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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: February 14, 2013
April 29, 2013
June 4, 2013
June 14, 2013
Actual Record Closed Date: July 22, 2013
Hearing Officer: James P. Walsh, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 14, 2013
Celeste Green Parent — Parents
Anton Papakhin, Esq. Attorney for Parent — Parents
DOE
City — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 29, 2013
Parent — Parents
Anton Papakhin, Esq. Attorney for Parent — Parents
John Karl Alvin, Esq., Attorney for District and New York City DOE
Department of Education
DOE
(by phone)
NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 4, 2013
Parent — Parents
Anton Papakhin, Esq Attorney for Parent — Parents
Joshua Feuer, Esq. Attorney for District and New York City Department of Education (by phone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 14, 2013
Parent — Parents
Anton Papakhin, Esq. Attorney for Parent — Parents
(by phone) — Parents
John Karl Alvin, Esq., Attorney for District and New York City DOE
Department of Education
The Matter of ., (hereinafter referred to as “Student”), came before me for determination in accordance with the provisions of the ct, 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York, on February 14, 2013, for a determination of the program to which the Student was entitled to receive during the pendency of this proceeding. Thereafter, by Interim Order on Pendency, dated February 28, 2013, it was ordered that Student be provided with her continued placement at The with the full implementation of her program, including, where appropriate, the use of Addition hearings were thereafter held on April 29, 2013, June 4, 2013 and June 14, 2013. The June 4, 2013 hearing was of Department Counsel.
The undersigned had been appointed, after the recusal by one or more Impartial Hearing Officers who were previously assigned, as the Impartial Hearing Officer authorized to preside over this matter, by notice from the New York City Department of Education’s Impartial Hearing Office, dated December 3, 2013. After the conclusion of proceedings on June 14, 2013, both attorneys requested the opportunity to await receipt of the Transcript of the last date of hearing and, thereafter submit a Post-Hearing brief for my consideration. Those requests were granted and a submission date of July 17, 2013 was established. Thereafter, at the joint request of the attorneys, that submission date was extended to July 18, 2013. A Post-Hearing brief was timely submitted by District’s counsel and has been reviewed and considered. However, the request that such PostHearing brief by marked as an exhibit and made part of the record is denied. The PostHearing brief submitted by Parent’s counsel was not timely submitted and has, for that reason, not been read or considered. Also additional exhibits proposed by Parent’s counsel after the last date of hearing were not accepted. The Record Close Date was July 22, 2013.
The proceeding was initiated by correspondence filed on behalf of Parent by the Law Office of Anton Papakhin, P.C., dated October 25, 2012 and received by the Department of Education’s Impartial Hearing Office on that date. Parent’s Due Process Complaint (Exhibit A) alleges that District failed to offer for the 2012-2013 school year in that its Committee on Special Education (C.S.E.), at its meeting of October 17, 2012, failed to continue authorization for the utilization of Student is presently , having been born on Student has been , (Exhibit 5). (Exhibit O). Student was placed by District at The on February 25, 2005 and such has been her educational placement since that date. .The Record contains voluminous records and reports regarding Student’s functioning at The among other positive avenues, the
As background, it appears that Parent had commenced a Due Process proceeding challenging sometime in 2012, as a result of which Findings of Fact and Decision was issued by Impartial Hearing Officer Kafer, in which it was ordered that the Department of Education reconvene and develop an appropriate I.E.P. for the 2012-2013 school year, and that, if the Department of Education considered the removal of from the I.E.P. it follow and comply with the procedures set forth in the NYS Department of Education regulations (Exhibit E). It is presumed that the Order referred to Commissioner’s Regulations Part 200.22(e) 8 NYCRR 200.22(e). However, according to the testimony of the Committee on Special Education had already submitted a Application Pursuant to 8 NYCRR 200.22(e) on June 19, 2012 (T.R.100).. Witness further testified that a Response from the State Education Department had been received by the Committee sometime in September of 2012 (T.R.99).
District’s did reconvene on October 17, 2012, presumably in compliance with the Order of Hearing Officer Kafer (Exhibit E) and prepared an I.E.P. (Exhibit 1) that continued Student’s placement, classification and program and added the services of a (Exhibit 1). The I.E.P., did not include any authorization for the continued use of . Witness testified that the Committee , at its October 17, 2012 meeting, had considered whether to put on Student’s I.E.P. (T.R.106); that Ms. ad expressed her concern that the was unsafe (T.R.116); and that that neither the personnel from who were participating in the meeting by telephone nor Parent raised any objection to the Committee not adding to the I.E.P. (T.R.120). However, according to the testimony of both the meeting had lasted either five or six minutes (T.R.228 and T.R. 263). testified that the participants were advised that the meeting was being held because there had been an Order to put The on the Final Notice of Recommendation. The participants were also advised that an eighthour had been added to Student’s I.E.P. (T.R.228-229).. Witness further testified that nothing was mentioned about the being left in the I.E.P., which caused Ms to email Ms. to inquire if the Committee was leaving such in the I.E.P.(T.R.229-230). It was such witness’ further testimony that Ms. wrote back that the use of the was not being left in the I.E.P., as that was not part of the Order (T.R. 130-131). Witness , who had also participated in the October 17, 2012 meeting, confirmed the testimony of Witness , and stated that the use of the was not discussed (T.R.203-204)
It is my finding that the testimonies of Witnesses are credible and are accepted as accurately depicting the areas of discussion at the October 17, 2012 meeting. I reject the testimony of Witness as inaccurate and not worthy of belief. I further find that no discussion was had at the October 17, 2012 meeting regarding either the inclusion or deletion of as a necessary part of . I further find that Ms. , in light of the fact that the subject of adding or deleting authorization for the use of had not been raised at the meeting, had no authority to simply decide and determine that would not be placed in Student’s I.E.P. The failure of the Committee to discuss the addition or deletion of at the October 17, 2012 meeting significantly impeded – indeed deprived – Parent the opportunity to participate in the decision-making process to the degree that it deprived Student education (8 NYCRR 200.5(4)(ii)).
