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ORDER OF DISMISSAL
Case Number:
Student’s Name:
Date of Birth:
District:
Date of Hearing: November 8, 2013
Hearing Requested By: November 8, 2013
Hearing Officer: Edgar De Leon, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
Hearing Officer’s Order of Dismissal 1
Name Title For Date DOE Representative DOE 11/08/13 Advocate PARENT 11/08/13
(Failed to Appear)
Hearing Officer’s Order of Dismissal 2
On October 16, 2013, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 of the Regulations of the New York State Commissioner of Education, concerning a dispute between the Parent of a (2) year old student attending now attending a public school and the New York City Department of Education (“DOE”) - District: 24, regarding that student’s special education program. I was appointed after the recusal of at least one other IHO. After the “Resolution Period” ended a pre-hearing conference was requested by the Parent and scheduled for November 8, 2013. A list of the persons appearing as witnesses at the hearing and the documents taken into evidence is annexed hereto.
BACKGROUND
This case was initiated as the result of a written Due Process Complaint (“DPC”) made by the Parent and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about July 10, 2013. In the DPC, the Parent allegations include, but are not limited to, (1) that the student is being home schooled, (2) that the Doe did not implement the student’s IEP, (3) that the student is on , and (4) that the student should receive (7.5) hours per week of home .
ORDER OF DISMISSAL
The Parent did not appear at the pre-hearing conference. The hearing was scheduled to begin at 11:00 AM. The DOE representative and the undersigned IHO awaited the Parent’s arrival until 11:15 AM when the case was called. The Parent did not request an adjournment of the November 8, 2013 pre-hearing conference date which was scheduled at his request.
As a general matter, the parties to an impartial hearing are obligated to comply with the reasonable directives of the impartial hearing officer regarding the conduct of the impartial hearing. (SRO No. 05-026, 04-103 and 04-061). An impartial hearing officer is authorized to administer oaths and to issue subpoenas in connection with the administrative proceeding. (8 NYCRR 200.5[j][3][iv]) An impartial hearing officer may ask questions of attorneys or witnesses for the purposes of clarification or completeness Hearing Officer’s Order of Dismissal 3 of the hearing record. (8 NYCRR 200.5[j][3][vii]) The parents, school authorities, and their respective attorneys or representatives, shall have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses at the impartial hearing. (8 NYCRR 200.5[j][3][xii]) The impartial hearing officer may take direct testimony by affidavit in lieu of in-hearing testimony, provided that the witness giving such testimony shall be made available for cross-examination. (8 NYCRR 200.5[j][3][xii][f])
An impartial hearing officer may require the parties to be present at the impartial hearing. (8 NYCRR 200.5(j)(3)(xiii) A “pre-hearing conference” is a reasonably intended procedure to move the hearing along in an organized and expeditious manner. It is within the impartial hearing officer’s discretion to conduct a pre-hearing conference. A Parent’s disagreement with the impartial hearing officer’s decision to conduct a prehearing conference does not excuse her unwillingness to participate. (SRO No. 04-010)
The impartial hearing officer's dismissal of the due process complaint with prejudice, based on the failure of the party to comply with reasonable directives issued during the proceeding, has been adjudged appropriate. (SRO No. 04-061)
At the pre-hearing conference, the DOE representative advised that the student is in fact attending a public school in a ; setting.
For all of the reasons stated above, I dismiss the Parent’s DPC, without prejudice. If at some future point during the school year the Parent wishes to reinstate the request, he may do so by requesting a new hearing. Dated: November 14, 2013
__________________________
EDGAR DE LEON, ESQ
Impartial Hearing Officer
EDL:gc Hearing Officer’s Order of Dismissal 4
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. Hearing Officer’s Order of Dismissal 5
DOCUMENTATION ENTERED INTO RECORD
Number/Letter Title Dated For # of Pages
N/A N/A N/A DOE N/A
N/A N/A N/A PARENT N/A