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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: May 20, 2013
Actual Record Closed Date: May 28, 2013
Hearing Officer: Dora Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 28, 2013
ANTON PAPAKHIN, Attorney — Student
Parents
Representative — DOE
Education Administrator, (Via — DOE
Telephone) — DOE
The parent of filed a request for an impartial hearing on March 6, 2013 challenging the Department of Education’s (“DOE”) recommended classification and program recommendation and seeking placement at the (Par. Ex. A). I was designated to hear this matter on March 12, 2013, after the prior hearing officer recused. An impartial hearing was held before me on May 20, 2013. The compliance date was extended on one occasion to allow for receipt of the transcript and rendering of the decision, with a final compliance date of June 5, 2013. (IHO Ex. II).
On January 22, 2013, the Committee on classified , and recommended placement in a New York State approved residential placement. (DOE Ex. 1). The parent no longer disputes her classification or her program recommendation. (Tr. pp. 6-7). The only issue for hearing is whether the DOE made a timely placement offer pursuant to the January 22, 2013 IEP. (Tr. p. 8).
, an Educational Administrator at testified that the case was received at the CBST in March 2013, but returned to the CSE for additional information (an updated social history and information regarding outside services the student may have been receiving); and for completion of the section of the IEP regarding transition activities. (Tr. pp. 10-11). As of April 9, 2013, the CBST had received the information it requested, and the case was accepted. New York State approved schools. The parent cooperated with the interview process. (Tr. pp. 11, 16).
. The parent could choose from three schools ( and the case would be returned to the CSE to finalize the placement process. (Tr. p. 18). The CSE would have to reconvene, revise the IEP and schedule an admission date. (Tr. p. 12). He testified that the mother was informed about acceptance at and that he just learned about acceptance at and left the mother a telephone message about it. (Tr. p. 12).
Mr. testified that the parent referred the case to the CSE for on January 7, 2013. (Tr. p. 14). He stated that the placement due date would usually be 30 business days from the date the case was received at the ; however, the case was returned for additional information. (Tr. p. 15).
Mr. testified that is an approved out-of-state placement; however, the may not pursue this as an option unless the student is rejected from all available in-state schools. (Tr. pp. 19-20).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982]. The school district must identify a school which is capable of implementing the IEP. See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009).
More than 60 days have passed since was referred , and recommended for placement in a New York State approved residential placement. I find that issuance of a is the appropriate remedy. See Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982]; Application for the Review of a Determination of a Hearing Officer, Appeal No. 12-039, p. 13.
Therefore, it is hereby ordered that the DOE shall forthwith issue a letter. Dated: May 31, 2013
________________________
DORA LASSINGER, ESQ.
Impartial Hearing Officer DL;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
PARENT
A Impartial hearing request, 3/6/13, 4 pages B IEP, 6/20/12, 10 pages C Report card, 11/20/12, 1 page D Student permanent record, undated, 1 page E Student attendance record, 12/17/12, 1 page F Cumulative cut list, 12/17/12, 1 page G report, 2/9/13, 7 pages H Student attendance record, 2/27/13, 1 page I letter, 4/19/13,[1] page J , undated, 7 pages K undated, 11 pages L procedures, May 2002, 16 pages M with appendix, 12/18/81, 21 pages N order with exhibits, 7/8/82, 7 pages O stipulation excerpts, 7/28/88, 5 pages
DEPARTMENT OF EDUCATION
Footnotes
[1] IEP, 1/22/13, 13 pages IHO I Pre-hearing conference summary, 4/8/13. 1 page II Case follow-up sheet, 5/20/13, 1 page