Thus, it is my finding that such determination as was made by Ms. that aversive interventions would not be a part of Student’s I.E.P. or , deprived I further find and determine that the I.E.P. developed at the October 17, 2012 meeting (Exhibit 1) is void.
While not germane to this Decision, I note that the as prepared by Witness and submitted to the State Education Department (Exhibit 15) was grossly improper and deceptive, failing to provide accurate or complete information and appears to have been deliberately prepared to thwart any real review of Student’s need for the continued utilization of
There were many arguments raised in this proceeding and addressed in District’s long Post-Hearing brief that I now find were unnecessary in light of the fact that the 2012-2013 school year has come to an end. Parent’s counsel stated that Parent agreed with all of the recommendations made by the Committee on Special Education except for the omission of authorization to continue the use of –namely Hearing Officer Kafer’s Decision (Exhibit E) ordered, among other things, the continuation of the provisions of an I.E.P. that authorized the use of such My Interim Order on Pendency continued the use of such – an Order that remains in effect. Thus, nothing could be awarded to Parent by a Decision issued now that Parent has not fully already received. As noted by the Office of State Review on a number of occasions, issues that no longer remain viable due to the passage of time become moot (Application of (Blank) , Appeal No. 11-076; Application of (Blank) Appeal No. 097; Application of (Blank), Appeal No. 11-099). It was noted by the State Review Officer in Application of (Blank), Appeal No. 11-099:
“In this case, there is no longer any controversy relating to the parties’ dispute over the placement or program offered by the district for the 2010-2011 school year. Here, even if a determination on the merits demonstrated that the district did offer the student a for the 2010-2011 school year, in this instance, it would have no actual effect on the parties because the 2010-2011 school year expired on June 30, 3011, and the student remained entitled to his pendency placement at funded by district through the conclusion of the administrative due process.”
11-099 at p.6 See also those cases cited by the State Review Officer in each of the above-cited decisions. As the issue that was raised by Parent in her Due Process Complaint no longer remains viable due to the passage of time, it is my finding that such issue has now become moot. However, such finding should not be considered as a finding that Parent is not the prevailing party.
ORDER
Based upon the above review, it is HEREBY ORDERED that Parent’s Complaint be, and the same hereby is, DISMISSED as moot Dated: August 1, 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 THE RECORD
A. Parent’s Due Process Complaint Notice, Parent dated 10-25-12 (5 pages; Parents)
B. Student’s I.E.P., dated 4-29-10 Parent (11 pages; Parents)
C. Student’s I.E.P., dated 7-30-12 Parent (16 pages; Parents)
D. Statement of Agreement and Order by I.H.O. Parent, dated 10-5-11, in Case #133755 (5 pages; Parents)
E. Findings of Fact and Decision by I.H.O. Parent dated 9-17-12, in Case #1394769 (5 pages; Parents)
F. Student’s Quarterly Progress from The Parent for the Period June 10, 2012 through September 8, 2012 (10 pages; Parents)
G. dated 6-20-12 (9 pages; Parents)
H. Student’s Weekly Behavioral Charts from The Parent for the Period from 3-20-2100 to 2-17-13 (15); Daily Chart for same period (2); Weekly Chart for Same Period (3); Daily Chart for Same Period (1) (21 pages; Parents)
I. Student’s Program Description from, dated 2-11-13 (6 pages; Parents)
J. Student’s Treatment Summary by dated2-11-13 (2 pages; Parents)
K. Student’s Medical Summary by, dated July 2012 (2 pages; Parents)
L. , dated 7-21-12 (1 page; Parents)
M. Student’s Report Card and Student Transcript Parent Form for the 2011-2012 School Year (1 page; Parents)
N. Student’s Classroom Schedule – undated Parent (1 page; Parents)
O. Student’s Proposed Parent (35 pages; Parents)
P. Affidavit of Parent sworn to on 9-5-12 (5 pages; Parents)
Q. Order of the Parent Department, dated 9-12-12 (2 pages; Parents)
DOCUMENTATION ENTERED INTO RECORD APRIL 29, 2014
1. Student’s I.E.P. as Prepared by District’s 10-17-[12] (15 pages; DOE)
2. Final Notice of Recommendation, dated 10-17-12 (1 page; DOE)
3. Meeting Minutes of 10-17-12 (2 pages; DOE)
4. Update, dated 1-12-12 (2 pages; DOE)
5. Report, dated 3-27-12 (5 pages; DOE)
6. Student’s I.E.P. as Prepared by District’s on 7-30-12 (16 pages; DOE)
7. Student’s I.E.P. as Prepared by District’s on 3-28-12 (16 pages; DOE)
8. Minutes of. Meeting of 3-28-12 (3 pages; DOE)
9. Quarterly Report for the Period of 9-11-11 to 12-10-121 from the (13 pages; DOE)
10. Quarterly Report for the Period of 12-11 to 3-10-12 from the (14 pages; DOE)
11. Medical Summary by., dated May 2011 (2 pages; DOE)
13. , dated 6-23-11 (10 pages; DOE)
14 2 DOE
dated 4-2-12
15 8 , dated DOE
6-19-12
16 4 Letter from , New York State DOE
Education Department to Deputy
Executive Director of Committees on Special
Education, NYC Department of Education, dated
3-13-13 (2); Copy of letter to ,
Executive Director, District
Director, Food and Drug Administration, dated
12-6-12 (2)
Footnotes
[12] 3 , for 2012- DOE 2013 School Year