parlance, as “P-1” or “ .”
In Jose P. v. Ambach, Ibid at 4, in summarizing the problem that lead to ordering letters, it was noted that “303 children have been waiting for placements in day and residential non-public schoo for over 60 days.” In the sample form appended as Exhibit 1 no distinction was made exuding residential placements from the requirement to issue such an order.
Similarly, in Jose P. v. Ambach, 79 Civ, 270 (USDC EDNY), Order dated 7/2/82, at Exhibit 1, no distinction is made with regard to residential school programs.
The pendency provisions of the IDEA and the New York State Education Law require that a child remain in his or her then current placement, unless the child’s parents and the school district otherwise agree, during the pendency of any proceedings relating to the identification, or placement of the child. 20 U.S.C. §1415; N.Y. Educ. Law §4404(4). The inquiry focuses on identifying the child’s then current educational placement at the moment when the impartial hearing was requested. See Zvi D. v. Ambach, 694 F.2d 904, 906 (2nd Cir. 1982); Arlington Central School District v. L.P., 421 F. Supp. 2nd 692, 696 (S.D.N.Y. 2006); Application of a Child with a , Appeal No. 07-063. The phrase “then current placement” has been found to mean the last agreed upon placement at the moment when the parent requested the hearing. Murphy v. Arlington Central School District, 86 F. Supp. 2d 354, 359 (S.D.N.Y. 2000), aff’d 297 F.3d 195 (2nd Cir. 2002). In most cases, the pendency placement will be the student’s last unchallenged IEP. This placement can be changed by: (1) an agreement between the parents and the school district; (2) an unappealed decision of a hearing officer; (3) a decision of a state review officer that agrees with the parents; or (4) a determination by a court on appeal from a state review officer’s decision. Arlington Central School District v. L.P., 421 F. Supp. 2d at 696. “The purpose of the pendency provision is to provide stability and consistency in the education of a student with a .” Ibid. A prior unappealed impartial hearing officer’s decision may establish a student’s current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at 23; Letter to Hampden, 49 IDELR 197 [OSEP 2007].
While an unappealed impartial hearing officer’s decision may establish a student’s educational placement for purposes of pendency, as indicated above, it is certainly not the only way to determine what is the then current educational placement which statute requires be preserved during litigation challenging what is the appropriate program.
In Mackey v. Board of Educ., 386 F. 3d 158, 163 (2d Cir. 2004), the court listed the following ways to define “then current educational placement,” as defined by various circuits:
(1) "typically the placement described in the child's most recently implemented IEP," Johnson v. Educ. Hearing Office, 287 F.3d 1176, 1180 (9th Cir.2002); (2)
"the operative placement actually functioning at the time ... when the stay put provision of the IDEA was invoked," Drinker v. Colonial Sch. Dist., 78 F.3d 859, 867 (3d Cir.1996); and (3) "[the placement at the time of] the previously implemented IEP," Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625 (6th
Cir.1990).
As the third circuit explained in Drinker, citing an earlier Third Circuit decision, “the dispositive factor in deciding a child’s ‘then current educational placement’ should be the Individualized Education Program … actually functioning when the ‘stay put’ is invoked,” at 867.
The “stay put” provision resulting from Pendency occurs at the time of filing for an Impartial Hearing and not when a parent puts a school system on notice of the aim for Pendency services. Weaver v. Millbrook, 812 F. Supp. 2d 514 (U.S. District Court
SDNY 2011), 526-527.
In light of the violation of mandated timelines, the DOE should issue a letter allowing the parents of to register him at a state approved residential school, as required by the above and other cases. Pendency is at as this is the school that has been attending.
DECISION AND ORDER
The DOE has not fulfilled the requirement of offering a placement within the mandated timelines. Therefore, in accordance with the case law, the following is ordered:
The Department of Education shall, upon receipt of this order, issue a “ letter” allowing the parent to enroll in a New York State approved residential education school for the 2013-14 school year, with this attendance to be funded by the DOE.
Pendency is at ; so the DOE is responsible for funding the costs of ’s attendance at , from the date of filing of the request for an impartial hearing, until such time as is placed pursuant to this Order. Dated: September 5, 2013
______________________________
ISRAEL S. WAHRMAN, ESQ. IW:mv Impartial Hearing Officer
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 Individua 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 exuded 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 inuded with this decision. Directions and forms can ao be found in the Office of State Review website: www.sro.nysed.gov/appea.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Impartial Hearing Request, dated 7/1/13, 2 pages B DOE Due Process Response, dated 7/11/13, 3 pages C Findings of Fact and Decision , dated 4/12/13, 7 pages