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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 10, 2013
Actual Record Closed Date: September 14, 2013
Hearing Officer: James P. Walsh, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 10, 2013
Parent of Student — Parents
Brother of Student — Parents
Friend of Parent — Parents
Attorney for Parent — Parents
Representative of District and New York — DOE
City — DOE
Representative of District and New York — DOE
City — DOE
The Matter of . (hereinafter referred to as “Student”), came before me for determination in accordance with the provisions of the Individuals with Education Act, 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York, on September 10, 2013. The undersigned was appointed as the Impartial Hearing Officer authorized to preside over this matter by notice dated July 15, 2013. The Record Close Date is September 14, 2013
The proceeding was initiated by correspondence filed on behalf of Parent by the dated July 12, 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 school years of 2011-2012 and 2012-2013 and, as a result thereof, demands placement of Student at at District and Department expense. Parent seeks an Order directing District and the New York City Department of Education to issue a or, in the alternative an Order directing District to fund Student’s placement at (Exhibit A).
Student is presently years of age, having been born on According to a in February of 2013, it was reported that Student benefit from a residential placement.
District’s Committee on Education (C.S.E.) convened on March 13, 2013 to conduct an Annual review and plan Student’s educational program. The Committee classified Student as
At the hearing conducted on September 10, 2013, no testimony was received. District Representative advised that District’s Committee on Education (C.S.E.) had changed the recommended placement as was set out in Student’s Individualized Education Program (I.E.P.), dated March 13, 2013 (Exhibit C) and had deferred placement to the Central Based Support Team (CBST) for placement in a non-public school on April 18, 2013. District Representative further stated that the CBST had rejected that referral on May 8, 2013 and had returned the matter to District’s C.S.E in May of 2013 with the direction that it find an appropriate placement for Student that was more restrictive than that proposed by the C.S.E. but within the Department of Education’s facilities. District Representative further stated that the District’s C.S.E. had failed to reconvene since receiving that direction from the CBST and that it was admittedly in violation of the time limits established by both Federal and New York State laws for the timely placement of students with . 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 education 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 decision is intended to address those situations in which a student has not been 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 a P-1 () Letter shall be granted. 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 all of 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 P-1() Letter to Parent authorizing Parent to immediately place Student in an appropriate education program in a Stateapproved non-public school at no cost to Parent, for the balance of the 2013-2014 school year. Dated: September 16. 2013
________________________
JAMES P. WALSH, ESQ.
Impartial Hearing Officer
JPW:gc
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 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 10, 2013
A. Parent’s Due Process Complaint Notice, Parent dated 7-12-13 (4 pages; Parents)
B. District’s Answer to Parent’s Due Process Parent Complaint, dated 7-16-13 C 17 D 2 E 5 (3 pages; Parents)
F. N, dated 4-18-13 Parent G 1 dated 6-7-13 H 7 I 10 J 16 K 9 L Not Received M Not Received N Not Received (1 page; Parents)
O. Parent’s Federal Tax return for 2012 Parent (2 pages; Parents)